Ridiculousness aside, the Party of "No" is trying to figure out how to at least make a case for credibly continuing their obstruction, efforts that will undoubtedly bring more heat than light to questions about Kagan's judicial philosophy.
To set the frame, ranking Judiciary member Jefferson Beauregard Sessions, III told FOXNews that "a filibuster of Supreme Court nominee Elena Kagan is still possible," and that "I wouldn’t take it off the table."
WASHINGTON — After weeks of lying low, Republicans on Wednesday began stepping up their attacks on Elena Kagan, and are laying the groundwork to oppose her confirmation to the Supreme Court by casting her as a partisan Democrat who has spent more time practicing politics than law.
When President Obama nominated Ms. Kagan, his solicitor general, to replace Associate Justice John Paul Stevens, Republicans quickly complained that she lacked judicial experience. Now, in a fresh twist, they are characterizing her as a “political lawyer” or “political operative” — terms designed to undercut the Democratic argument that Ms. Kagan is hardly the first Supreme Court nominee who has never been a judge.
Senator Mitch McConnell, the Republican leader, made the “political operative” argument Wednesday in a speech on the Senate floor. He cited memorandums and notes Ms. Kagan wrote about campaign finance during the Clinton administration, including one in which she seemed to gleefully scribble in the margins that a ban on soft money “affects Repubs, not Dems!”
“In other words,” Mr. McConnell said, “these memos and notes reveal a woman whose approach to the law was as a political advocate — the very opposite of what the American people expect in a judge.”
Mr. McConnell’s words are being echoed by other Republicans. In an interview with Fox News on Wednesday, the top Republican on the Senate Judiciary Committee, Jeff Sessions of Alabama, said that Ms. Kagan “has less legal experience than any judge in the last 50 years” and that “most of her work has been political work.”
In addition to the "political hack" and lack of experience narratives, they'll focus on her decision as Harvard dean to keep military recruiters out of the law school's career services office. The decision upheld Harvard's policy of barring employers who discriminated in hiring, in this case the prohibition on allowing openly gay people to serve. Military recruiters continued to have access to military and veterans groups on campus. An "independent" non-profit, Military Families United, has written to the committee demanding that they ask questions about this, giving Republicans all the excuse they need to focus on it.
Sessions hasn't said yet who he plans to call to testify against Kagan at next week's hearings, but some people close to the process say it's likely he will include a military figure who felt aggrieved by her actions at Harvard.
Sen. Orrin Hatch, R-Utah, another senior Judiciary member, said the episode is evidence that Kagan puts politics and her own personal views before the law. Thousands of pages of memos and notes from Kagan's years as a White House counsel and domestic policy aide to President Bill Clinton are fueling his argument. They're littered with advice from Kagan that's primarily driven by political considerations and policy concerns.
Hatch said it's clear from her speeches and writings that Kagan espouses "an activist philosophy" of judging, citing her past praise for her former boss Justice Thurgood Marshall and former Israeli Supreme Court President Aharon Barak.
Hopefully, Sen. Franken will weigh in on judicial activism, since he has a more intellectually vigorous and honest assessment of the term. And of Kagan. It's entirely too likely that the bulk of the hearings will be devoted to the bullshit the Republicans come up with, and many of the questions serious court watchers want to have explored won't be.