With Democrats holding a 59-to-40 majority in the U.S. Senate, it is virtually certain that Elena Kagan will be confirmed to a seat on the Supreme Court when the Senate takes a vote later this month – unless Republicans stage a filibuster.
A regular confirmation vote only requires a simple majority to prevail, but a filibuster requires 60 votes to break. A filibuster in the modern Senate is nothing like Jimmy Stewart’s dramatic portrayal in “Mr. Smith Goes to Washington.” In the modern Senate all that is required to lock up debate on a subject is for one senator to send a note to Senate leadership indicating a desire to “hold” a particular piece of business. The hold remains in place until the senator requesting the hold releases it or 60 senators vote to break it.
Democrats used the technique routinely during the Bush administration to block judicial appointments they considered too “conservative,” but Republicans – who complained bitterly about Democrats’ use of the tactic – are reticent to employ it themselves.
But Kagan is a product of the extreme Constitution-rejecting Left, and her record shows she has thoroughly embraced that philosophy. Raised and schooled in New York and Massachusetts, Kagan began her law career being mentored by extremist Judge Abner Mikva and activist Justice Thurgood Marshall. She went on to become the Dean of the Harvard Law School, where she blocked military recruiters from school facilities as a protest against their policies on homosexuals in the service. She then served in the Clinton administration working to circumvent the Second Amendment and lumping the National Rifle Association in with the Ku Klux Klan, saying both were “bad guy” organizations. She has also advocated for enemy combatants to be allowed access to our civilian courts.
As the president of The Committee for Justice, Curt Levy, puts it, “Kagan is an ‘ivory tower’ liberal who called judicial activism ‘a thing of glory,’ mourned ‘socialism’s decline,’ denounced ‘Moral-Majority-backed’ opponents of abortion and longed for ‘a more leftist Left.’”
Author and researcher John Lott, who knows Kagan personally from their shared time at the University of Chicago, had this to say about Kagan’s confirmation: “No senator can seriously claim that he strongly supports gun ownership and still vote for Kagan’s confirmation.”
The Senate Judiciary Committee is scheduled to vote on the Kagan nomination on July 13 with a confirmation vote of the full Senate expected on July 20. If Republicans fail to place a hold on the process, Kagan will easily be confirmed, even if no Republicans vote for her.
The NRA’s recent pledge to score the confirmation vote, counting it against senators when they come up for reelection, might convince a few Democrats to vote against confirmation, but that won’t be enough to win a simple majority vote.
But if Republicans filibuster, Democrats will have to get all of their pro-gun members to buck the NRA, and they would have to draw in at least one Republican vote to break the filibuster. Even if Democrats are able to break the filibuster, they will not do it without taking some damage, and that could help ensure that Obama’s next Supreme Court pick – he probably will get at least one more – will be more of a moderate.
Since Kagan would be replacing ultraliberal Justice John Paul Stevens, some contend that her confirmation would be a wash, simply maintaining the current 5-4, right-left mix on the Court. That is a superficial analysis. Stevens grew into his God complex over a period of 30 years; Kagan would be starting out as a radical ideologue and, at only 50 years old, she will likely be able to grow into her agenda over a period of three or four decades, plenty long enough to eclipse Scalia and Kennedy, who are both 74, and probably long enough to outlast Thomas, 62, and Alito, 60, as well.
Together with Sotomayor, Kagan would push the left-leaning bloc of the court much farther to the Left and further into the future.
Justice Ginsburg is now the oldest member of the Court and is unlikely to be around much longer. Surviving two bouts with cancer, she has surprised court watchers by lasting as long as she has. The death of her husband in June fueled more speculation that she will step down soon, but I don’t expect her to quit as long as she feels she is able to do the job. Still, she is the most likely to be the next to leave, and there is a high probability that she will go before Obama’s term is up, giving him an opportunity to appoint a third Justice.
While Justice Ginsburg is considered extremely liberal, she has occasionally demonstrated some respect for the Constitution – as long as it doesn’t conflict too dramatically with her personal preferences.
Such does not appear to be the case with Kagan or Sotomayor. If Kagan’s confirmation is not blocked, or at least delayed by very strong resistance, the next Obama appointment will be just as extreme, and the court – and the Constitution – will be in even more serious jeopardy.
The Firearms Coalition is a single-issue organization. While our focus is the Second Amendment – and obviously Supreme Court appointments are critical for protection of the Second Amendment – our true single issue is not guns. Our single issue is the Constitution of the United States, and we oppose any threats to its viability and continued existence.
We see the Second Amendment as primarily a last-resort, emergency recovery clause to protect the Constitution. It’s like a fire extinguisher. It’s there for emergencies, and we make sure that it remains fully charged and within reach just in case we ever really need it.
No one expects – much less hopes – to ever have to use a fire extinguisher. Nonetheless, it’s a good idea to keep one handy and know how to use it. But when misguided lunatics begin spreading gasoline around the house and playing with matches, firefighters need to address the threats directly, not just guard the fire extinguisher and wait for the fire to start.
Elena Kagan represents a serious threat to the Second Amendment and to the entire Constitution, and she must be opposed with every ounce of strength we can muster. Senators must filibuster her confirmation and reject this outrageous nomination.