Supreme Court nominee Elena Kagan is being rammed through Senate confirmation before important questions about her background have been answered. Opponents should use every parliamentary tool available to delay a final confirmation vote until after the August recess. One available tool is the old-fashioned, one-man filibuster that lasts as long as the filibustering senator can keep his feet.
Failure to push parliamentary tactics to the outer limit short of permanent filibuster exposes opposition fecklessness. The public is in the mood for a stringent defense of the Constitution and debate thereon, and the Senate has failed to deliver.
Constituents of one wobbly senator, Republican Lindsey Graham of South Carolina, are in open revolt. Three county Republican committees in the Palmetto State have overwhelmingly passed resolutions censuring Mr. Graham. In response, the senator felt impelled to issue a letter to his constituents trying to justify his vote. Mr. Graham cited, “a standard that has stood the test of time: Is the person qualified? Are they [sic] a person of good character? Are they someone who understands the difference between being a judge and a politician? And, quite frankly, I think she passes those tests.”
This excuse is weak. The questions still outstanding about Ms. Kagan are precisely about character and her politicization of justice. Three major questions about Ms. Kagan’s ethics - all involving political shenanigans - scream for more investigation, and all are in the context of Ms. Kagan working to keep legal the monstrous practice of partial-birth abortion that 75 percent of Americans oppose. Also disqualifying is Ms. Kagan’s direct flouting of the law in order to keep military recruiters off the Harvard Law campus. Nobody who flouts the law should be one of the law’s nine ultimate judges.
Finally, renewed questions have arisen about Ms. Kagan’s outlandish respect for Islamic Shariah law and for a “transnationalist” approach that would subject American courts to foreign standards - all while directly opposing efforts by American survivors of the Sept. 11 attacks to hold foreign governments liable for those terrorist acts. Bizarrely, as dean of Harvard Law, Ms. Kagan accepted donations from Saudi supporters of Shariah law and honored advocates of Shariah. Yet she gave short shrift to Sept. 11 victims’ families.
On many issues, Ms. Kagan is on the liberal fringe. She is hostile to gun rights. She believes political pamphlets can be banned by Congress. She believes speech rights can be “dol[ed] out” by government. She has hinted that Mississippi should be forced to uphold homosexual “marriages” ordered by judges in, say, liberal California.
The public has a right to a full review of these issues. The public wants the chance to weigh in. The new Supreme Court term doesn’t start until October, and delay doesn’t hurt anything. A one-man filibuster is so rare, and would attract such attention, that it in combination with other legitimate stalling tactics could arouse enough public pressure to hold off a final vote until after congressional recess. This is a battle that needs to be waged.