GOP Senate Candidate Mark Kirk Says He Would Vote for Kagan, Were He Currently a US Senator

from the Kirk for Senate Campaign

With regard to Solicitor General Kagan, I would support her nomination. Ms. Kagan appears to be modest and thoughtful not because she expected this nomination but because she is modest and thoughtful. Under the Constitution, only the President can make this nomination and Solicitor General Kagan is one of the more careful nominees he could have picked.

Alexander Hamilton wrote in Federalist No. 76: “To what purpose then require the cooperation of the Senate? I answer that the necessity of their concurrence would have a powerful, though in general a silent operation. It would be an excellent check upon a spirit of favoritism in the president, would tend generally to prevent the appointment of unfit characters from family connection, from personal attachment, and from a view to popularity.”

Under this tradition, the Senate tempered any partisan review of the president’s choice. Recently, justices Ginsberg (96-3), Kennedy (97-0), Stevens (98-0), Scalia (98-0), Bryer (87-9) and Roberts (78-22) were confirmed by bipartisan majorities that applied the Federalist standard. I note Solicitor General Kagan earned support from the American Bar Association and conservative judges Estrada and McConnell.

Ms. Kagan's decision to ban military recruiters from Harvard troubled me. During her hearings, she committed to follow the unanimous Supreme Court ruling striking down that ban. I also note she considered the death penalty settled law and successfully won her case before the Supreme Court affirming the government's position against terrorists.



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