There's an intense debate going on behind the scenes among Republicans involved in the Elena Kagan Supreme Court nomination. It's about whether the GOP should to try to stop Kagan, because that's what Democrats would do in the same situation, or whether Republicans should concede that Kagan is qualified and vote to confirm her because the president has the right to expect the Senate to approve qualified nominees.
The debate began almost immediately after Kagan stood next to Barack Obama at the White House announcement on May 10. In an interview with MSNBC, Kenneth Starr, the former judge, independent counsel and solicitor general, urged the Senate to confirm Kagan, whom he called "so smart and so able."
"President Obama has chosen someone who is very qualified," Starr concluded.
A few days later, former Bush appeals-court nominee Miguel Estrada sent a letter to the Senate Judiciary Committee urging that Kagan -- a friend from their days together at Harvard Law School -- be confirmed. (At the same time, Estrada pointed out that Kagan is without doubt a liberal, no matter the spin about her supposed centrism.) "Elena Kagan is an impeccably qualified nominee," Estrada wrote. "(She) possesses a formidable intellect, an exemplary temperament and a rare ability to disagree with others without being disagreeable."
Estrada's letter resonated among Republicans because, to many in the GOP, he is the living symbol of a conservative judicial nominee mistreated by Senate Democrats. Smart, credentialed, with a fine record and impressive personal story, he was nominated by George W. Bush for a seat on the U.S. Court of Appeals in May 2001. Democrats blocked his nomination and ultimately resorted to a filibuster against him in 2003. In September of that year, Estrada withdrew his nomination. (Despite their friendship, Kagan, then a law professor at Harvard, didn't write a letter on Estrada's behalf.)
Today, the conservative expressions of support for Kagan have disappointed a number of Republicans who want a shootout over the nomination. They fully expect Democrats to cite that support ("Even Ken Starr says ...") over and over again during Kagan's confirmation hearings.
But the bigger problem conservatives see is that the pro-Kagan statements put Republicans at a disadvantage before the confirmation even begins. "What Miguel and Ken are trying to demonstrate is that the president deserves to have his nominees confirmed as long as they are qualified," says one GOP Senate aide. "The problem is, the Democrats don't do that, and so you unilaterally disarm."
Indeed, among Republicans, "unilateral disarmament" has become shorthand for the divide between two competing ways of approaching the Kagan nomination.
"This debate is the people who have a traditional way of looking at these procedural questions -- 'this is the way it's been done, and this is the way to do it' -- versus the people who say the Democrats have changed the rules and we should respond in kind," the aide says.
That's not an exaggeration. Regardless of all the talk about a nominee's qualifications, some leading Democrats have for years worked to establish a new, openly ideological standard for judicial confirmations. In 2001, Sen. Charles Schumer, one of Kagan's top supporters, held a hearing titled, "Should Ideology Matter?" His position was (and is) that senators should reject qualified nominees simply because of their views on issues. Schumer would like to put an end to the idea that the Senate owes the president confirmation of qualified nominees.
"This unwillingness to openly examine ideology has sometimes led senators who oppose a nominee to seek out non-ideological disqualifying factors, like small financial improprieties from long ago, to justify their opposition," Schumer said at the 2001 hearing. "This, in turn, has led to an escalating war of 'gotcha' politics." Schumer's solution was for the Senate to dump nominees who hold views unacceptable to Charles Schumer.
The Schumer standard versus the Starr standard -- that is the key to the debate going on among Senate Republicans. If the GOP chooses Starr and Democrats choose Schumer, it would indeed amount to unilateral Republican disarmament.
With 59 Democrats in the Senate, Kagan's confirmation is all but guaranteed. But how Republicans handle the nomination will reveal much about how they approach future confirmation battles.
Will they fight, or will they go along?