Politics is messy and complicated, and it seems like it has gotten extra messy since Obama took office. On many issues on the political agenda, Republicans are united against President Obama. Killing bills requires that Republicans maintain their 41-member “opposition coalition” in the senate.
Tom Goldstein at SCOTUSblog discusses what we can expect from senate consideration of the Kagan nomination, both in terms of process and substance. A topic that hasn’t received enough attention, however, is whether the war between Obama and the Republicans will carry over to the Supreme Court nomination. Will Republicans filibuster Kagan’s nomination? With the midterm elections coming up and the congressional session ending in December, would it be tactically smart for Republicans to delay confirmation?
1. Republicans will likely pick up seats in the senate as a result of the midterm elections. Republicans may be thinking: Let’s make Obama nominate someone in a new political context in January — one that will likely be more favorable toward Republicans. Force his hand and make him renominate Kagan (or someone else) in, say, a 55-45 senate instead of a 59-41 senate. Obama might even back down and change his nomination.
2. What basis would Republicans rely on for delaying Kagan’s nomination? Answer: the military recruiters/Solomon amendment issue. I believe that this issue, if framed effectively by Republicans, could become a significant obstacle to Kagan becoming a justice. Think of the hot-button nature of this issue: pro- versus anti-military in the context of a continuing war on terror and the issue of the U.S.’s volunteer army having a hard time maintaining numbers. Add to this one of the most polarizing issues in American politics: gay rights. Republicans could portray Kagan as anti-military and overzealous in her advocacy of gay rights. This portrayal of Kagan as an extremist on two hot-button policy dimensions would provide plenty of ammo to delay, and perhaps quash via the filibuster, her nomination. As a result, Obama would be forced to either renominate Kagan or find someone else who could muster the 60 votes necessary to proceed to an up-or-down vote.
3. What about the issue of having an 8-member Court? Having an 8-member Court for the start of October Term 2010 would benefit conservative interests. The Court would have 4 solid conservative votes, Kennedy (who has become more solidly aligned with the four more staunch conservatives), and the 3 remaining liberals. Having a vacancy on the Court would not bother Republicans on policy grounds. But if Democrats effectively emphasize the importance of filling a vacancy as soon as possible, perhaps Republicans would relent. As a side note, Justice Stevens could have made this vacancy issue moot had his retirement been conditional on the confirmation of his successor, which is what Justice O’Connor did (recall that she did not step down until Alito was confirmed).
While the chances of the Republicans delaying or even killing Kagan’s nomination are probably small, I believe it is a real and distinct possibility. Because of the fiery policy issues that it evokes, Kagan’s “military recruiters problem” provides an ideal vehicle for Republicans — if framed effectively — to wreak havoc on her nomination.