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Clashing views, votes on Kagan

She’s a liar, a political hack and unprepared.

Reduced to the most basic elements, that's essentially what Sen. Jeff Sessions (R-Ala.) said about Supreme Court nominee Elena Kagan during the Senate Judiciary Committee’s vote this morning. Take, for example, this Sessions offering: “The nominee lacks the experience, the intellectual rigor that you develop from the full time practice of law or from serving as a judge. She’s had neither of those experiences. And I think it showed in her testimony. You may not agree. In my opinion her testimony lacked the clarity, the strict intellectual honesty that I think we should look for in a nomination to the Supreme Court.”

As Seth Myers of Saturday Night Live might say, “Really? Really?" Did Sessions and I watch the same proceedings? I don’t understand how he can say with a straight face that Kagan performed poorly at the hearings. She tap danced around answers the way every modern nominee does, but she showed a mastery of the subject matter, whether discussing the First Amendment, executive power or the commerce clause. And she provided significant insight on how she would approach the job of judging.

But Kagan could have hit a grand slam, completed a hat trick, and performed in a manner worthy of every sports metaphor known to man and Sessions probably would have voted against her. Why? Because he doesn’t want a (likely) liberal on the court. It’s that simple. (The final Judiciary Committee vote was 13-6, with every Republican voting no except for South Carolina’s Lindsey Graham.)

Now, contrast Session’s near-ad hominems with the critique by Graham, who praised Kagan as smart, funny and well-qualified. Graham made clear that Kagan would not have been his choice had he been asked to pick a successor to retired Justice John Paul Stevens. For starters, Graham said, she’s a liberal; what else would you expect from a Democratic president? But he voted for her anyway.

Like it or not, he said, elections have consequences, and the person who wins the right to occupy the White House also wins the right to name justices to the high court. The Senate should confirm these nominees unless they display a serious professional or ethical infirmity and senators have no business voting against a nominee because of her judicial philosophy unless it lies far, far outside of the mainstream. While “judicial activism” became a buzzword during the hearings, Graham raised the possibility that lawmakers had become “legislative activists” by trying to usurp the president’s prerogatives in choosing nominees that reflect his judicial philosophy. And this “activism” cuts both ways. Just wait until a Republican regains the White House and watch how quickly Democrats change their tune.

By Eva Rodriguez  | July 20, 2010; 3:37 PM ET
Categories:  Rodriguez  | Tags:  Eva Rodriguez  
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"Because he doesn’t want a (likely) liberal on the court. It’s that simple."

Remember, then-Senator Obama expressly stated in a floor speech that he would vote against John Roberts because, even though he considered him qualified, he disagreed with Roberts' politics. There is a long tradition of this approach in the Senate. It's always invoked by the party out of power and criticized by the party in power, but it's not historically unusual.

Posted by: tomtildrum | July 20, 2010 5:49 PM | Report abuse

Eva Rodriguez's last words on this are only too true. The opposing party from a president will complain and vote against a supreme court justice nominee. I don't take Sessions' remarks seriously any more than I took Boxer's remarks when she stated John Roberts lacked the right stuff.
Paritsans can debate the motivations of two ideologically different current justices, Roberts and Breyer, but no reasonable person could ever disparage their qualifications. That would be ridiculous.
Elections do have consequences, and while most people don't factor justice nominations into their decisions, we should.

Posted by: slatt321 | July 20, 2010 5:55 PM | Report abuse

The voters of South Carolina should vote to impeach Senator Graham,because his mental acumen seems to be diminishing: example he stated that Ms Kagan was not someone he would have chosen to be a supreme court justice but he voted for her: that's what used to be known as talkingout of both sides of your mouth.

Posted by: jdharwell85 | July 20, 2010 8:34 PM | Report abuse

jdharwell85 I have a little different take.

It's sets a really bad, very precarious precedent if senators only vote to confirm nominees they agree with on politics. Soon enough we conservatives are going to have the Presidency back, but we may or may not have the Senate. When it becomes that partisan, the opposition will just lock up a nominee.

Kagan will replace a liberal with a liberal. But the roof on the Capitol Dome will melt down when Justice Kennedy retires; that will be a real show.

Posted by: slatt321 | July 21, 2010 12:19 AM | Report abuse

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