The device to force debate would be using a filibuster to push Kagan's vote to early September, with prime time debate aired during the August recess. To those like me annoyed at Kagan's evident dishonesty & expedient repudiation of her former position on post-Bork nominee hearings as being "vapid" exercises in witness evasion it is an appealing thought. But remembering the ancient Chinese admonition of being careful what one wishes for, perhaps it is best to pass.
First, the author's idea that an August debate--with America at the beach--will be widely watched is unrealistic. Second, Democrats excel at payback, even in forms unjust and extreme. They will happily filibuster a future GOP nominee and cite a Kagan filibuster as precedent, even if their reasons are different & their intent is to block a nominee entirely rather than merely force debate. The nuances of proper versus abusive filibuster are too inside baseball for most voters to follow. Democrats need simply demand infinite disclosure, beyond what is fair & relevant, and use a nominee's resistance as an excuse for delaying a vote.
Further, as awful as Kagan will be, if she is somehow stopped, does anyone think President Obama will appoint a John Roberts? He will find someone as bad or worse. And most dangerous of all, is that the filibuster weapon must not be prematurely fired. Wait until one of the four conservatives steps down, or swinger Anthony Kennedy. If a Kagan is nominated then, THAT is when you filibuster.
Bottom Line. Timing is often everything in life. Elena Kagan will be a reliable hard lefty & a dismal presence on the Supreme Court. For that reason she will be less influential than John Paul Stevens, the man she replaces, in swaying other votes on the Court.
Letter from the Capitol, LFTC, Supreme Court, Conservative Politics
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