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The Judiciary Committee voted to approve Kagan 13:6. The only Republican to vote for Kagan was Lindsey Graham (R-SC). The Democrats unanimously voted for her, but former Republican (and also a former, former Democrat) Arlen Spector (also a former Chair of the Senate Judiciary Committee) said he had grave concerns because she had criticised the vapidness of the confirmation process and yet displayed the exact same vapidness during her own confirmation process.

To be fair, the process post-Bork (and really, post-Roe v Wade) has become such that Kagan had no choice but to do so. I think Spector has a good head on his shoulders, and some of his thoughts on how to change the confirmation process are worth considering.

Even more interesting are Lindsey Graham’s comments – noting that the only criterion he applied was whether Kagan was qualified and of good character. Most politicians reject the litmus test (‘will you overturn Roe v Wade, will you allow gay marriage etc) but Graham went one step further and rejected any litmus test based on judicial philosophy. Very interesting.

I don’t pretend to have any solutions to this intractable problem. If the left or the right appoints a candidate who will be a judicial activist (overturning precedents simply because they don’t match their political philosophies) then why shouldn’t the Senate vote to overturn it?Senator Graham is right when he says that the Constitution vests the selection of the nominee to the President, but the Constitution also gives the Senate a broad veto power, just as the President may veto bills from the Senate for whatever reason he chooses. There should be restraint in vetoing judicial nominees, but I think enunciating exactly what that means is a task of immeasurable difficulty.


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