Elana Kagan has just sailed through the Senate Judiciary Committee on a party-line vote (except Lindsey Graham, of course, who maintained his respectable but – to my mind – overly deferential “elections have consequences” line). This vote comes as no surprise to anyone who’s been keeping half an eye on the Kagan nomination. The only senator whose position wasn’t obvious after the confirmation hearings was Arlen Specter, who continued his self-serving ways in criticizing the nominee for the majority of an op-ed before announcing that her approval for televised Supreme Court hearings and Thurgood Marshall constituted “just enough” to win his vote. (This is clearly an attempt to curry favor with the administration and become an envoy to Syria—call it a conversion on the road to Damascus.)
The statements made by those opposing Kagan show that this opposition is based not on petty partisanship or the politics of personal destruction but on principled concerns over the nominee’s being a rubberstamp for any assertion of congressional authority. Senator Hatch particularly stands out as someone who’s struggled with the choice before him and honorably decided that Elena Kagan was a bridge too far. Senator Coburn also continued the sound line of reasoning that led his “fruit-and-vegetable” questioning to be the highlight of the confirmation hearings.
Kagan is eminently qualified but it is not at all clear that she sees any constitutional limits on government power.