Jonathan Chait asks: Is Kagan Obama’s Last Justice?
Bear in mind that, before Obama picked her, Kagan was touted as the consensus pick most likely to gain Republican support. (Ginsburg had been head of the ACLU’s Women’s Rights Project — imagine a nominee like that getting through the Senate today, let alone with 96 votes!)
The Republican pretense that judicial nominees, and judicial nominees alone, should be entitled to a majority vote is a hangover from a tactical position the party took during the Bush era. Republicans “didn’t filibuster” Kagan because they didn’t have 40 votes to stop her. After the 2010 elections, their numbers will almost certainly increase to the point where even a moderate like Kagan stands little chance of clearing the 60 vote threshold.
And this has all taken place in a landscape where Obama has merely been replacing liberal justices with other, possibly less liberal, justices. Can you imagine what will happen if one of the five conservatives retires on Obama’s watch? It’s entirely possible that Senate Republicans will simply refuse to confirm any more justices, period.
I agree with Chait but I will take it a step further. The country is very polarized. The Senate no longer engages in policy or ideology but pure tribal warfare. With the 60 vote filibuster and secret holds the Senate has become dysfunctional. The Republicans may retake the White House and the Senate someday and the Democrats will remember the tribal obstructionism of the last two years. One of the first casualties will be the Advice and Consent function of the Senate. If no appointee is going to be confirmed why bother? Could it be that Kagan will be the last lifetime appointment to the Supreme Court? Will all appointments become recess appointments?
Ron can also be found at Newhoggers