July 1, 2010

Dial It Down from 11, Already

Hatched by Dafydd

Not only is "resistance" to Elena Kagan's nomination to the Supreme Court futile, it's pointless: The retiring Justice she will replace, John Paul Stevens, is every bit as liberal as she... which is to say vastly more liberal than the conservative wing of the court (Justices Roberts, Alito, Thomas, and Scalia); rather more liberal than the swingin' justice, Anthony Kennedy; and significantly less liberal than the extreme left edge of the Court, Justices Ginsburg and Breyer. Probably around where Sonia Sotomayor sits.

I grant that Kagan is a political creature, and that she will rule politically during her time on the bench. I grant that she monkeyed with the report from the American Congress of Obstetricians and Gynecologists on the unnecessary nature of "partial birth" infanticide. I grant that she is anti-gun. I grant that she would be a shill for Barack H. Obama, or any future radical president. But none of that makes her worse enough than Stevens to sound the panic button.

So if Republicans go ape on the Kagan nomination, if we do anything radical to delay or obstruct her confirmation vote (i.e., a filibuster), it only damages our credibility for a future, more urgent fight for a conservative seat.

Suppose Scalia or Thomas takes ill in the next year -- or worse, the next few months -- and he has to resign from the Court. If we Republicans have already made hysterical claims about Elena Kagan replacing John Paul Stevens, who will believe us when we make even more hysterical claims about (for example) Cass Sunstein or Erwin Chemerinsky replacing Antonin Scalia?

While it's true that we go to war with the Army we have, not the Army we wish we had (Rumsfeld) -- and against the enemies we have, not the enemies we wish we had (Big Lizards) -- nevertheless, we still have the option of picking the battles we want. We don't have to fight uphill in the fog, inadequately armed, against an impregnible enemy position; we can hold our fire until we have a better chance and a more meaningful goal, either hanging on to the four conservative justices (and one swinger) we have until the administration changes... or mayhap something even more positive.

Suppose it's 2013, and we have a Republican president again. If either Ruth Bader Ginsburg (who will turn 80 in 2013) or Stephen Breyer (who will turn 74) is forced to retire, we have the chance to replace a liberal with a conservative, making a solidly conservative Court. (Or if Anthony Kennedy, who will turn 76 in 2013, retires, we can replace a justice who votes "conservative" half the time with one who votes "conservative" perhaps 85% of the time.)

Those are the fights worth having, the chance to change the Supreme Court in an originalist direction for a generation. Those are the fights for which we should pull out all the stops, including the "nuclear option" to cut off a purely political Democratic filibuster of a Supreme Court nominee. But we cannot sell such dug-in trench warfare to the American people unless we've kept our hands relatively clean in earlier fights, where less was at stake. Otherwise, we look like the pols who cried wolf.

Republican senators on the J-Com will make as much of a case against Kagan as reasonable. Then they will vote more or less along party lines to throw it to the full Senate. At that point, we need to sit down, take a stress pill, and just let the vote proceed in an orderly fashion. She'll be confirmed; we'll keep our powder dry and live to fight another day -- when we have real reason to fight, and when we have better chance than an iceman in a volcano.

Hatched by Dafydd on this day, July 1, 2010, at the time of 2:04 PM

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Comments

The following hissed in response by: Bart Johnson

Winners never quit.
Quitters never win.
If we give up, we look like nice guys? Did you ever try to sell that to the VC?
It is better to have tried to win and failed than to try to fail and succeed.
Who are we trying to impress? The ONLY thing that matters is the vote. Can we sustain a filibuster or not?
If we try, and fail, whose opinions do we care about? Surely you don't think the Democrats will be nicer if we give up without a fight, do you?

A coward dies a thousand deaths, a brave man dies but once.

Just once, can't we get some spine in the Senate Republican?

The above hissed in response by: Bart Johnson [TypeKey Profile Page] at July 1, 2010 4:54 PM

The following hissed in response by: snochasr

Sorry, but it's flawed thinking. You have bested the minds of our seated GOP Senate stalwarts, granted, but that's not a high bar. The point here ought to be that you should pick your battles, but that there are some fights too important to surrender in. Allowing another and much younger liberal onto a court that, by all originalist intent should have NONE is one such battle, and what you are urging is surrender based on the possibility of choosing improper tactics-- rather like Obama's new "presidential medal for restraint under fire." We don't have to claim that she is a wild-eyed radical. We only need claim that she was dishonest and failed to answer the legitimate questions put to her. We can openly quote her confused and obfuscatory answers in commercials. We can point out that she is unqualified, having never been a judge, and that those few things she HAS done and said on the record do not speak to a judicial temperament. There's nothing wrong with exposing the facts and letting the public draw their own conclusions. THEN when we lose, which we probably will, we have laid the groundwork for an equal respect for proper debate from the other side. And we'll never get it, regardless of what we do now.

The above hissed in response by: snochasr [TypeKey Profile Page] at July 1, 2010 4:55 PM

The following hissed in response by: Dafydd ab Hugh

Snochasr, Bart Johnson:

Who are we trying to impress?.... Surely you don't think the Democrats will be nicer if we give up without a fight, do you?

I'm counting on them not being. The people we're trying to impress are not the Democrats, they're the American voters.

If we throw everything plus the pots and pans at Kagan, and we lose anyway -- which we will, since the Senate contains several RINOs -- we will not look like noble warriors; we'll look like fools, hysterics, and radicals.

Americans react very negatively to radicalism; that's why they've turned so strongly against Obama. But if we paint ourselves as "just as radical" but on the right, we lose that advantage for November.

It is better to have tried to win and failed than to try to fail and succeed.

But best of all is to try to win -- and succeed. However, requires picking a battlefield more favorable to us on which to confront the enemy.

You don't have to "tell that to the VC," by the way; they understood it very well: After Tet, they chose to fight on the battlefield of Western public opinion and our free and fair elections; and they turned a horrific defeat into a tremendous victory.

I don't know about you, but I think Republicans can be at least as smart as the Vietcong.

A coward dies a thousand deaths, a brave man dies but once.

But the strategic man puts the mission ahead of his personal suicidal glory. Why die just to make a grand, symbolic gesture, when we can live and work for freedom?

I know it's harder to wait for a winnable opportunity than to launch a kamikaze attack, but the object is to win -- not see who's got the bigger huevos.

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at July 1, 2010 7:05 PM

The following hissed in response by: Bart Johnson

I think you and the MSM are reading the public incorrectly.
The MSM thinks the people are anti-incumbent. The people are anti-[spending borrowed money on the wrong things].
That's why the Republicans lost control in '06, they were spending like Democrats.
One can say "no" without shouting "HELL NO!" We can say we are not opposed to Ms. Kagan, we are opposed
to "living Constitutions", use of foreign courts to
judge our law, Partial Birth Abortions, altering documents after they are signed ... ...

If we post the list of objections, any one of which disqualifies a judge, and say we find
her unsuitable, that should show a reasoned objection to a specific applicant.

We won't convince many lefties, but the public at large should not be antagonized.

I really don't like to give up without trying.

The above hissed in response by: Bart Johnson [TypeKey Profile Page] at July 1, 2010 7:34 PM

The following hissed in response by: snochasr

Better to stand on principle and win. You are absolutely right on that. But there are three other combinations, in ranked order for this and most political situations: One can forsake principle and win. This is the RINO creed, and its probablility of success falls as voter hunger for courageous leadership rises. Conversely, one can stand on principle and lose, but that "solid conservative" "Tea Party" approach is not only necessary in these terrible times, but is on the ascendancy. The final choice, the least desirable, is to forsake principle and still lose, yet that seems to be what you are recommending.

If I were advising my Senators, GOP or otherwise, I would tell them to "put politics aside, decide what is right and then do it. The politics will take care of themselves. If you can't explain making the right vote, how are you going to explain the wrong one?"

The above hissed in response by: snochasr [TypeKey Profile Page] at July 2, 2010 5:51 AM

The following hissed in response by: LarryD

Kagan is as qualified as Harriet Meyers was. No reason to cut Kagan any slack, nor Obama either, after the way his administration been run.

The above hissed in response by: LarryD [TypeKey Profile Page] at July 2, 2010 8:32 AM

The following hissed in response by: Bart Johnson

Where do you see that I advocate abandoning principle? Quite the opposite, I say stand by
principle, state the multitude of reasons Ms. Kagan is unqualified (book banning do it for you?)
and do everything we can to keep her off the Court.
If some are offended, I am not concerned.

The above hissed in response by: Bart Johnson [TypeKey Profile Page] at July 2, 2010 11:31 AM

The following hissed in response by: Chris Balsz

"But we cannot sell such dug-in trench warfare to the American people unless we've kept our hands relatively clean in earlier fights, where less was at stake. Otherwise, we look like the pols who cried wolf."

On the contrary, the Republicans would lose undecideds who notice that the GOP only complain about "principles" based on politics -- didn't you lie down when Kagan got confirmed?

And conservative voters aren't going to elect Republicans who let Democrats have it easy.

The above hissed in response by: Chris Balsz [TypeKey Profile Page] at July 2, 2010 12:11 PM

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