Chances of a Kagan Filibuster Unlikely (AP)

The AP reports today that Republicans are unlikely to filibuster Kagan’s nomination. Key quote from Senator Kyl, the Republican whip:

”The filibuster should be relegated to the extreme circumstances, and I don’t think Elena Kagan represents that,” said Kyl, a member of the Senate Judiciary Committee.

The story reports that Republicans plan to aggressively question Kagan on her lack of judicial experience, lack of a paper trail, and the military recruiters issue. No surprises there….

Looks like we’re in for yet another “vapid and hollow charade.”

CLARIFICATION:  “Vapid and hollow charade” is a direct quote from Kagan’s 1995 University of Chicago Law Review book review of Stephen Carter’s The Confirmation Mess . This quote in particular — and the article in general — has received a great deal of attention from bloggers and the media. The article can be downloaded HERE; see p. 941. The full sentence is: “Subsequent hearings [to Bork] have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis.”

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4 Responses

  1. Bryan Gividen says:

    I don’t know if the last line is meant to be indicative of your actual feelings about confirmation or if they are a sardonic remark directed at Kagan, but I don’t believe that either is actually warranted.

    To date, it seems like Kagan has been more forthcoming about her substantive views, albeit in private meetings with Senators. This is in contrast to every nomination meeting from Ginsburg to Alito where the response to any substantive question is, “I can’t really talk about that.” In that sense, I could see Kagan avoiding a “vapid and hollow” confirmation meeting by actually discussing a few substantive issues. The Republicans can disagree with her on those issues, confirm her, and, as Eugene Volokh pointed out, still use the confirmation hearings effectively. (

    At the same time, I think characterizing most nomination hearings as “vapid and hollow” can accurately describe the duck-and-cover response that has been implemented over the past two decades. A political deadlock via filibuster is not sufficient or necessary for or to avoid a “a vapid and hollow charade.”

    Then again, I could also have my humorous sarcasm meter off and missed the good natured jab at the end.

  2. Brandon Bartels says:

    Bryan – See my clarification in the original post.

  3. Bryan Gividen says:


    The clarification is helpful; however, I was aware the phrase was Kagan’s own writing. The point I tried to make in my first post is that I thought your use of Kagan’s phrase either (1) affirmed her characterization and extended it to her nomination hearings or (2) sardonically attacked her for ever using the phrase. In doing so, I thought you were mistaken because either use would not be an accurate accusation to make. The first use would be incorrect because, thus far, Kagan has been more open about her substantive views than other justices, or at least that’s my perception of it. Furthermore, she may have an in depth discussion on her substantive views at the hearings. The second would be incorrect because I don’t think that her use of “vapid and hollow” is too far from the mark when discussing the confirmation hearings of SCOTUS justices in the era she wrote that. It may be entirely appropriate for them to avoid substantive discussions, but I don’t think it is entirely off to call them hollow.

    (As an analogy, confirmation hearings may be the nomination process what oral arguments are to the decision of an appellate case: both are helpful and have a purpose, but the real substance comes in the background work done before hand.)

  4. Brandon Bartels says:

    Hi Bryan — I see what you’re saying. Sorry for the misinterpretation on my part. Just to clarify, my use of Kagan’s phrase was intended to reflect my thinking that Kagan’s hearing will not differ from the post-Bork hearings. My guess is that it will mirror Sotomayor’s hearing. Republicans will aggressively question her, and she’ll respond by saying she’ll do what the law requires. And don’t forget the old standby, “Justices shouldn’t make law, they should interpret the law.”