Sen. Jeff Sessions took to the floor of the Senate to ask a wonderfully phrased question of Elena Kagan: “What were you thinking when you punished our men and women in uniform because you didn’t like what Congress and your president, President Clinton, did with regard to their policies on  gays in the military?”

This and Kagan’s lack of judicial experience (and only minimal litigation experience) will and should be the focus of the confirmation hearings. Unless those concerns are put to rest, many senators will (and in my view should) vote against her nomination.

The filibuster is a different story, however. That involves a political calculation: will the alternative be any better? I suppose that depends in part on whether the new nomination and confirmation vote happens before or after November, when certainly there will be more Republicans on their way to the Senate. In any event, conservative senators may assess the other possible nominees, who may be more ideologically rigid and more capable, size up Kagan’s novice standing, and review the cases she will be recused from — and conclude she’s the worst alternative, except for all the others. In that event, a no vote and no filibuster would be the most prudent course of action.