President Obama is right. The attacks on Supreme Court nominee Elena Kagan’s record are “pretty thin gruel.” But lacking any reason to oppose the President’s nominees has never stopped Republicans from offering up kneejerk opposition in the past. For the most part, today’s hearing has been no different. In the absence of any real case against General Kagan, GOP senators have largely followed one of three models during this week’s hearings.
- The Sessions/Cornyn/Coburn Model: Double-Down on the Crazy
On the eve of the hearing, Sen. Jeff Sessions (R-AL) demanded that Kagan embrace a radical “tenther” view of the Constitution and strike down laws conservatives don’t like. Yesterday, Kagan made very clear that she will not agree to turn the Constitution into the right-wing’s plaything. Nevertheless, many of the Committee’s conservatives refused to let this issue drop. Sen. John Cornyn (R-TX), for his part, claimed that the recently enacted Affordable Care Act violates the Tenth Amendment – a position that places him well to the right of even ultra-conservative Justice Antonin Scalia. Sen. Tom Coburn levied similar attacks against health reform. Not to be outdone, Sessions based much of his questioning on the writings of Richard Epstein, a fringe legal academic who describes Social Security and Medicare as “deeply flawed from the outset” and who supports the nearly complete repeal of anti-discrimination laws.
Amusingly, Sessions also spent much of the day lying about lying. In multiple press interviews, Sessions accused Kagan of not being “accurate” when she said that military recruiters were allowed on Harvard campus during every single day that she was dean of the law school. Sessions, however, could not actually cite a single false statement by Kagan, and Kagan’s version of events is supported by her very conservative predecessor as Harvard’s dean.
- The Graham Model: Fight Tomorrow’s Battle
Easily the most effective GOP questioner was Sen. Lindsey Graham (R-SC). For one thing, Graham was the only Republican who directly acknowledged the strength of Kagan’s qualifications for the Supreme Court. He read at length from a letter by ultra-conservative attorney Miguel Estrada, which praised Kagan and endorsed her nomination, and he cited several briefs Kagan had signed that he agreed with. By the end of his time at the microphone, Graham — who also supported Justice Sotomayor — looked a lot like a “yes” vote.
At the same time, however, Graham extracted some valuable concessions from Kagan. During the Bush Administration, Estrada was himself a nominee for the D.C. Circuit, but his nomination was blocked after Bush officials systematically blocked the Senate from receiving any information about his views. Today, Kagan described Estrada — a personal friend of hers since law school — as qualifed to sit both on the D.C. Circuit and on the Supreme Court, and she offered to write Graham a letter saying as much. Although Graham also tried and failed to get Kagan to endorse legislation formalizing military commissions and limiting Miranda, her endorsement of Estrada could prove quite valuable to conservatives if one of their own is picking judges in the future.
- The Kyl Model: Get Really Defensive
Chief Justice Roberts and his right-wing collegues were the big losers during yesterday’s hearing, a several of the Committee’s more progressive members spent the day highlighting the Roberts Court’s love affair with powerful corporate interests. Faced with such a damning case, Sen. Jon Kyl (R-AZ) went on the defensive. During the hearing, Kyl tried, unsuccessfully, to claim that the Roberts Court was just following the law when, in case after case, it granted sweeping legal immunties to corporations. And he even called the case against the Roberts Court “fraudulent” on a right-wing radio show.
What Kyl could not do, however, is offer any explanation for why corporations should be immune from a 60 year-old campaign finance law, why banks and drug companies shouldn’t have to follow state law, why a century-old rule banning price fixing should cease to exist, or why women and older workers should not be protected against discrimination.