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Only 41 votes and courage should filibuster Kagan

Rarely seen GOP courage would be required to face down media attacks of bigotry and Democrat majority use of “nuclear option”

President Barack Obama’s nominee to replace Justice John Paul Stevens on the Supreme Court  disqualified herself from taking the Oath required before taking the bench when she testified that the Constitution may be changed by the Court, and not just by the two ways of passing amendments provided for in our governing document.

Of course, by that standard none of the nominees of Democratic presidents since LBJ should have been confirmed, and all should have been impeached for betraying their Oaths, once seated. Republican nominees David Souter and Anthony Kennedy also qualify for impeachment based upon their activist records, as would have Sandra Day O’Connor.

Affirmative action for white liberals only at Harvard

One doesn’t even have to reach the import of Elena Kagan’s transgression of the law at Harvard where, as President of the university, she denied the U.S. military access to students; much less scrutinize her lily white faculty, to determine that she should not be confirmed.

But, of course she will be confirmed, based solely on the super-majority of Democrats in the Senate that prefer laws written by five liberal lawyers since they can’t persuade majorities of the American people to follow their lead, absent a public outcry.

Republicans don’t “bork”, they tell the truth

It is hard to produce a public outcry, or even set up an election issue, in the dry air of Senate Judiciary Hearing Rooms, and the only reason that Robert Bork was “borked” was because the late Ted Kennedy et al lied about him.

Given that Republicans never have stooped to such levels of decrepitude, to their credit, and won’t now, I have argued since Justice Sonia Sotomayor’s confirmation last year, that the best the GOP can do is get as many no votes against these liberal nominees as possible, for the purpose of consistent fealty to the Constitution they also swear an oath to uphold, and consistency in the eyes of tea partiers and others that need to see the stark differences between the parties on the issue of the courts and other issues.

Sessions strategy producing record “no” votes against Democrat nominees

Senate Republicans set a record with their votes against Sotomayor, which they seem poised to break against Kagan. This is great news, that is primarily due to the great work Senator Jeff Sessions (R-AL) has done in persuading former Ranking Member Sen. Orrin Hatch (R-UT) and others to elevate the consequences of senators’ elections and their Advise and Consent role.

Hatch delivers this scathing evaluation of Obama’s nominee this week:

Liberty requires limits on government; it always has, and it always will. That includes limits on judges. Measured against that standard, Elena Kagan’s record shows that her primarily academic and political experience and her activist judicial philosophy make her inappropriate for serving on the Supreme Court.

Hatch and over 75% of Republican senators will vote no, but would they entertain Sessions’ filibuster tempting?:

In an exclusive interview, the ranking Republican on the Senate Judiciary Committee said that a “filibuster is not off the table,” but cautioned that such a procedural tactic would only be employed under “extraordinary circumstances.” Asked if Kagan’s penchant for judicial and political activism hit the benchmark of “extraordinary circumstances,” Sessions wouldn’t commit, but noted how Kagan did not “help herself in her testimony.”

Certainly, a filibuster attempt would help to crystallize issues for tea partiers and others for the fall election. I say “attempt”, because the Democrats can be counted on to invoke a Parliamentarian ruling from the President of the Senate, Vice President of the United States Joe Biden, declaring a filibuster against Senate Rules due to the lack of “extraordinary circumstances.”

The GOP should not fear losing a filibuster battle so long as they have the 41 votes. We are confident that after a filibuster battle, super-majorities of the American people will consider judicial activist re-writings of the Constitution to be extraordinary, but maybe not as extraordinary as Democrat wins in November.

[Cross-posted at 73Wire Law Factory]

Mike DeVine

“One man with courage makes a majority.” – Andrew Jackson

Charlotte ObserverThe Minority Report and Examiner.com archives

www.devinelawvista.com

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