Saturday, May 15, 2010

The Right Republican Tactic Towards Kagan

Miguel Estrada -- the talented conservative Latino judge who Democrats famously blocked from being appointed to the DC Circuit (and thus, the Supreme Court) -- has come out and endorsed Elena Kagan's nomination. This "may have the bizarre result of fueling suspicion from some on the left who worry that Kagan is a right-winger in Dem's clothing." I don't think this is bizarre at all, and part of me thinks it might be calculated. There are plenty of liberals grumpy over the Kagan nomination (I'm relatively neutral on the matter). But Republicans can't block her -- they already know she'll be confirmed. So they have two choices.

First, they can wage a furious but futile battle against the Solicitor General, hopefully riling up their base in the process. And that would be the standard tactic. But it seems relatively superfluous -- the GOP base is plenty riled, and there are plenty of things to be done between now and November to keep them riled. Meanwhile, the standard Republican temper tantrum is the best way to pave over the fissures that are developing over the nominations. Liberals may not like Kagan, but they'll be reminded of how insane Republicans are, and for the past few cycles "Republicans are batshit crazy" has been the best mobilizing tool the Democrats have ever had.

Alternatively, they can recognize the writing on the wall, and give her a nice reception, and a healthy confirmation margin. What will happen? Well, the Republican base might pitch a fit. But, as I said, they'll get over it between now and November. And in the meantime, they'll have scored two essential victories. First, they'll be able to claim the high ground on the judicial confirmation fight. Right now, it is buried in a mishmash of "he started it". If Republicans can say, quite plausibly, "Obama nominated one of his top choices -- not a compromise -- a solid, unabashed liberal whom we could have attacked over (among other things) the Solomon Amendment, and we confirmed her with virtually no fuss", they will be in a dominant position the next time they're occupying the Oval Office (not to mention if Obama ever gets the chance to nominate a true liberal's liberal).

But second, and more importantly, Republican behavior like this would crack the left wide open. Liberals are already suspicious that Kagan is our own version of Souter. If Republicans treat her like they think she's the best gift that ever happened to them with this President and this Senate, there will be no containing the internal strife. The liberal base will be demoralized, perhaps irrevocably, and the already pro-GOP fundamentals will lead them to a rout. And the sacrifice? Justice Kagan, who, to reiterate, will be on the court anyway. Oh, and maybe a slightly less reared-up Republican base -- but if they take back the House, who cares if the base is happy or sad about it?


joe said...

With these Tea Parties declaring open season on very doctrinaire incumbent Republicans, they have more to lose by playing nice. Any high ground approach would be quickly forgotten by everyone but the the same nutters who still say "wise Latina" like those two words are a complete (and compelling) argument all by itself.

joe said...

And let's not forget the PROTECT OUR TROOPS angle of the Solomon Amendment thing. On top of all the normal culture war stuff?

rob said...

was Excellent . thaks .

Anonymous said...

I think this analysis collapses after a little thought.

First, the "moral high ground" that Republicans would gain in a nomination fight is practically worthless. Ginsburg was about as close to an ideal confirmation as possible (93-6), Breyer was only slightly more contentious (87-9). No reciprocity was shown for Roberts, with a much more contentious hearing and a 78-22 vote. And then there was Alito. It is a fantasy to believe that if Republicans play nice this time, Democrats will do the same: if this were true, the battles would be over. In which case, however little Republican "base riling" is worth, it's worth more than that.

As for playing the short game and trying to split the Democratic base by playing nice, I actually have more respect for Democrats than to think that they would fall for such a silly trick. Kagan is no Souter, and is not about to start casting votes with Scalia.

In the meantime, her inevitability is not what you think it is. The hearings are yet to come, and the Solomon issue, particularly, if played right could make her a significant enough political liability to eliminate her from running. It's a long shot, akin to betting a hard eight. But every so often the dice roll right.

joe said...

Anonymous is of course being very selective about his history. No mention of the Scalia or Kagan votes here. Just typical sandbox "he started it."

Superdestroyer said...

IF the Republicans were relevant to politics or had any chance of long term survival, then what they do may have some relevance.

Kagan will end up being the Democrats Souter in that she is talked about as being a moderate but in ten years she will probably end up to as the most liberal justice on the court. I doubt if freedom of speech or religion will survive is more Kagans end up on the court.

joe said...

Because clearly liberals have historically shown no interest in viewing the First Amendment (which, y'know, provides for freedoms of speech and religion) expansively. Yeesh, at least when the NRA makes hysterical noises about liberals being a step away from confiscating all guns they show some understanding of what the textbook "liberal" and "conservative" stance on the issues is.

Superdestroyer said...

Look at how the left and right treats speech. From campus speech code to treating a burning cross very differently than a burning flag, the left desperately wants to regulate speech based upon its content. Kagan will definitely find any restrictions based upon content as constitutional. Remember, all the state needs is a compelling interest and no right is safe.

David Schraub said...

I'm not sure what distinguishes the (ill-defined) "left" from the (ill-defined) "right" in your typology. Both the left and the right get cranky when academics say things they dislike. Liberals want to ban burning crosses, conservatives want to ban burning flags.

Except wait -- that's too simplistic (huge surprise).

The flag burning case (Texas v. Johnson) breakdown was a 5 vote majority of Brennan (liberal), Marshall (liberal), Blackmun (liberal), Scalia (conservative), and Kennedy (conservative). The 4 dissenters were Rehnquist (conservative), White (conservative), O'Connor (conservative), Stevens (liberal).

The cross-burning case was split into three camps. The first held that a statute barring cross-burning was valid only if restricted to cases where there was an "intent to intimidate". That camp consisted of Scalia (conservative), O'Connor (conservative), Rehnquist (conservative), Stevens (liberal), and Breyer (liberal). The second would have held that any statute targeting cross-burning would be unconstitutional as content-based under the first amendment. That group consisted of Souter (liberal), Ginsburg (liberal), and Kennedy (conservative). Finally, Justice Thomas (conservative) would have found cross-burning unprotected speech across the board.