There is another telling example for the Senators to consider. Back in 2001 and 2002, Chairman Leahy and his Democratic colleagues blocked a committee vote on D.C. Circuit Court nominee Miguel Estrada because of the Bush administrations refusal to allow the release of documents from his past service in the solicitor generals office. In September 2002, Judiciary Committee Democrats held a confirmation hearing for Estrada where they blasted the Bush administration for its lack of cooperation. Sen. Charles Schumer (D-N.Y.), who chaired the hearing, said he didnt dispute Estradas legal qualifications but said thats not enough. He wanted the release of documents and explained: I dont know what is in those solicitor general records. They may vindicate you, they may not. They may be somewhere in between, but we really need much more a record especially when confirmation means an appointment onto the second-highest court in the land.
When the Republicans took over the Senate in 2003, they erred by quickly reporting Estrada out of the committee despite the fact that the DOJ documents still had not been released. The Democrats correctly stood their ground and decided to filibuster. The nominee thus never was confirmed. Again, the system worked.
Lifetime positions to the nations highest court should receive an especially thorough and considered review. Once confirmed, excepting rare impeachment proceedings, the justices are no longer answerable to the Senate and the public. For that reason, the president must authorize the release of Kagans records as soon as possible. Chairman Leahy and the committee members must insist on having the full record or delay the process until the Obama administration cooperates. And if that does not happen, the Republicans absolutely should not hesitate to filibuster this nomination. They must know that under different partisan configurations in Washington, Leahy and his Democratic colleagues would do exactly that.
Mark J. Rozell is professor of public policy at George Mason University and the author of the book Executive Privilege. Mitchel A. Sollenberger is assistant professor of political science at University of Michigan-Dearborn and the author of the book The President Shall Nominate.