Today the Senate Judiciary Committee voted on Elena Kagan’s nomination, approving it in a 13-6 vote. Predictably, the vote went along party lines, with one notable exception. Republican Senator Lindsey Graham not only voted for Kagan, he explained at length why he did so, espousing his view of how the confirmation process ought to work:
No one spent more time trying to beat President Obama than I did…But I understood we lost. President Obama won and I’ve got a lot of opportunity to disagree with him. But the Constitution in my view puts a requirement on me as a senator to not replace my judgment for his, not to think of the 100 reasons I would pick somebody differently, or pick a fight with Miss Kagan. It puts upon me a standard that stood the test of time, is the person qualified? Is it a person of good character? Are they someone that understands the difference between being a judge and a politician? And, quite frankly, I think she’s passed all those tests.
(emphasis added; quote courtesy of Huffington Post) Senator Graham’s questions in turn raised the question for me of whether he’s right. For his part, when Obama served in the Senate, his attitude was markedly different. Obama voted against the confirmation of both John Roberts and Samuel Alito, and in each case he spoke at length about why he was doing so, despite the fact that he thought both men were clearly qualified. In explaining his ‘no’ vote on Alito, Obama said he was concerned that Alito “consistently sides on behalf of the powerful against the powerless” when it came to interpreting the Constitution. He also described his view that the Senate’s “advise and consent” role in confirmations should include “an examination of a judge’s philosophy, ideology, and record.” In the Graham v. Obama battle of rhetoric, I find myself kind of torn. It’s always tempting to try to take politics out of the judiciary– it’d be great to believe there is such a thing as objectivity when it comes to judging. But I think that’s a futile effort. Judges are people, with biases and political leanings and life experience, and no matter how much they pretend those things don’t matter, they do. Given that the ideological background of judges does make a difference, why shouldn’t senators take ideology into consideration? But then again, senators’ insistence on opposing nominations for political reasons–for lower court judges as well as SC nominees– results in a lot of deadlock and a bunch of unfilled seats on the courts, which is clearly not ideal. *** Obviously, the important point here is not that Lindsey Graham has such a persuasive judicial philosophy that he has purportedly caused Senator Dick Durbin (D-IL) to reconsider his own decision-making process (“I reflected on some of the things that I have said and how I have voted in the past, and thought that perhaps his statement suggested a better course” said Durbin). Nor is it that Kagan has overcome another hurdle on her seemingly inevitable path to the Supreme Court. No, the important thing is that with one Republican vote already on Kagan’s side, I’m that much closer to winning my bet against Poplicola– who, I must point out, hasn’t even made the slightest attempt to defend his misguided conviction that Kagan will receive precisely 60 votes. (– I finally did. -Pop)