Which Confirmation Model for Kagan?

Carol Platt Liebau
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Posted: May 10, 2010 5:48 PM
As we enter into the confirmation period for Elena Kagan, whatever the outcome, Republicans could elicit at least one positive result by forcing Democrats to choose a Supreme Court confirmation model.

In the "old" (read: pre-Bork) days, there were three primary criteria a potential justice had to fulfill: Was s/he ethical?  Was s/he competent? Did s/he have a "temperament" problem?  If the answer to the first two was "yes," and to the third, "no," that was it.  An aspiring justice received bipartisan support and ascended to the bench.

And then came 1988 and Ted Kennedy's all-out assault on Robert Bork for his views.  Kennedy started the modern day confirmation brawls by arguing that Bork was "outside the mainstream."  Republicans largely resisted the urge to retaliate -- confirming Clinton nominees Ginsberg and Breyer (and Obama nominee Sotomayor) without undue unpleasantness -- even though their views were no more to the political liking of conservatives than Bork's were to liberals.

The nearly unhinged left-wing attacks on Justices Thomas and Alito -- along with those even on Chief Justice Roberts -- has raised the issue of whether the confirmation model has changed for good.  And that's what conservatives should be demanding to know from Democrats.

If it has, good to know.  Then it's all-out war against Kagan.  There's no reason to believe that conservatives are going to agree with either her decisions, or quite possibly her legal reasoning.  There are ugly questions to be asked about cheating scandals and potential anti-military bias.  If this is the model that's here to stay, then disagreeing with a justice's views is enough of a reason to vote against her -- and the transformation of the confirmation process into a political free-for-all is complete.

If Democrats, however, are willing to commit on the record to a return to the older confirmation model, then it's worth pointing out that Elena Kagan is well-credentialed, has no temperament issues, and -- barring any revelations -- no personal ethics problems.  She's not a conservative's cup of tea, but then, she's the nominee of the farthest-left president in American history -- so, if elections have consequences, what can one expect?

The only outcome that's absolutely unacceptable is for Republicans to continue to play by the pre-Bork confirmation playbook -- as they have, largely, with all Democrat nominees -- while the nominees of Republican presidents are routinely pilloried as "out of the mainstream," bigoted, hateful tools of the far-right.  Not only is it unfair in and of itself -- but it's dangerous.  It allows the left to redefine what constitutes "mainstream" thinking in the public's mind.

So which model is it, Democrats?