Filibuster Can Counter Kagan Document Delay

CFJ Executive Director Curt Levey on the nomination of Elena Kagan:

“With Judiciary Committee hearings for Supreme Court nominee Elena Kagan set to begin in less than four weeks, Senate Republicans should be giving serious consideration to how they will prevent the ‘train wreck’ that Ranking Member Jeff Sessions says will result if the hearings are held before the committee has ‘a reasonable time to examine’ documents from Kagan’s four years in the Clinton Administration. Given Kagan’s otherwise thin record, even she has acknowledged that the 168,000 pages of documents will provide ‘invaluable insight into how she would approach her job as a member of the Supreme Court’ (Sen. Cornyn commenting on his meeting with Kagan).

“Because the Obama Administration must have reviewed most or all of the 168,000 pages while vetting Kagan twice for the Supreme Court and once for Solicitor General, the documents should be organized and easy to release. Nonetheless, Senate Republicans have to take the Clinton Presidential Library’s director at her word when she says that it will be ‘very difficult’ to produce the material in time for the June 28 hearings, no less in time to allow a thorough review. Since Judiciary Chairman Patrick Leahy has so far refused to consider the possibility of delaying the hearings, a train wreck would seem to be all but inevitable unless GOP senators make it clear that they are willing to use the procedures available to them to ensure that Kagan is not confirmed without a complete release and adequate review of her records.

“While Republicans on the Judiciary Committee could boycott the Kagan hearings in protest, there is little they can do to directly prevent the hearings from going forward on June 28 if Leahy refuses to budge. However, two different Judiciary Committee rules give Republicans the power to block the committee’s vote on Kagan. Rule 3 requires that ‘at least two Members of the minority’ be present for the committee to have ‘a quorum for the purpose of transacting business.’ Rule 4 allows a filibuster of sorts in committee, because at least one minority vote is required to overcome an ‘objection to bring [a] matter to a vote without further debate.’

“Republicans can use either rule in a principled way in this situation. Nomination hearings are followed by one or more rounds of written questions for the nominee before the committee votes. GOP committee members would be well within their rights to insist that the written questions for Kagan can’t be meaningfully completed until the committee has had time to thoroughly review her entire record.

“Of course, Republicans’ use of Rules 3 or 4 assumes that Chairman Leahy will respect his committee’s written rules, which were affirmed at the beginning of this Congress. Insiders say it is unclear whether he would do so. If Leahy chooses to ignore the rules, the Democratic majority will undoubtedly vote Kagan out of committee.

“In that case, Republicans should filibuster Kagan’s nomination when it reaches the floor. Again, it should be done in a principled way – that is, not to prevent a confirmation vote but to delay one only as long as is necessary to allow a complete review of Kagan’s Clinton Administration records. GOP senators who have denounced the filibuster as a tool for obstructing judicial nominees can hold their heads high by using it to ensure a fully-informed debate of Kagan’s nomination. In fact, the Gang of 14’s ‘extraordinary circumstances’ standard for filibustering judicial nominees – the only bipartisan standard we have – presupposes that the nominee’s record has been examined thoroughly enough to know if extraordinary circumstances exist.

“Short of Democrats turning to the ‘nuclear option’ rejected in the Gang of 14 deal, a filibuster on the floor gives the GOP a surefire way to ensure that Elena Kagan is not confirmed to a lifetime Supreme Court appointment before the review of her record is completed. A successful filibuster would require all 41 GOP senators to remain united, unless principled red state Democrats cross the aisle. The good news is that procedural issues of fair play are precisely the ones on which Senate Republicans most often unite.

“Our hope is that neither a filibuster nor the use of Judiciary Committee Rules 3 or 4 will ultimately be necessary. If Republican senators signal early on that they are committed to doing whatever it takes to ensure the thorough vetting of Kagan’s record, Leahy may be convinced to change course. He may realize that the most sensible course of action is to delay the hearings, so that his Judiciary colleagues can ask and Kagan can answer fully-informed questions.

“Short of President Obama asking Sen. Leahy to postpone the hearings – not a bad idea if Obama wants to demonstrate that he is serious about transparency -- convincing the often-defensive Leahy will not be easy. Whatever excuses Leahy cites to justify premature hearings, he should be reminded that there is no downside for the nation if the hearings are delayed. Even if the hearings were put off until August, there would still be plenty of time to confirm Kagan before the start of the next Supreme Court term in October. While it is possible that Leahy is rushing the Kagan nomination in light of speculation that Justice Ginsburg will retire later this summer, even the current June 28 hearing date would not allow a second Supreme Court Justice to be confirmed in time for the new term.”