Elena Kagan nominated for Supreme Court

[bascule]

Obama has nominated Elena Kagan, the first female Solicitor General, as a Supreme Court justice.

 

http://news.bbc.co.uk/2/hi/americas/8669268.stm

 

Kagan has generally been received well among Democrats. Republicans apparently have "questions" for her. I've seen many complaints among non-Democrat liberals that she's too moderate and won't provide the balance needed to offset the conservative influence Bush added to the court with Roberts and Alito. I generally agree with this position and would like to see a more liberal nominee, however I don't directly oppose Kagan, other than I think it's a bit creepy how much she looks like Kevin James.

[SH3RL0CK]

I'm a bit concerned because I think she lacks experience...it seems to me to be like the Harriet Miers nomination by GW Bush. Note in particular from the article

she has never been a judge. Indeed, before becoming solicitor general in March 2009, Ms Kagan had never argued a case in court.

I don't mean to say that her other experience counts for nothing, but clearly this should be at least a concern.

 

I would think there are candidates with more relevant experience...and I would expect the Senators to question this aspect. However, given a near super-majority in the Senate and what seems to me to be a favorable press, I don't doubt she will be confirmed.

 

I'll wait until the confirmation hearings before forming an opinion on her however.

[iNow]

Anyone looking for a good review of her background should read this:

 

 

http://www.scotusblog.com/2010/05/9750-words-on-elena-kagan/

Below, we discuss the most significant aspects of Elena Kagan’s experience and writings as they relate to the Supreme Court. We also consider various criticisms that have been raised against Kagan, including with respect to her views on the military (supposedly too liberal) and executive power (supposedly too conservative), as well as the prospect that she will be required to recuse from a substantial number of cases early in her tenure on the Court. We separately discuss the specific votes she likely will receive for and against her confirmation. Each separate section below is identified by its author(s).

 

Our goal is to provide information for the public to make its own judgments, and we also offer opinions on certain claims made about her.

[jackson33]

I also am going to see what the hearings have to offer, but am concerned about the experience. A couple thing to keep in mind today, not that it means anything;

 

She feels there is no constitutional basis, for allowing 'same sex marriage'.

 

She is Jewish and would be making the Court 6 Catholic, 3 Jewish...

 

To my knowledge has never been married.

 

She would be the 3rd setting, from NYC, the 5th from NY or NJ and the 5th that graduated from Harvard. Breyer from California and Thomas from Georgia. She would drop the average age of the Justices from 67 to 64.

 

Since obviously this does not look much like America, emphasis should be on whether the candidate will rule according to the Constitution or to their person background and experiences.

[Pangloss]

She's been a somewhat controversial figure since her appearance on the short list. She's an outspoken advocate for gay rights, which some gay advocates and right-wingers have both taken to mean that she's also a lesbian, which she denies. One commentator suggested that some of these people (both gay rights advocates and right-wingers) need to stop assuming that short hair and a pant-suit automatically means "lesbian" (shades of Janet Reno and Janet Napolitano, who've been similarly accused in the past). The right-wing interest is not surprising, but the gay community interest seems counter-productive (though not really inconsistent -- the politics of gay activism often seems contrarian in nature).

 

There's also a thing out there about how some liberals think she's too conservative. Newsweek seems to concur:

 

They are especially unhappy with her failure to compile a record of aggressively advocating liberal causes over the years, with her hiring at Harvard of two or three conservative, white male professors—and too few women and minorities—and with her arguments as solicitor general in support of Obama terrorism policies similar to those of the Bush administration.

 

http://www.newsweek.com/id/237701

[bascule]

There's also a thing out there about how some liberals think she's too conservative.

 

I think she's insufficiently liberal to balance out SCOTUS's current conservative bias.

[Pangloss]

Even if she supports Obama's Bush-like anti-terrorism policies?

[bascule]

Even if she supports Obama's Bush-like anti-terrorism policies?

 

I'm not sure how supporting Bush-like anti-terrorism policies would help make her more liberal, and as far as I'm concerned that's a totalitarian/authoritarian issue, not a liberal/conservative one.

[Pangloss]

Doesn't matter if the base doesn't find her acceptable. I don't think that's really going to be a problem here, but I also don't think the left will have much luck scaring up fear about right-wing opposition on this either. She's clearly been chosen because she is the least objectionable to both Republicans and Democrats.

 

Nobody seems to think that Elena Kagan, Obama's nominee to replace John Paul Stevens on the Supreme Court, will have much trouble getting confirmed. She was the strong favourite to get the nomination precisely because she is so confirmable. Obama has enough to contend with at the moment without having to fight for a controversial nominee. A moderate liberal is indicated, to replace Stevens, who was a moderate liberal. Ms Kagan seems to fit the bill.

 

http://www.theatlantic.com/politics/archive/2010/05/the-kagan-nomination/56510/

[bascule]

Doesn't matter if the base doesn't find her acceptable. I don't think that's really going to be a problem here, but I also don't think the left will have much luck scaring up fear about right-wing opposition on this either. She's clearly been chosen because she is the least objectionable to both Republicans and Democrats.

 

Yes, she's a moderate, much like Obama. Unfortunately, we had to deal with the Republicans shoving Alito and Roberts down the country's collective throats. The Democratic response is: let's nominate an uncontroversial moderate! Ok, except that doesn't restore the balance of the supreme court.

 

I'd like a balanced Supreme Court, but that's not what Bush and ilk (i.e. Karl Rove) left us with. Bipartisanship doesn't really work when one side's all "we don't want to stir the pot" and the other is all "screw you all!"

[Pangloss]

Especially when you're struggling to find consensus in your own party even with 60 votes in the Senate, eh?

 

Of course, when you speak of balancing those evil conservatives you're conveniently forgetting that Roberts and Alito were not nearly as far to the right as what you could have had -- if Bush hadn't had to get them past at least 5 Democrats in Congress. Can you say "Harriet Miers"? I knew you could.

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Merged post follows:

Consecutive posts merged

Politico has more on Kagan's moderate past today, based on some digging into the Clinton Presidential Library. On numerous occasions she recommended policies of compromise and middle ground in order to avoid ideological fights.

 

A 1998 memo shows that Kagan was among advisers encouraging Clinton to deny Medicare funding for abortions in cases where a woman's health was at risk – in part to avoid a messy battle with Republicans.

 

Another memo from May 1997 suggests Kagan’s political pragmatism – showing that she encouraged Clinton to endorse an abortion-related legislative proposal by Sen. Tom Daschle (D-S.D.) even though it was opposed by abortion rights groups and viewed as unconstitutional by the Justice Department.

...

Women’s groups complained that Daschle’s requirement for creating that exception went too far. But in a memo co-written with Reed, Kagan painted the endorsement of Daschle’s language not necessarily as good policy but as the best way of heading off the chances that an even stricter anti-abortion measure would clear Congress with a veto-proof majority.

 

In another instance, a memo shows Kagan opposed efforts by labor unions and Sen. Ted Kennedy (D-Mass.) to get Clinton to insist that he would only sign a bill Republicans were advancing to ease overtime pay rules if Congress used the same measure to expand the Family and Medical Leave Act.

 

http://www.politico.com/news/stories/0510/37119.html

Edited May 12, 2010 by Pangloss
Consecutive posts merged.

[ecoli]

Does courtroom experience matter for judgeship?

 

If not, I gotta support a fellow New York Jew

[SH3RL0CK]

Does courtroom experience matter for judgeship?

 

If not, I gotta support a fellow New York Jew

 

Why would no experience as a judge be a concern regarding a candidate for the very top judge in the nation? Indeed, having a well over a year experience in arguing court cases should have prepared Ms. Kagan for any conceivable issue that might be presented before the supreme court [/sarcasm] Without question experience is important, and there are many others who are more qualified candidates.

 

That said, I do very much like her academic experience. And the President is Constitutionally permitted to appoint anyone he pleases. As per my previous post, I am optimistically looking forward to the confirmation hearings as I'd like to know more about her. With the virtual supermajority of democrats in the Senate, I'd say she is a shoo-in unless the media decides to 'bork' her (which they clearly aren't going to do).

[ecoli]

Is this a larger trend of Obama favoring academic experts over practical experience? Or am I making that up.

[Pangloss]

Is this a larger trend of Obama favoring academic experts over practical experience?

I don't know what the trend may be regarding his federal judicial appointments, but of course this is only his second SCOTUS appointment and the first one was a very experienced federal appeals court judge.

 

A lot of hay has been made throughout the political theater lately about the fact that all of the SCOTUS appointments in the last 40 years or so have been judges, but that is not a constitutionally-defined prerequisite for the position. Various historians like to point out examples of justices they consider "successful" examples of non-judicial appointments, and it's something of a meme particularly for the left, which feels somewhat under assault by the judiciary at the moment following several decades of mainly-Republican appointments. The right, tending to favor "strict constructionism", seems to prefer experienced judges, whom they perceive to tend to strictly interpret the law, and will thus (presumably) serve as a stopgap to progressivism. But they're definitely not tapping into a universal truth, at least as far as the prerequisite is concerned -- the last non-judicial-background member was (if I'm not mistaken) William Rehnquist, who was rather decidedly conservative.

 

It's 98% posturing, really -- both sides like to hide their ideological preferences behind faux constitutional grounds and fictional philosophical constructions they claim to be objective. But then most of what happens with a SCOTUS nomination is posturing, not just because of the politics involved, but simply because you can't predict an appointee's behavior once they're on the bench.

 

All of which make SCOTUS nominations a major highlight of any political hobbyist's calendar.

Edited May 12, 2010 by Pangloss

[DJBruce]

Elena Kagan was officially confirmed as the 112the Supreme Court Justice today by a 63-37 vote.

 

Fox News

The final tally was 63-37, with five Republicans voting with all but one Democrat, Ben Nelson of Nebraska, and the two independent senators in Kagan's favor.

 

Justice Kagan's confirmation really is not that surprising as she seemed to have a relatively clean past without any highly controversial incidents. The vote itself is also not that surprising as it was basically straight down party lines. I am interested however to see how Justice Kagan falls ideologically on the bench. Everything I have read on her makes it seem like she is fairly moderate in her beliefs, which could make her the major swing player on the bench.

[Pangloss]

It's a slim margin for a confirmation -- five fewer than Sotomayor, 15 fewer than Roberts. Given the predictions of smooth sailing and fairly obvious moderacy, some are suggesting that this is a sign that we're headed toward much rougher confirmations in the future.

 

Though it confirmed her Thursday as the newest justice by a 63-37 vote, Kagan has the dubious distinction of receiving one of the lowest total of “yes” votes for a nominee during the past three presidencies — and the lowest number of confirmation votes ever for a justice picked by a Democrat.

 

“We are well on our way to a huge train wreck,” said Tom Goldstein, a veteran Supreme Court litigator. “I do think this is a corner we won’t be able to turn back [from], or at least there’s no sign the Senate will turn back from, for a long time.” If 60 “yes” votes “is the best anyone is going to have, a Supreme Court confirmation fight could easily turn into thermonuclear war.”

 

http://www.politico.com/news/stories/0810/40729.html

 

At any rate, she'll certainly be easing into things. One of her Wikipedia articles mentions speculation that she may have to recuse herself from 11 of the 24 cases that the Court has already agreed to hear this fall because of her prior involvement in those cases. Given the speed of the court system that could stretch out over several years, and for a while we may see an unusual number of cases decided by only 8 justices, and we could see some more cases of tie-goes-to-the-lower-court-ruling.

 

But I wonder if her particular set of experience might actually be a great boon to the Court. My general impression of her from this process is that she's one of those people who's good at building bridges and cutting through nonsense. I know nothing about the inner workings of the court, but it has gone through a lot of change in the past few years and is probably set to go through a lot more change in the next few years (four remaining justices are over the age of 70). Having a strong, young leader and administrator on the team, especially one with demonstrably moderate and open-minded views, can't hurt.

[Marat]

Lawyers always have two dimensions: what they believe in their role as 'hired guns' working for clients, and what they believe when they are free to state their own views on the bench. Keeping that in mind with Ms. Kagan, it is important not to confuse the advice she gave to government clients with what she may really believe on her own.

 

Being a good supreme court justice is essentially about being a talented interpreter of the law, so there is no reason why experience as a litigator or judge is necessarily any more important than being a good academic. That said, Kagan's academic qualifications are dreadful, since she doesn't have enough publications to get a part-time teaching position at a third-rate law school. The fact that she is dean of Harvard Law School says more about how far affirmative action has gone these days than about her genuine qualifications. She does have the unique qualification of being the only Supreme Court appointee to look exactly like Lou Costello.

 

Supreme court appointees often become quite unpredictable once they gain a seat on the bench, so it is difficult to judge whether Kagan will be more left-wing or right-wing. The Federal Court judge who just ruled against the gay marriage ban in California was appointed to be right-wing, so it is clear that judicial philosophy is always an open question.