NEWS BLOG (WSAU) Yesterday’s opening of the Elena Kagan confirmation hearings were a yawn. Almost all of the day was taken up by opening statements from committee members, and then a prepared statement from the nominee. Not exactly exciting stuff.

Unless she slips up, Kagan will be confirmed. The winner in all of this: the tea party movement, and the candidates that pass tea party muster for the Congressional elections.

Why?

Because for the tea party, the Kagan hearings are politics at its worst. Republicans are playing nice. After getting health care rammed through using reconciliation, there was talk of shutting down the U.S. Senate – nothing would get through. Only five months later, the President nominates a left-of-center Supreme Court nominee, and the mainstream GOP shrugs. “He’s the President,” the conventional-wisdom Elephant says. “There’s no use in fighting a Supreme Court nominee.” That thinking probably makes tea-partiers think they need different kinds of elephants in the senate.

What if the following letter were sent the White House:

“Mr. President: In protest of the abuse of Senate procedures to pass healthcare reform, all 40 GOP Senators will vote against cloture for this or any Supreme Court nominee until you, in writing, reaffirm the uses and misuses of reconciliation.”

The Supreme Court would begin its new term with eight instead of nine justices. That’s happened before. And the court is perfectly capable of functioning with a vacancy on its bench. In fact, there is precedent from just two years ago for letting dozens of federal judge nominees languish without getting up-or-down Senate votes.

There are certainly no requirements to ‘play nice’ when a lifetime appointment to the nation’s highest bench is on the line. 23 years later the term “being Borked” is still part of our political slang after the shameful treatment Robert Bork received before his confirmation hearings. Months later Douglas Ginsberg’s nomination was scuttled because he admitted to smoking dope. Ginsberg’s timing was wrong. We would later have a President who didn’t inhale, and a current White House occupant who has used harder drugs.

This would be true political hardball. It would play well with the conservative base. How it would play with the political soft-middle is a trickier calculation. At least it’s a more interesting conversation that the hearings that got underway yesterday.

Chris Conley
Operations Manager-Midwest Communications, Wausau
6.29.10