Graham said that while he disagrees with Kagan’s politics, he would vote for her because “the last election had consequences.”

“What’s in Elena Kagan’s heart is that of a good person who adopts a philosophy that I disagree with,” he said.

All other Republicans on the committee had already voiced solid opposition to Kagan, criticizing her over reasons stemming from what they believed was insufficient judicial experience and issues related to her political philosophy.

“There’s plenty of reasons for a conservative to vote no, but there are plenty of reasons for a conservative to vote yes as well,” he said.

Graham said today that his decision was also deeply affected by the support Kagan and filibustered D.C. Court of Appeals nominee miguel Estrada showed each other since Kagan’s nomination. The two were classmates at Harvard Law School. Miguel sent a letter to the committee prior to the start of Kagan’s confirmation hearings that expressed support for the nominee.

“If such a person, who has demonstrated great intellect, high accomplishments and an upright life, is not easily confirmable, I fear we will have reached a point where no capable person will readily accept a nomination for judicial service,” Estrada wrote in the letter.

Graham said Kagan sent him a letter following the hearings that offered similarly glowing remarks about Estrada.

“I personally have no doubt that what Miguel so generously said about me applies just as well to him — that his great intellect, high accomplishments, and upright character would make him an excellent addition to any federal court,” Kagan wrote.

Graham’s vote means the committee will endorse Kagan 13-6. All of the committee’s Democrats are expected to vote for Kagan, while the remaining Republicans will vote against her.

Updated at 1:29 p.m.

President George W. Bush with judicial nominees Priscilla Owen, Janice Rogers Brown and Carolyn Kuhl in 2003 (whitehouse.gov archives)

On Tuesday, a few hours before the Senate would break an eight-month filibuster on the nomination of Judge David Hamilton to the Seventh Circuit Court of Appeals, Sen. Jim DeMint (R-S.C.) reflected on how his party had decided to delay that vote.

“Before [President George W.] Bush left office,” DeMint told TWI, “I went to a reception at the White House for all the nominees, judicial and otherwise, who had not had votes. Many had not even had hearings. I met members of their families, whose lives had been on hold for years. Republicans had made the argument, for years, that we shouldn’t filibuster judicial nominees.” DeMint smiled. “We lost that argument.”

[GOP1]DeMint’s bitter recollection of the judicial wars of the Bush years went some way toward demonstrating just how Hamilton, who came out of the gate with an endorsement from Sen. Richard Lugar (R-Ind.), remained in limbo so long. Nominated on March 17, Hamilton was seen by Democrats as an uncontroversial pick, the sort of nominee whose easy confirmation could spur more quick votes. But Republicans focused on his brief 1979 work for ACORN and a 2005 decision where he ruled against Christian prayer in Indiana’s state legislature as proof he was out of the mainstream.

“The president has shown us, with his nominees and his czars, [that he's] not looking for mainstream America with these nominees,” said DeMint.

When Hamilton’s nomination began to flag, it called into question the strategy of trying to navigate the Senate with low-key nominees. Holds and filibusters have put 38 Obama nominees–some for the bench, most for administration jobs–in limbo. It’s in that context that the White House and Senate Democrats are reported to be looking at a strategy shift–coming up with a massive list of judicial nominees to “flood the pipeline” and complicate Republican filibusters.

It’s a strategy that conservative activists understand very well. In conversations with TWI, some of the key conservatives who helped get Bush’s nominees through the Senate expressed surprise at how often President Obama’s nominees–judicial and otherwise–have been dragged down by Senate holds and filibusters.

“When you have a popular president and 60 seats in the Senate, you should be able to do whatever you want,” said one Bush administration veteran who worked on pushing through judicial nominations, speaking anonymously so as not to offend friends still in Washington. “Insofar as they can’t get what they want, it’s entirely up to them. Why the hell can’t Dawn Johnsen [the nominee to head the Office of Legal Counsel in the United States Department of Justice] get a vote? They’ve decided not to use the political capital to get her confirmed.”

Rachel Brand, a former associate counsel in the Bush White House, said that the Republican administration had more success in filling the bench and getting nominees confirmed because it proposed so many nominees, and because much of their attention was put to the effort. “If they had been pulling out all the stops and working as hard as possible to get as many nominations as fast possible,” said Brand, “they might have done the same as us.”

Many of the conservative activists who are working to bolster–and provide cover for–Republican filibusters of Obama nominees played the opposite role in the Bush years. Curt Levey, who left the Department of Justice in to campaign for the confirmation of Supreme Court nominees John Roberts and Samuel Alito, currently leads the Committee for Justice. There, he’s produced sharp-edged critiques of Obama nominees, some of them finding their way into the arguments Republicans made for filibusters. “On the surface,” wrote Levey in a Tuesday memo to conservatives about David Hamilton, “Judge Hamilton’s ruling has nothing to do with Nidal Hasan’s violent rampage. But neither could have taken place without a religious double standard borne of political correctness.”

If Democrats are having problems responding to this, Levey told TWI, a major reason is Obama’s unwillingness to make public pushes for his own nominees. “Whether it’s the Afghanistan decision or health care, he likes to remain above the fray,” said Levey. “When it’s really a problem for the White House, they’re driving the strategy–they’re trying to communicate it to senators and outside groups. Obama’s not doing either of those things.”

A look at Bush’s approach to stalled nominations reveals a stark difference with Obama’s approach. Starting in 2001 and ending in 2003, Democrats–who controlled first 51, then 49 Senate seats–filibustered Miguel Estrada, a nominee for the United States Court of Appeals for the District of Columbia Circuit. On February 11, the president opened a press conference on welfare by talking about the Estrada nomination; he followed up that day with a statement asking for an “up-or-down vote.” February 22, 2003, he devoted the weekly presidential radio address to the Estrada nomination, and accused Democrats of “partisan politics” that were “unfaithful to the Senate’s own obligations.” On February 26, talk about Estrada dominated Bush’s speech to the Latino Coalition. On March 6, Bush released a statement calling the Democratic filibuster of Estrada “a disgrace.” On March 11 Bush sent a letter, the content of which was released to the public, asking then-Senate leaders Sen. Bill Frist (R-Tenn.) and Sen. Tom Daschle (R-S.D.) to break the filibuster. On March 13, Bush spoke about the filibuster yet again. All of this occurred while the White House was preparing–and making the public case–for the invasion of Iraq on March 20.

Those statements were backed up by a drumbeat of criticism from conservative groups that did not end even after Estrada withdrew his nomination in late 2003. While Estrada never made it to the bench, conservatives spot a difference between Bush’s doggedness and Obama’s benign neglect. Bush pushed hard for the judicial nominees that ended up getting confirmed in the 2005 “Gang of 14″ deal. By way of comparison, there is no record of Obama speaking about the stalled Hamilton nomination after March 17, when the nomination was announced at the White House. One veteran of Bush’s battles suggested that the “souring” of the process–which, he argued, started with Democrats–was largely to blame. In 2003, while working as an aide to Sen. Bill Frist (R-Tenn.), Manny Miranda leaked Democratic memos about the Estrada filibuster to the conservative media. Since then, he’s worked outside the Senate encouraging conservatives to make ideological arguments about the nominees they’re blocking.

“As a working White House,” Miranda told TWI, “it really is stark how few nominations they’ve made. And in the past 10 years, this has all been racheted up.” Despite it all, said Miranda, Republicans in the Bush years were able to push through more nominees with more luck than the Democrats have had so far. But “in the Bush White House, at the end, they were having real trouble finding people to nominate because of this soured process.”

Over the weekend, Miranda criticized fellow conservatives who demanded a filibuster of Hamilton. Instead, he suggested a “real” filibuster that would have forced a debate on Hamilton, a chance for conservatives to explain why, exactly, they considered him so out of bounds. “The issue for conservatives,” he told TWI, “and really for Republican senators, is: Are they going to be consistent? Are they going to be principled? The Senate deserves to have the Senate respond to his nominations.”

Republicans have been content so far to explain the lack of “consistency” the way that DeMint did–Democrats wanted to raise the bar on confirmation votes, and the bar got raised. According to DeMint, Miranda’s argument about the effect of the filibusters–that it leads to delay but not debate–is valid, but hard to overcome. And the key reason is lack of media coverage when Republicans make their stands.

“We’re not being allowed the time,” said DeMint, “because when we allow them to come to the floor, we’re not getting time agreements. We need to expose them, and we’ve put out releases about them. But for the most part there’s not much interest in covering these nominees.”

As I’ve explained before, the government’s decision to defend Yoo against charges he violated Padilla’s civil rights by authorizing abusive interrogation and detention policies was highly controversial, given that the government itself is no longer defending those tactics, and Yoo’s best defense may be that he was just following orders — from other DOJ or White House officials.

So earlier this month, Justice Department lawyers, who were representing Yoo in the pending case despite the serious potential conflicts of interest, told a federal judge in a court filing in San Francisco that “private counsel will be assuming representation of Mr. Yoo” in his appeal. Yoo and his government lawyers in June lost their attempt to have the case dismissed by a district court judge.

The case, brought by Padilla and his mother, claims Yoo violated Padilla’s civil rights by authorizing the government’s terrorist-detention policies and treating Padilla, an American citizen, as an “enemy combatant.”

By pulling out of Yoo’s defense, the Justice Department has now spared itself from having to defend Yoo’s expansive and much-criticized views of executive power, which would have been an embarrassment to the Obama administration.  And as Carrie Johnson of The Washington Post notes, it also frees Yoo to point the finger at other former government officials he might say were giving him orders — notably Vice President Dick Cheney, President George W. Bush, adviser David Addington and then-White House counsel Alberto R. Gonzales. That would be a sticky, if not impossible, argument for government lawyers to have made.

Yoo hasn’t completely lost his government support, though. His choice of private counsel, who’s defended Yoo in such sticky controversies before, is Miguel Estrada, a former Bush nominee for the U.S. Court of Appeals for the D.C. Circuit whose appointment was quashed in 2003 by Senate Democrats — a point harped on by Republicans during the recent confirmation hearing of Supreme Court nominee Sonia Sotomayor. Estrada’s fees will be paid by U.S. taxpayers.

Justice Department spokesperson Tracy Schmaler explained to The Recorder that this “is normal practice when the potential exists for disagreement between the government and the defendant over complex legal questions.”

Estrada “never had this day,” Graham told Sotomayor, adding, “We would not have nominated you. We would have nominated him.”

Still, he acknowledged, in a rare moment of political reality in this morning’s hearing: “Unless you have a complete meltdown you’re going to be confirmed.”

–

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The Estrada experience comes up all of the time, as a justification for filibusters of Obama nominees (it’s rarely reported how extraordinary it is that the smallest Republican conference since the 1970s can keep on blocking the likes of Dawn Johnsen) and as a straight-up whine that George W. Bush, not Barack Obama, should have broken the barrier by appointing a Hispanic justice.

Neomi Rao, a law professor at George Mason University who worked on judicial nominations for Mr. Bush, said Mr. Bush “should have gotten to name the first Hispanic justice on the court.”

“He really wanted to do so,” Professor Rao said.

But she said that he was largely stymied when Democrats blocked Mr. Estrada from going on the appeals court.

Here’s the thing: Bush didn’t have to appoint Estrada to make a historic move. In 2005, when the Supreme Court seats opened up, Bush could have appointed his then-50-year-old Attorney General Alberto Gonzales. But Bush declined to pick Estrada in part (based on reports from the time) because social conservatives did not believe that Gonzales was a solid vote against abortion rights. The buzz phrase, according to Ramesh Ponnuru, was “Gonzales is Spanish for Souter.” The idea that an ultra-forward-looking President Bush and collection of racially conscious Republicans were denied the opportunity to appoint a Hispanic justice when they lost Estrada is simply bunk.