dissects the way the Kagan nomination is being framed by National Journal. National Journal asked whether "it be politically smart for Republicans to try to block the confirmation of Elena Kagan?” Whelan is less than impressed with the question.
I’m not quite sure what the question is supposed to mean, but given the fact that it’s a safe bet that the 59 Senate Democrats will give Kagan the majority support that she needs to be confirmed, I’d interpret the question as asking whether Republicans should try to filibuster the nomination (since that would offer the only prospect of “block[ing] the confirmation”). But no one, so far as I can tell, is seriously contemplating a filibuster effort. And, as I’ve said repeatedly, I oppose the filibuster of judicial nominees. So I would have answered “no” to the question. Is it, then, really meaningful that 76% of the “GOP insiders” who participated in the poll answered “no”?
A better question would have been, “Would it be politically smart for Republicans to use the confirmation process for Elena Kagan to highlight differences between the parties on the proper role of the Supreme Court? I’d submit that the Sotomayor confirmation process demonstrates that the right answer to that question is a resounding “yes.”
I would also extend the logic in the title to GOP senators when it comes time to question Kagan. "Clauses, not cases" should be the GOP's theme.