How the GOP Lost the Kagan Fight

If the GOP had held just two more Senate seats in the election debacles of '06 and '08, Obamacare would have failed and Kagan would have been rejected.

The debacle election years 2006 and 2008 have borne bitter fruit for Republicans.  If, over that cycle, they had held just two more seats Obamacare likely would have failed.  Now we see another consequence of the overwhelming loss of the Senate.  Elena Kagan, one of the most unpopular nominees of modern times is going to be voted through the Senate.  A nominee with nothing but contempt for the Constitution as ratified, but great love of the one bruited about at any given time in law school faculty lounges, is going to be ensconced on the bench.

The results of a recent Gallup poll are extraordinary.  Only Harriet Miers and Robert Bork had fewer people behind their approval.  Those who were definitely against her were virtually as high as for Bork.  The reason this is extraordinary is that her confirmation hearings were run by the Democrats.  The entire process was in their control.  The Republicans were as polite as could be and there was no ideological galvanization to destroy her as there was for Bork.  But what is known is enough for a large chunk of America to be against her and for her to have less than a majority behind her.

Her shameful ideologically driven policy of excluding the military from Harvard -- and in opposition to the law the administration she worked for signed into law -- is now well-known.  Her rewriting medical statements on abortion and then palming them off as “unbiased medical opinion” is also recognized.  She has never been a judge, and compared to any legal scholar of her generation, has written practically nothing.  She is being put forward by President Obama primarily to approve of Obamacare, when any fair analysis would insist she recuse herself.

If Elena Kagan had been appointed when a Republican controlled the Judiciary committee gavel there is a very good chance that President Obama would be facing an embarrassing defeat, rather than a win.  The collapse of Republican fortunes for two cycles continues to cause permanent damage to American conservatism.