Specter's Compelling Argument For Voting No On Kagan For SG

By Big Tent Democrat, Section Supreme Court
Posted on Mon May 10, 2010 at 11:59:55 AM EST
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Previously I criticized Joe Sestak for his eagerness to rubberstamp Elena Kagan's nomination to the SCOTUS. Sestak criticized Arlen Specter's no vote on Kagan for Solicitor General. Booman provides Specter's very compelling defense of his No vote:

I don't know very much more about [Kagan] now than I did when we started the process. From the many questions that I asked her on cases, I have picked out a few to illustrate the problem I am having with figuring out where she stands and the problem I am having with her confirmation. [. . . W]e do not know very much about her views [. . .] I had calls from people in high positions--I do not want to identify them--saying: Well, don't ask those kinds of questions. Somebody in the executive branch. Well, I am not prepared to relinquish the institutional prerogatives of the Senate to ask questions. The executive branch nominees want confirmation. Well, Senators want information to base their opinions on.

[. . .] In essence, it is difficult to cast a negative vote on someone with the qualifications and background of Dean Kagan, but we have a major problem of institutional standing to find out from a nominee what the nominee thinks on important questions. [. . .] I think we have to pay a little more attention, and I have gone to some length to try to find out more about Dean Kagan. In the absence of being able to do so and to have a judgment on her qualifications, I am constrained to vote no.

(Emphasis supplied.) In my view, this is precisely the attitude that the Senate should take towards all judicial nominees. On this issue, Joe Sestak could not be more wrong and Arlen Specter could not be more correct.

Speaking for me only

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Specter's Compelling Argument For Voting No On Kagan For SG | 24 comments (24 topical)

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This would be a lot more (5.00 / 1) (#1)
by Socraticsilence on Mon May 10, 2010 at 12:22:22 PM EST

convincing if he applied this standard evenly.

Who? (none / 0) (#2)
by Big Tent Democrat on Mon May 10, 2010 at 12:24:07 PM EST

Sestak or Specter?

Do you plan on asking if Sestak would have voted for Alito and Roberts and why or why not?

BTW, I have been completely consistent on this for many many years.


No I understand you're postion (none / 0) (#6)
by Socraticsilence on Mon May 10, 2010 at 12:38:14 PM EST

and I agree with it, Specter on the other hand has rubber stamped adminstration appointees of all stripes at times, so I have hard time seeing his argument against SG confirmation as more than political posturing.


: That is less important to me (5.00 / 1) (#11)
by Big Tent Democrat on Mon May 10, 2010 at 12:41:54 PM EST

I am activisting for MY VIEWS.
In this case, Specter's views help me and Sestak;s views hurt me.
I'll criticize Sestak and applaud Specter here because that comports with my views on the issue.

You have been completely consistent on this (none / 0) (#7)
by MO Blue on Mon May 10, 2010 at 12:38:20 PM EST

Specter not so much. He was a Republican when he voted for Roberts and Alito. He was, also, still a Republican when he voted against Kagan in March 2009. It will be interesting to see how he votes this time around if he wins the primary against Sestak.

During the remainder of the primary, there is no doubt that Sestak will state that he would have most certainly voted against Roberts and Alito. Not so sure what he would say if asked the same question during a general election.


So what is Sestak saying now? (none / 0) (#14)
by Big Tent Democrat on Mon May 10, 2010 at 12:43:58 PM EST

He is saying "rubberstamp."

So why not rubberstamp Roberts?

Sestak's position is incoherent and I will attack it continuously.


: fortunately for Sestak (none / 0) (#22)
by Capt Howdy on Mon May 10, 2010 at 01:14:56 PM EST

pols are rarely expected to be consistent or coherent.

True. I seem to recall (none / 0) (#5)
by brodie on Mon May 10, 2010 at 12:37:56 PM EST

that Specter didn't have a problem when Clarence Thomas failed to be fully forthcoming about his legal positions when he was before the Judiciary Comm'ee and the senator ended up voting to confirm. Nor were Roberts and Alito very frank in discussing these things, though again, iirc, Specter voted to pass them through despite a great deal of fudging in their testimony. The opposite situation prevailed however with the very forthcoming and precise Bork, whom Specter nixed.

I suspect that Arlen has a pre-conceived idea of how he's going to vote, depending on the political winds of course, then later discovers the hook he'll use to squelch or confirm the nominee.


: Ah, yes. Never forget. (5.00 / 1) (#17)
by Cream City on Mon May 10, 2010 at 12:47:54 PM EST

So I must say that I was worried when I saw that Kagan had worked for Biden on the Judiciary Committee. Then I looked up just when that was. Whew, that was in 1993.
Still, after the debacle that Biden perpetrated in 1991 . . . well, I will hope Kagan determined that it was necessary to work from the inside in the event that there was need to prevent a rerun.

Yes, what is Specter saying now? (none / 0) (#16)
by ruffian on Mon May 10, 2010 at 12:47:21 PM EST

I agree that the Senators should ask and get answers to whatever they want in order to perform due diligence and make up their minds. Specter is pretty weaselly about when he applies that (or any) standard. As are most of the Senators. Sestak will fit right in.


This is a real problem... (5.00 / 1) (#20)
by nrglaw on Mon May 10, 2010 at 12:52:57 PM EST

I am uncomfortable with this nominee (and disappointed that Wood did not get the nomination) because she is not very easy to assess in terms of her stated positions. I know she argued in favor of indefinite detention at her SG confirmation hearing. That doesn't give me much comfort.

Pols Are Pols? (none / 0) (#3)
by squeaky on Mon May 10, 2010 at 12:35:48 PM EST

He made no such grand statements when Roberts dodged questions, but then he was a Republican, just as he was when voted no on Kagan.

SPECTER: Well, I'll accept that as an indication of your view not to have a, quote, "crabbed interpretation," in applying the broad principles.
Let me refer you to a statement by Chief Justice Rehnquist in dissent in the Casey case which surprises me. And I ask you whether you agree with this.
He said, quote, "A woman's interest in having an abortion is a form of liberty protected by the due process clause."
Do you agree with that?
ROBERTS: Well, that does get into an area where cases are coming up. The chief, in that position, was referencing, of course, the holding in Roe v. Wade and that was what the issue was in Casey.
But I don't think I should opine on the correctness or incorrectness of particular views in areas that are likely to come before the court.
SPECTER: I'm going to move now to the confrontation between Congress and the court.....
ROBERTS: Well, Mr. Chairman, I don't want to comment on the correctness or incorrectness of a particular decision. What I will say...
SPECTER: Well, Judge Roberts, let me interrupt you there for a minute. Why not? The case is over. This isn't a case which is likely to come before you again. These are the specific facts based on the rape of the woman -- alleged rape -- by the three VMI students.
I liked your answers yesterday. You were willing to answer more questions about cases on the differentiation that they are not likely to come before the court. This is not likely to come before the court again.
Isn't this record sufficient in Morrison to...
ROBERTS: Well, Mr. Chairman...
SPECTER: ... uphold the act?
ROBERTS: Mr. Chairman, I must respectfully disagree. I have been willing to comment on cases that I think are not likely to come before the court again. I think particular question you ask about the adequacy of findings and make a determination of the impact on interstate commerce is likely to come before the court again.

WaPo

Spector regretted his vote for Roberts when he decided run as a Democrat.

He helped John Roberts get to the Supreme Court, but now says he regrets taking Roberts at his word during confirmation hearings.

Sure (5.00 / 1) (#10)
by Big Tent Democrat on Mon May 10, 2010 at 12:40:29 PM EST

But he asked the questions, now he regrets the vote.

Pols are pols.

But that is hardly my point.

I want pols are pols to me 'vote No if you do not get answers.'

Activists are activists . . .


Yeah (none / 0) (#18)
by squeaky on Mon May 10, 2010 at 12:48:41 PM EST

I understand your position and agree whole heartedly. It just seems odd to me that you would use Specter as an example of a Senator who has principals. He got nothing from Roberts yet voted Yea. All of a sudden Kagan, who acts no different, gets a no vote and Specter has the gaul to say that it was because Kagan would not answer questions?

Not a very compelling example of someone with principals, imo.


I am using the principle (5.00 / 1) (#19)
by Big Tent Democrat on Mon May 10, 2010 at 12:52:25 PM EST

not the pol.

Or rather I am using the pol to forward the principle.

Which is what politics is all about.


: I Get It (none / 0) (#21)
by squeaky on Mon May 10, 2010 at 12:54:20 PM EST

Works for people who have no memory, which are most US voters.

And (none / 0) (#4)
by CoralGables on Mon May 10, 2010 at 12:36:22 PM EST

now Specter will attempt to thread a needle with his explanation as to why he will ultimately vote "for" confirmation of Kagan, which is what I fully expect him to do. His previous explanation has left him the opening to vote differently this time, thus negating the Sestak attack.

Why not wait for her testimony? (none / 0) (#8)
by Big Tent Democrat on Mon May 10, 2010 at 12:38:58 PM EST

Maybe she will be somewhat forthcoming.


I would agree but (none / 0) (#13)
by CoralGables on Mon May 10, 2010 at 12:43:53 PM EST

isn't the PA primary a week from tomorrow? I'm not sure he has the luxury of waiting at this time.


: OF course not (none / 0) (#15)
by Big Tent Democrat on Mon May 10, 2010 at 12:45:04 PM EST

But Specter can lay out his position in a very effective way by saying he will wait for answers on PROGRESSIVE questions, unlike Rubberstamp Sestak.
I think this will work politically.

I'm actually hoping someone (none / 0) (#9)
by Socraticsilence on Mon May 10, 2010 at 12:40:08 PM EST

does what The Hill has hinted at- attack Kagan for clerking for and admiring Thurgood Marshall, its almost impossible to think of a more tone deaf tactic.

: Not gonna happen (none / 0) (#12)
by Big Tent Democrat on Mon May 10, 2010 at 12:42:50 PM EST

I think answers will be demanded and if it is the GOP that demands them, I will be applauding the GOP.

Specter's official statement: (none / 0) (#23)
by Anne on Mon May 10, 2010 at 02:05:47 PM EST

"There is no doubt that Elena Kagan has exemplary academic and professional credentials. And she has been a pioneer for women, serving as the country's first female Solicitor General and as the first woman to be Dean of Harvard Law School. I applaud the President for nominating someone who has a varied and diverse background outside the circuit court of appeals.
"I voted against her for Solicitor General because she wouldn't answer basic questions about her standards for handling that job. It is a distinctly different position than that of a Supreme Court Justice.
"I have an open mind about her nomination and hope she will address important questions related to her position on matters such as executive power, warrantless wiretapping, a woman's right to choose, voting rights and congressional power."

I think there are enough weasel words in there to allow Specter to justify whatever it is he decides to do, at least until he can get over the primary hump.

He's so, so predictable, isn't he?

: I disagree (none / 0) (#24)
by Big Tent Democrat on Mon May 10, 2010 at 02:11:22 PM EST

I find the statement quite good.