What Kagan can expect

WHAT KAGAN CAN EXPECT…. There’s been some talk about delaying the start of the confirmation hearings in light of Sen. Robert Byrd’s (D-W.Va.) passing*, but the Senate Judiciary Committee may well proceed this morning with Elena Kagan’s Supreme Court nomination.

Senate Republicans have struggled of late to come up with a coherent line of attack — though, as of yesterday, there was still plenty of rhetoric about a possible filibuster — and today, a leading Republican senator trotted out a new argument.

Judiciary Committee member Sen. John Cornyn (R-Texas) wrote in a column Sunday evening that “it is reasonable to worry that [Elana] Kagan is a judicial activist simply because President Obama nominated her.” […]

“The president’s judicial nominees over the past 17 months show an unmistakable determination to create a more activist federal judiciary,” Cornyn writes of Obama’s picks for lower federal courts.

I kind of like this, in large part because the argument reflects a certain degree of honesty. Why don’t Republicans like Kagan for the high court? Because President Obama nominated her. Cornyn’s concession makes this plain — if the president chose her, she necessarily has to be considered suspect.

This kind of partisanship is the opposite of substantive criticism, but I do enjoy the argument’s circular quality — Republicans are inclined to oppose Obama’s nominees because they’re Obama’s nominees.

Likewise, Sen. John McCain (R-Ariz.) argued on “Meet the Press” yesterday that he’s “disturbed” by Kagan’s “obvious steadfast and even zealous opposition to military recruiters.” Host David Gregory didn’t inquire further — except to ask, “Is that disqualifying?” — and that’s a shame. In reality, as has been discussed repeatedly and even acknowledged by other Republicans, McCain’s argument is contradicted by reality.

It’s going to be a long week.

* Update: It looks like the hearings will get underway today, as scheduled.

Washington Monthly - Donate today and your gift will be doubled!

Support Nonprofit Journalism

If you enjoyed this article, consider making a donation to help us produce more like it. The Washington Monthly was founded in 1969 to tell the stories of how government really works—and how to make it work better. Fifty years later, the need for incisive analysis and new, progressive policy ideas is clearer than ever. As a nonprofit, we rely on support from readers like you.

Yes, I’ll make a donation

Steve Benen

Steve Benen is a producer at MSNBC's The Rachel Maddow Show. He was the principal contributor to the Washington Monthly's Political Animal blog from August 2008 until January 2012.