Elena Kagan is clearly going to be confirmed to the Supreme Court of the United States. At the same time, that’s the result of the highly contingent reality that with 59 Democratic Senators, it’s possible to get something over the 60 vote threshold just depending on Democrats and New England Republicans. SCOTUS nominees used to be regularly confirmed even by closely divided Senates because there were strong norms against SCOTUS filibusters. But those norms are rapidly eroding. The store begins with the abuse of the “blue slip” process then continues with filibusters of Bush’s circuit court nominees and now Erick Erickson takes a hard line against Kagan, deeming it “treason” for any Senator to fail to filibuster her nomination:
Senators have a duty under the constitution to “consent” to nominees or not to “consent” to nominees. Elena Kagan is too radical for a lifetime appointment to the Supreme Court. Senators would be committing a high act of confirmation treason if they allow this nominee to go on the court without attempting to filibuster her nomination.
Of course there were some similar notions voiced from the left, albeit with less ridiculous rhetoric, about Samuel Alito’s nomination. The point’s not to say that Erickson is right or wrong about Kagan (though clearly I think he’s wrong) but just to observe that the current set of Senate rules only functions in the context of norms that no longer apply. And those norms aren’t coming back. Instead, things are shifting in the other direction. And the sooner we recognize that and start changing the rules to something that better-suits today’s environment the better off we’ll be.