BY MICKEY EDWARDS
Reprinted from Politico.com
Given the increased focus on, and increased fealty to, one’s political party as an overriding factor in the decision-making process, it is highly likely that every Democratic member of the Senate will feel a strong sense of obligation to confirm the Supreme Court nominee of a Democratic President.
Add the fact that many members of the Senate, as confused about a Senator’s duties as are most journalists and private citizens, will assume that a President is entitled to have his nominees confirmed absent some overriding disqualification, and the path to Kagan’s confirmation would seem reasonably obstacle-free.
Republicans would love to have a reason to show that Kagan is a tool of some great socialist plot to undermine democratic values, but they’ve played that card to death and might actually long for a breather from that unending war. Which suggests that the Solicitor General might want to go shopping for some classy-looking black robes.
Is this the best way to go about selecting the holder of such immense power? I suggest that it’s not. First, one’s party identity ought to play no role at all in making a decision of this magnitude. Second, Presidents are constitutionally authorized only to put forth a name for the Senate’s consideration: Senators, not Presidents, place people on the Supreme Court, and the degree of responsibility that fact places on each Senator is enormous.
I make these points not to undermine General Kagan — I actually do not know enough about her views to know whether she would be a good Justice or a poor one — but to suggest that there are sufficient important issues at stake that neither she nor any other nominee of any President should get a free pass. This is especially true in the Kagan case because her nomination comes as the Presidential push for extra-constitutional power and authority has reached a critical point.
No matter what good or ill he may have done on other fronts, George W. Bush’s most important — and most damning — legacy is his aggressive push to concentrate power in the hands of a single person in direct defiance of this nation’s constitutional model of government. Many of us warned then that the issue was not about Mr. Bush alone — he would eventually leave office — but about the creation of precedent upon which future Presidents would be tempted to rely. That warning has come true: now Mr. Obama, too, advocates a degree of decisionmaking autonomy the Founders never envisioned and which flips the constitutional system on its head. This is not because he is innovative; it is because he, like all Presidents, makes use of the tools he has been left.
This being the case, it is essential that all Senators — yes, Democrats as well as Republicans — push Ms. Kagan aggressively as to her views on the separation of powers and the reach and limits on presidential authority. It is the single most important issue of our day because while other questions will fade, this will determine the very nature of our form of government for the rest of our national existence.
No Republican should oppose her nomination nor any Democrat support it without having thoroughly tested where this appointment will lead us not on abortion, or offshore drilling, or financial regulation, but on the one issue that trumps each of them: what kind of government we will have
Editor’s Note: Mickey Edwards was a member of Congress from Oklahoma for 16 years and a member of the House Republican leadership. He has taught at Harvard and Princeton and is a vice president of the Aspen Institute. His most recent book is “Reclaiming Conservatism.”