Harvard law professor Jack Goldsmith testified in support of Elena Kagan’s confirmation to the Supreme Court today. No doubt one reason he was asked to testify is because he is a noted conservative and former Assistant Attorney General for the Office of Legal Counsel in the Bush Administration, and it’s always convenient to have a prominent legal figure from the “other side” testify in support of a nominee. But one thing the Senate Judiciary Committee might not have expected is how he concluded his written testimony:
It is discouraging that I feel compelled to add, in closing, that nothing in my assessment of Kagan’s suitability to be a Supreme Court Justice turns on a prediction of how she will vote on particular cases as a Justice. Many people assume – based on her service in the administrations of two Democrat presidents, and the fact that President Obama nominated her – that on many legal issues Kagan’s will come down on the left. It would be surprising if this assumption were not true to some degree; but I do not know it to be true. What I do know is that Kagan will be open-minded and tough-minded; that she will treat all advocates fairly and will press them all about the weak points in their arguments; that she will be independent and highly analytical; and that she will seek to render decisions that reflect fidelity to the Constitution and the laws.
The President of the United States is entitled to choose a judicial nominee whom he believes reflects his judicial philosophy; and his decision to nominate a highly qualified individual who swims in the broad mainstream of American legal life – a description that Kagan easily satisfies – warrants deference from the Senate. Some Democratic members of this Committee implicitly or expressly embrace this principle today but did not do so during the hearings for Justices Roberts and Alito. Some Republican members of this Committee implicitly or expressly embraced this principle during the hearings for Justices Roberts and Alito, but not today. The Democrats are right now and the Republicans were right then. But the opportunistic embrace of the principle, and the often-extremely-uncharitable characterization of the records of nominees of presidents of the opposite party, can only mean that neither side really believes in it. Such opportunism under the guise of principle is, with respect, worse than just regrettable; it damages the very judicial system the Committee is charged with nurturing and overseeing.
Miguel Estrada, a distinguished conservative lawyer who in my view was treated very unfairly by this Committee when he was nominated to serve on the federal bench, wrote to this Committee of Kagan: “If such a person, who has demonstrated great intellect, high accomplishments and an upright life, is not easily confirmable, I fear we have reached a point where no capable person will readily accept a nomination for judicial service.” I completely agree. Elena Kagan is immensely qualified to serve on the Supreme Court. She should be easily confirmed.
Goldsmith is exactly right, and should be commended for his willingness to speak so forthrightly to the Committee.
Dave N. says:
Jack Goldsmith is spot on. And Patrick Leahy needs to reflect on his comments just as much as Jeff Sessions does.
July 1, 2010, 8:42 pmCornellian says:
Heck, if he’s got the guts to say that to the Senate Judiciary Committee, Obama ought to nominate him for the next vacancy.
July 1, 2010, 9:02 pmguest1 says:
I’m sorry, but a lot of this, and much of the surrounding debate concerning who is in the right and in the wrong in the confirmation wars, is just bullfeathers.
1) The notion that General Kagan is not easily confirmable is not credible, as will be demonstrated next month when she is easily confirmed. Whether she is confirmed 65-35 or 90-10 is important only to the egos of those involved; it has zero effect on our “judicial system,” on her legitimacy as a Justice, or on her qualifications to serve.
2) The notion that the Senate Judiciary Committee, by exploring nominees’ records, causes greater “damage the judicial system” than nominees who decline to give substantive answers upon which said Committe members can base a meaningful vote to appoint said nominees to a lifetime position on the U.S. Supreme Court is not credible.
3) The fact nominees act as described in 2) may play no small part in what Prof. Goldsmith terms as Committee members’ “often-extremely-uncharitable characterization” of nominees’ records. But see Bork, maybe, though it’s hard to believe that Committee members wouldn’t spend more time discussing substantive legal issues, and less time on characterizing nominees’ records, if nominees would spend more time meaningfully answering questions about substantive legal issues.
4) The presidential deference argument, it seems to me, is an argument for no confirmation hearings at all, since no confirmation hearing will ever again give rise to an issue that would be sufficient for a Committee member of the opposite party to overcome the presumption in favor of presidential deference.
July 1, 2010, 9:02 pmKenneth Anderson says:
I say … hooray for Jack Goldsmith!
July 1, 2010, 9:04 pmcboldt says:
– Such opportunism under the guise of principle is, with respect, worse than just regrettable; it damages the very judicial system the Committee is charged with nurturing and overseeing. –
I’m not sure how to take this. Is the judicial system being populated with unqualified or otherwise “wrong” judges? If the lament is that qualified people aren’t getting on, those (qualified) people are absent from the judicial system, and to my way of thinking, being absent, aren’t in a position to damage it.
Seems to me that the outfit being damaged by acting like jerks would be the outfit accused of acting like jerks, the Senate.
– a person, who has demonstrated great intellect, high accomplishments and an upright life, is not easily confirmable, I fear we have reached a point where no capable person will readily accept a nomination for judicial service. –
I know this is Estrada talking, so my remarks aren’t reflecting an impression directly attributable to Goldsmith. I don’t think the qualities of great intelligence and accomplishment, and having maintained an upright life, are sufficient to reach a decision. Similarly, I can imagine a person being “capable,” yet having intentions and plans that are inimical to the constitution. In short, the complaint is a sort of reverse platitude.
The amount of politics that goes into choosing judges is somewhat proportional to the amount of politics the judges take on themselves in rendering decisions, or are forced to take on by our feckless Congress. Get the political hot potatoes out of the Courts, and then the politics will vanish from the selection process.
July 1, 2010, 9:08 pmAeon J. Skoble says:
Jonathan, aren’t you worried about the deference-presumption argument “guest1″ alludes to? There’s a news article making the rounds wherein she claims it would be ok under the commerce clause to mandate certain dietary restrictions. Shouldn’t the senate press her on that? Isn’t it the case that we should _not_ defer to a presidential choice if she’s that liberal about the meaning of the commerce clause?
July 1, 2010, 9:11 pmBrett Bellmore says:
No question about that. He’s absolutely entitled to nominate anybody he wants, including a trained chimp. He’s not, however, entitled to have them confirmed, let alone without a fight.
And as fair minded as Goldsmith’s remarks are, that sort of fair mindedness is why conservatives are losing the Constitution. Because, make no mistake, there’s not a chance Kagan would have been nominated if she weren’t a certain vote to continue it’s destruction.
July 1, 2010, 9:17 pmAJK says:
Are there ANY substantive viewpoints which would entitle a senator to vote against a nominee? What are some examples?
July 1, 2010, 9:19 pmRedlands says:
Not that a single Senator will take it to heart.
July 1, 2010, 9:24 pmDavid Welker says:
Of course Jack Goldsmith is right. Well at least he is right about some Senators often being inconsistent whenever their partisan political interests are at stake. I am less sure that he is right about what level of deference Presidential nominees deserve. Although I believe that the filibuster of judicial nominees, like all filibusters, is an unconstitutional practice, I am not certain that Senators have a duty to defer to the President on judicial nominees they disagree with on ideological or philosophical grounds who are said to occupy the mainstream. Especially since what is or is not mainstream is, I think, more of a subjective social construct than anything more solid or objective.
But even though I think Goldsmith is right about Senators behaving in an opportunistic manner based on partisan political calculations, I am doubtful that his comments have much chance of having any influence. Good for him for trying though.
The only reason that I think Kagan has a chance of being nominated is because Republicans believe that she is the best they can hope for and also they are unwilling to actually engage in a judicial filibuster at this point. And even if Republicans did engage in a filibuster, it is unlikely that could hold their own caucus together in support, so they would lose.
That is, I believe Kagan’s nomination depends much more on political realities than any principle concerning what deference Presidential nominees do or do not deserve. Republicans who would like to block her are too politically impotent in this context to actually do so successfully.
July 1, 2010, 9:29 pmJonathan H. Adler says:
No. Once we open this door we’ll be opening the door to a whole series of questions about the degree of deference justices must show to Congress, and this will lead to Congressional rejection of those nominees who do not appear sufficiently deferential, and will undermine the independence of the judiciary. Senators already ask nominees far more specific and pointed questions than do those in the Executive Branch considering potential nominees. There’s no need to encourage them.
JHA
July 1, 2010, 9:43 pmleo marvin says:
Waxx and Bellmore have discovered our plot for Manchurian Conservatives to hypnotize the Senate into packing the Supreme Court with fifth columnists. Change your passwords!
July 1, 2010, 9:51 pmcboldt says:
– Aeon J. Skoble: Isn’t it the case that we should _not_ defer to a presidential choice if she’s [admitted she will read the Commerce clause out of the constitution]?
July 1, 2010, 9:56 pmJonathan H. Adler: No. Once we open this door we’ll be opening the door to a whole series of questions about the degree of deference justices must show to Congress –
I substituted my own words in Skoble’s question, in order to illustrate a risk in eliminating substance from the confirmation process.
One of the ways a Court can go wrong is by showing too much deference to Congressional enactment.
If, on the other hand, one views say Stevens and Alito’s opinins in McDonald as “either one could be right,” then lets skip all the analytical crap, and coin toss when the court is split. After all, either outcome is correct.
SuperSkeptic says:
When each side ceases to embrace “partisan” “interpretations” of the Constitution this opinion will be worth a damn. Since that’s not likely, let us be grateful nobody is being dragged out of the Senate at sword-point – yet. Until then, let us be grateful for “debate”. . .
This “presidential deference” argument is getting old. Does not the President’s nominee get enough “deference” simply by being the president’s nominee?
The only thing that “damages the very judicial system the Committee is charged with nurturing and overseeing” is the lack of an independent judiciary.
July 1, 2010, 10:00 pmwm13 says:
If you reward bad behavior, you get more of it. (I wonder if Jack Goldsmith has any children.) President Obama is laughing up his sleeve at the suckers like Profs. Goldsmith and Adler, knowing that they are useful idiots to whose views he will never give the civility and deference they give to him.
July 1, 2010, 10:03 pmSuperSkeptic says:
… hahaha
July 1, 2010, 10:03 pmOperationCounterstrike says:
Mr. Adler, as I recall you were very vocal about “climate-email-gate”. Any comment on the article in NYTIMES about how Prof Mann was totally exonerated? How about a blog entry?
July 1, 2010, 10:19 pmRoger says:
From the other side? Goldsmith says that he does not even know whether Kagan will come down on the left on many issues. He just has an opinion that Obama should get his way. But it was Obama who voted against Roberts and Alito, and Goldsmith does not have the guts to say that. I agree with guest1.
July 1, 2010, 10:19 pmBob from Ohio says:
He switched sides some time ago. Now he uses his former credibility to give aid and comfort to the political “enemy”.
In the end, guys like Goldsmith only care about the nerve of mere politicians to question the priestly lawyer caste.
July 1, 2010, 10:28 pmBob from Ohio says:
Good. The imperial judiciary need some undermining.
Maybe if the executive Branch starts asking more and better questions, we’ll start avoiding the Souters of the world.
July 1, 2010, 10:32 pmKent Scheidegger says:
Should intellect, accomplishments, and an upright life be sufficient to confirm a nominee when that nominee himself testified they were not enough while opposing a nomination of the previous administration?
(Not referring to Kagan, but another pending nomination.)
July 1, 2010, 10:41 pmDoc Merlin says:
I don’t like all this deference to the president.
July 1, 2010, 10:46 pmMark Tillar says:
I am not a first tier or even a second tier graduate, so excuse my lack of understanding of why the President should get ‘his nominee’ nor why the U.S. Senate should confirm a nominee who is so hostile to the U.S. Constitution as written. I see a radical who will pursue a ‘living breathing constitution’ in every decision. I just see a person who is unsuited to make decisions affecting my children and grandchildren. She should be a senator from Illinois.
July 1, 2010, 10:51 pmSarcastro says:
Obama nominated Kagan, ergo she is evil. Or Liberal, which is worse than evil.
The only thing to do is straight up knee-jerk obstruction. Who cares if you don’t have the votes? This is totally a hill to die on. For honor!!
July 1, 2010, 10:53 pmSarcastro says:
I know, the radicals are everywhere! Like, over half the popular vote!!
July 1, 2010, 11:00 pmDangerMouse says:
Get real. You think that the questions asked of Kagan are specific? She’s mouthing platitudes and trying to charm her way into an seat so she can rule over all of us with an iron fist. How many more babies have to die because she’s going to be on the bench? Your deference is capitulation in the face of evil. She is a statist and wants to destroy individual liberties. She also has no problem destroying the basic civilizational building block of the family and will impose gay marriage on the entire country notwithstanding its rejection by the populace. She’s another vote in favor of child murder. Her objectives are clear and that’s the reason why she’s not getting specific – she’s trying to hide them. There is nothing wrong with openly rejecting judicial nominees who demonstrate a will to power like her. That’s the entire point of the confirmation process – not to abet the destruction of liberties, but to protect them. All liberals who subscribe to that (really, all liberals) should be rejected on that principle alone.
This deference lunacy of yours is idiotic. It is a fantasy to believe that the Senate should rubber stamp all statists who openly and proudly declare that they will move the court according to their liberal objectives.
As for your fear that Congress will demand deference – open your eyes. Imperial power flows from the Court. Nothing gets done in this country unless the Court says so. Not even fighting wars. You think that the Court deserves more freedom of action? It deserves less. The Framers were not idiots and knew that lifetime appointment was a dangerous thing. They were well aware of the temptations of men. Lifetime power provides independence – providing they get through a very narrow gate. They directly envisioned that the confirmation process would not be a rubber stamp but would provide for judges who are not hell bent on destroying the last vestiges of American liberty before the State. However, they did fail to recognize that the legal profession would be transformed into a self-sustaining leech on the growing bureaucratic state, and they did not envision that an entire legal philosophy would develop that marks as its only claim to fame the rationalization of any Court decision because of politics.
The confirmation process should be designed to weed out all statists and libs. And yes, while no system is perfect and a judge cannot be expected to be an angel once he’s on the court, there is the impeachment process to make sure they take their oaths seriously. Judges should be regularly impeached. At least that way, they won’t be able to do so much damage if they’re a bad judge.
July 1, 2010, 11:02 pmConstantin says:
That’s a nice speech Goldsmith gave.
Now, in the real world, if the Right wants to keep people like Kagan off of the Court, they should:
(1) Find a way to elect a president whom the entire country will not end up loathing by the time he’s done, or
(2) If (1) fails, follow up by nominating a guy, the next time, who is at least moderately interested in winning the election, and is less concerned with making sure his buddies don’t call him a racist for putting forth even a sporting effort to achieve said victory.
July 1, 2010, 11:07 pmrpt says:
And again, who appointed you as the only one who knows “the Constitution as written”. It’s either living or dead. You choose.
July 1, 2010, 11:10 pmDangerMouse says:
Well, of course that goes without saying. But I guess every nation, like every city, has to have its David Dinkins.
July 1, 2010, 11:18 pmSarcastro says:
Sweet, an inquisition! I call the Iron Maiden!
July 1, 2010, 11:19 pmORID says:
I said it before, and I’ll say it again (although in one post I did contradict myself). I would not vote for Kagan or *anyone else* with her background as a political adviser. In fact, that she was a political adviser was ignored by so many. So the next time a Republican puts up a person with a “legally qualified Karl Rove type”, for nomination, I will oppose that person too.
I’m sad that the Republican Senate did not focus on her record while working for Clinton, and did not even ask her about her role in the Lewinsky fallout; no doubt those documents were with-held from the Clinton Library release. Of course the Clinton-Lewinsky questions would’ve been uncomfortable, but no more uncomfortable than trashing on Justice Marshall which was ridiculous in a hearing for Elena Kagan.
Now that we know Kagan was involved in that partial abortion issue, how can she not recuse herself on any abortion issue that comes before the court? How many other policy issues will she need to recuse herself of based on her time in the White House? Quite frankly, I’m more disturbed by the lame questioning by the Senators; who showed that them or them staffs took no care in reviewing Kagan’s record. Certainly the Democrats really wouldn’t care. In fact they played up her time at HLS and her fairness, obviously.
I have no doubt that Kagan is qualified, however the fact that she took such a political role in the White House disqualifies her. Like I said before, she should’ve gone onto a circuit court rather than the Supreme Court. If she proves herself to be a fair judge, then she can go onto the Supreme Court at a later time.
July 1, 2010, 11:20 pmSarcastro says:
It was like twice as convincing the tenth time! Keep at it. But you’ll need to practice your brevity if you want to equal “Straight up Racism” guy or “David Berstein doesn’t care about Black People” dude.
July 1, 2010, 11:25 pmSuperSkeptic says:
Because the Constitution is amendable by popular vote!
[I know the argument that this is essentially our amendment process now by default, but if that is the case, why object to the political obstructionism?]
July 1, 2010, 11:32 pmDilan Esper says:
The confirmation process should be designed to weed out all statists and libs.
Danger, you need to win some elections to do that.
July 1, 2010, 11:41 pmKen Royall says:
Oh sure, Obama does deserve this deference. Because he has shown said deference to Republicans as he trashes them on a daily basis and blames them for all the worlds problems. We are in a fight for no less than the future of Western Civilization. The way you get rid of someone like Kagan is you make it impossible for her nomination to go forward and the other side quits. To do that you have come out with both barrels blazing. The woman literally doctored up a report in order to see to it that infanticide remained legal, if that is not a hill to die on then we might as well quit.
July 1, 2010, 11:44 pmPliny the Eldet says:
Since many people persist in treating it as obvious that SG Kagan is qualified to serve on the Court I have a question: Is there any amount of experience as an attorney that conspirators think is required? Suppose SG Kagan had not served 16 months as SG, would she still be qualified? What if she ahd never been Sg and not worked those 1-2 years in a law firm?
July 1, 2010, 11:48 pmSuppose someone graduated #1 from Princeton, received a masters from Cambridge, finished #1 at Harvard law, then clerked for Justice Blank (whichever Justice you think is the best) at the Supremes. If nominated for the Court, should she be confirmed? What if we throw in a couple of publications in the top law reviews and a scholarly tome on you favorite amendment?
Is there any other field where one can get a top job after working in the actual field for three years?
Sarcastro says:
Not to be over-dramatic in your victimization narrative…
July 1, 2010, 11:49 pmDangerMouse says:
Oh, I have no fear of that. That will come. New York won’t be electing a David Dinkins for a long, long time. Stuff White People Like involves voting for a black politician. But that’s a one time thing. Same with America as it was for the City. Obama is toast. The next black president will be a conservative, mark my words.
July 1, 2010, 11:50 pmSarcastro says:
[SuperSkeptic wrong does not mean radical.
Though the idea that the only viable philosophy is that the Constitution's meaning must remain exactly as it did 300 years ago except for few Amendments seems a bit...radical to me.]
July 1, 2010, 11:52 pmDavid Welker says:
You know, I actually like crazy objections to Kagan. Mostly because I find them amusing.
The end of Western Civilization Mr. Royall? Hah! You have no idea what is actually at stake. We are talking about the end of Civilization, not just Western Civilization!
Crazy people are fun.
July 1, 2010, 11:54 pmORID says:
Dear Sarcasto,
Thanks for providing a substantive response to my concerns. If you are not concerned with how the political process works, once a line is crossed (and I believe her nomination is that line…); the other party will cross it as well. So the next time the Republicans get a Supreme Court Justice, they will nominate whoever their youngest, most brilliant, legal mind is even if he has a political background.
I’m not objecting that Kagan worked as a research assistant to Dukakis, I’m objecting to the fact that she has such a political background. Now I know everyone else has already made up their minds that this isn’t a worthy objection; I’m not convinced.
To be honest when I look at the Supreme Court I want to see more opinions like Justice Thomas gave on McDonald. That was a unique opinion compared to the other 4 justices who agreed with Alito. I don’t know if Breyer and Stevens responded to Thomas. I also liked Thomas’ opinion on Doe vs. Washington; its not popular but he is principled.
Regardless, my biggest disappointment is that Republicans didn’t ask Kagan questions like, “did you really ghost-write meet the press scripts?” and “why do you think that ‘aggressive driving’ is a Federal issue?”, or “why was such a brilliant lawyer like yourself placed into a policy position, and not a legal positions?”.
Anyways, the Kagan nomination has resulted in a treasure trove of documents for me to see how the Executive Branch works, and how the White House office works. It’s very informative to someone who had no idea…
July 1, 2010, 11:54 pmLN says:
After Bush I learned to never vote for a white politician again. Maybe there will be a Puerto Rican candidate next time.
July 1, 2010, 11:56 pmDangerMouse says:
Ken Royall: a small quibble. Obama does not blame Republicans for all the world’s problems. He blames George W. Bush for all the world’s problems. In that, he’s merely following the mindless drone of all libs who mouth that pitiful excuse to cover up for all of their failures. If Obama were to blame Republicans for all of the world’s problems, he’d be demonstrating an independence that so far he seems to be incapable of.
Other than that, you’re right.
July 1, 2010, 11:57 pmSteven Appelget says:
Poe’s Law.
Learn it. Love it.
July 1, 2010, 11:59 pmLN says:
So next time the Republicans will nominate Roberts. The Dems made them do it!
July 1, 2010, 11:59 pmDavid Welker says:
Of course it is a federal issue if you drive aggressively on federally funded interstate highways. And the United States also has an interest in the safety of its citizens. That way it can recruit them to fight in wars. =)
July 1, 2010, 11:59 pmDavid Welker says:
Mr. Royall:
Dangermouse thinks your right. Now you know you really need to adjust your views.
I mean, I thought your Western Civilization line was a little crazy. But being endorsed by Dangermouse is worse. You should be worried.
July 2, 2010, 12:02 amSarcastro says:
[ORID, you have had those same concerns out with a number of posters in a number of threads. Your thoughts have been heard and addressed a number of times already. Now it's just getting repetitive. Now I'm beginning to skip over your comments, as I have read the equivalent not long ago. That's what I'm saying.]
July 2, 2010, 12:02 amAspen says:
Why should Congress show deference to a President that shows nothing but disdain for the rule of law? We have pay czars, nationalized carmakers, modified bankruptcy that favors the politically connected, extra-legal compensation funds, inspector general firings, and civil rights abuse whitewashes courtesy of this President. Congress should fulfill their Constitutional responsibilities only after the President has shown a willingness to do likewise.
July 2, 2010, 12:14 amDangerMouse says:
Hey Davey-boy, I said I disagreed with him. Obama blames George W. Bush for all of the worlds problems. Everyone knows he says that.
Besides, Obama won’t destroy Western Civilization. He’s a catalyst, not a cause.
July 2, 2010, 12:16 amArthur Kirkland says:
Any conservatives who believe conservatives are losing the Constitution — despite 7-2 and 6-3 Republican advantages at the Supreme Court for many years, and substantial advantages among the lower federal courts — might wish to recalibrate their Constitutional compasses. If for no other reason that their disposition, because conservatism has had a relatively good and long run in the federal courts, and that tide seems at least as likely to turn as not. The folks who want to use the criminal law to prohibit morning-after pills and early-stage abortions are probably never going to be happy, and societal trends also appear to disfavor those who want the law to punish homosexuals, but most other conservatives have had a good a wave to ride as they are likely to encounter.
July 2, 2010, 12:36 amSarcastro says:
Aspen, and Ken Royall‘s nearly identical arguments make me want to join in:
“I hate Obama’s policies (and let me count the ways…), so vote against Kagan!”
July 2, 2010, 12:43 amORID says:
More from Kagan’s record that would’ve been ample ammunition:
We spent most of the meeting reviewing a list of policy options for health and safety standards developed by the Maternal and Child Health Bureau of HHS. For each option, a tension remains as to whether to apply any new requirements to just child care centers, or to family providers as well (i.e., licensed v. unlicensed providers). Policy options for health and safety standards included:
(list omitted)
As in the last meeting, we again discussed HHS’ lack of authority to regulate in this area. Elena asked the Child Care Bureau to check with their lawyers about how far they can push the envelope on regulation without new regulatory authority.
—-
There are five states that do not require either criminal background checks or child abuse checks for child care center and family child care providers (AL, DC, NJ, TN, WY). However, there are many states that require one type of check and not the other, or require checks for child care center providers and not family child care providers.
Elena viewed this as an excellent issue to include in the Administration’s anti-crime agenda, and asked the Child Care Bureau to develop another working group with DOJ in order to prepare a policy proposal and look into the possibility of developing a national registry.
—-
(Tobacco)
Both WH staff and Daschle staff expressed strong desire to limit # of amendments in an attempt to get this done this week. Finally, when discussing look-backs, Elena again stressed the need to call the look-back payments “surcharges” and not penalties. All members are urged to avoid the expression “penalties” in an attempt to preserve their long-term success in expected litigation.
1) I think it appears clear Elena will provide large deference to Executive power.
July 2, 2010, 12:49 am2) A national registry for child-care workers is a great idea?
3) Yes, let’s make sure we don’t call those things “penalties” so we don’t get any trouble in future litigation… even though they are “look-back payments”.
John Martin says:
LOL.
Really? Mainstream American legal life…on what planet?
July 2, 2010, 12:54 amORID says:
It also looks like Elena was involved in the headwaters issue with Department of Interior and FDIC.
Recent news on headwaters:
A federal judge in Houston has ordered the Federal Deposit Insurance Corp. to repay financier Charles Hurwitz as much as $72.3 million in a high- profile case involving a failed savings and loan and the Headwaters old-growth redwood forest in Humboldt County. In a ruling issued late Tuesday, Federal District Judge Lynn Hughes found that the bank regulatory agency carried out what amounted to a shakedown designed to force Hurwitz’s Maxxam Corp. to sell the environmentally precious stands of trees so they could be set aside in a park. The judge’s order is a vindication for Hurwitz, who filed suit against the FDIC in 1997, arguing that the agency had acted on political grounds when it had sued him for $250 million in 1995.
E-mail about kagan
elizabeth — your main job on this right now is to get rob to set
up the meeting with garamendi. but, i also need you to bring
elena kagan up to speed and have her ready to participate in this
meeting and help to give us guidance. that will involve finding
out as best as you can who from interior has been involved in what
parts of this and putting as much of this together for elena as
possible. i would like to meet with elena after she is up to
speed but before we bring garamendi in. i want this all to happen
fast before he does something that causes us trouble.
So… Kagan was involved at some level about headwaters, but that wasn’t part of the public record. I’m assuming she was involved in a defense strategy for interior.
July 2, 2010, 12:59 amrpt says:
This is what $685/hour buys. Wow.
July 2, 2010, 1:00 amORID says:
Sorry, I found this amusing:
Elena Kagan hypes up the State of the Union address:
MEMORANDUM TO LAURA EMMETT
From:Megan Moloney, Director of Radio Services
Re : Conf irme’d Interviews for Elena Kag’an
The following are confirmed interviews for Elena to do regarding SOTU. Attached is a
briefing packet for her. please let me know if you have any questions or problems with the
stations. Thanks.
On pre-emption:
I didn’t realize the Executive Branch could unilaterall pre-empt state and local laws.
*Elena found less overlap than hoped between the Reagan Federalism E.O. (12612), and the Presidents Unfunded Mandates (12875) and Civil Justice Reform (12988) E.O.s.
July 2, 2010, 1:18 am*The Civil Justice E.O. doesnt say much about preemption (it simply instructs agencies to be clear in their rules when they intend to preempt state and local law).
See… wouldn’t it have been nice if one of the fine Senators bothered to ask Elena if she would defend Executive Order pre-emption? So it was Kagan whose position was over-turned by Wyeth?
Aspen says:
The argument isn’t about policies. It’s about specific acts that replace the rule of law with Presidential prerogative. I feel that citizens, businesses, and government agents making decisions in reliance on federal laws and administrative codes cannot depend on this President to faithfully administer those laws and codes. I believe our elected representatives in Congress should be doing everything possible to ensure that persons nominated to serve as the final arbiters of justice will not be unduly deferential to claims of executive authority. Ms. Kagan’s personal history and testimony lead me to believe that she would give her own political preferences more weight than any originalist understanding of the Constitution and, therefore, that she cannot be relied on to work to preserve our system of liberties. An attempt to thwart her confirmation using any legislative tactics that have previously been applied in judicial confirmation hearings would have my full support.
July 2, 2010, 1:59 amSarcastro says:
Of course Obama is unfaithful to America’s laws and codes! He’s from Chicago, the den of scum and villainy equaled only by San Fransisco. Really, it’s a wonder he hasn’t yet arrested you or Glenn Beck, or declared martial law, or shut down Fox News.
There is nothing to do but just froth and yell on the Internets and hope your representatives are all knee-jerk reactionaries! Only by being flagrantly unreasonable can Obama’s unfaithfulness be stopped! (I hear the electorate loves it when one side decides the other is evil and just stops working with them.)
July 2, 2010, 2:34 amBathus says:
Note to Mr. Goldsmith:
You observe, rightly, that both parties pay only lip service, when convenient, to the universally exalted truism that “The President of the United States is entitled to choose a judicial nominee whom he believes reflects his judicial philosophy; and his decision . . . warrants deference from the Senate.”
Being a generous spirit who believes his fellow creatures do wish to be guided by what is true more than by what is expedient, I wondered why such an obvious truism has so little compelling effect, and that made me begin to doubt whether the truism was true. As to the first part of the truism, that the President is “entitled to choose a judicial nominee whom he believes reflects his judicial philosophy,” I found nothing in the Constitution to indicate otherwise. So, necessarily, I wondered if the second half of the truism might be defective. I looked, but could not find, the Constitutional provision mandating, warranting, or even so much as suggesting “deference” on the part of the Senate. Indeed, I wondered, “Since the President is ‘entitled’ to consider ‘judicial philosophy’ when he chooses his nominee, then why, as a matter of balance among the branches, are not Senators, individually and collectively, also equally ‘entitled’ to consider ‘judicial philosophy’ when they decide whether to consent to his choice?” (I put the words “judicial philosophy” between quotes only because I am not clear what those words mean, specifically, whether or not “judicial philosophy” connotes something more than a judge’s analytical methodology, and perhaps connotes something about a judge’s politics. But that’s a digression for another time.)
I do very much like it that the Constitution protects federal judges, on their good behavior, from the whims and rigors of politics after they are confirmed. But it occurs to me that this very fact–the fact that judges, after confirmation, are so thoroughly insulated from politics, holding their positions essentially for life, not having to answer to the people upon whom they rule–is all the more reason that nominees should be subjected vigorously to the rigors of politics before they are confirmed. That these powerful persons should have to emerge from a process that includes partisan and even temporal political considerations is perfectly consistent with the principles and requirements of representative government.
It does not bother me that the Constitution’s confirmation process for judges entails intense partisan political wrangling. To expect otherwise would be naive, and perhaps you will agree that the framers were not naive about such things. Perhaps you will also agree that the framers’ solution for political wrangling was not simply to wish it away, which is what you seem to want to do. (“Can’t we all just get along? No, not unless we fight it out first!) You yourself admit that “neither side really believes in” your truism. You should seriously contemplate the possibility that the reason neither side believes your truism is that the truism is simply not to be believed.
I would like to go even farther to make the stunning contention that partisan political wrangling is not only inevitable, but is also an activity that is good and necessary in all our constitutional processes for selecting officeholders, including the process of judicial confirmation. The real problem here, to the extent there is a problem, is that, although your truism is defective–impracticable and inappropriate to the process–it sounds so good and noble that senators will, as you point out, use it as an expedient to disparage political opponents and shield favored nominees from precisely the kind of rigorous political testing that a healthy and robust confirmation process not only permits but actually requires. Things would go better if we’d all just drop the highminded pretense and get down to the dirty business that everybody knows must and will be done.
Lastly, and please don’t take this personally, it seems to me that all this gentlemanliness–all this rightous indignation about how such and such a person is such a brilliant legal mind, such a fine judicial termperament, such an all-around good human being, that it would be a travesty were he not confirmed–all that bunk, is at its root a silly, selfish clubiness and sense of entitlement among legal elites that is more than simply offensive. An illustration of what I mean here: Although I am as conservative as a conservative can get, and although I have great regard for Miguel Estrada, in consideration of the life and health of our polity I do not give a small rat’s rumpus whether somebody thinks Mr. Estrada was “treated unfairly.” I do not care if a judicial appointee is made to walk naked and bowlegged through political fire. (And here please do not resort to the line about how “good qualified people won’t subject themselves to such treatment.” If you believe that, you know nothing about human ambition!) The process grinds some up and spits them out, some good and some bad, but actually there’s nothing unfair about it, because in politics you win some and you lose some, and that’s just the way it goes. In a political process–and a confirmation hearing is a political process–unless one has wrongly been hanged, put on trial, or had one’s property confiscated, there is NO SUCH THING AS BEING TREATED UNFAIRLY.
July 2, 2010, 2:35 amleo marvin says:
When I see a thread like this one I get very still, like I’m watching whooping cranes mate.
July 2, 2010, 2:40 amThe River Temoc, In Winter says:
Come out to Silicon Valley sometime. There’s a little company out there called Google.
July 2, 2010, 2:47 amAlessandra says:
Bingo.
July 2, 2010, 3:34 amAnderson says:
I don’t think the qualities of great intelligence and accomplishment, and having maintained an upright life, are sufficient to reach a decision. Similarly, I can imagine a person being “capable,” yet having intentions and plans that are inimical to the constitution. In short, the complaint is a sort of reverse platitude.
Cboldt nailed this early on.
It must suck to be a conservative. Evidently, you don’t just have to believe that liberals are destroying the Constitution, which is a scary enough idea — that the country teems with traitors, including everyone who voted for Obama.
No, the paranoia goes deeper: bunches of conservative law profs and judges, the very people who you think are the last ditch of resistance against the liberal-fascistic enemy, are rolling over on their backs and saying that the Kenyan Socialist’s nominee should be confirmed, despite the fact that she is, by definition, an enemy of the United States, devoted to the destruction of the Constitution, and thus no better than Osama bin Laden. Worse, when you think of all the fetuses whose lives she is sworn to end prematurely. 9/11′s got nothing on legalized abortion, right?
Frankly, I don’t know how y’all get through the day. Prozac? Alcohol? Blog commenting?
July 2, 2010, 4:29 amDavid Newton says:
Just because Kagan might interpret the law in a “liberal” way is not in and of itself sufficient to invalidate her suitability for the Supreme Court. What does invalidate her suitability is that because of her political views she is not prepared to treat the US constitution’s original meaning with due deference. What also invalidates her suitability is things like the partial-birth abortion report disgrace.
It should also be noted that any person who is not prepared to read the original meaning of the constitution of the jurisdiction they are in and follow it is unsuitable for high judicial office in the United States. Just as Kagan is unsuitable for the US Supreme Court, a judge in California who fails to follow the meaning of the California Constitution when it was originally passed makes them unsuitable to hold judicial office. Statutes and constitutions should always be read in the context of the time they were passed. Amendments to statutes and constitutions should always be read in the context of the time they were passed.
To take a somewhat ridiculous example, if a statute from the 18th century regulating noise from parties referred to those of a “gay disposition”, then to claim it applies to homosexuals would be ludicrous. To take a much more serious example, the commerce clause grab for power made by Congress over recent decades clearly violates the original meaning of the clause and (incidentally) also violates the current meaning of the clause. The failure to strike down laws in violation of commerce clause is a disgraceful inditement of the suitability of members of courts across the nation to hold the offices they hold.
This position is extremely unlikely to gain any traction in the current climate. It makes it hard for vested interests to gain power and it diminishes the power of a lot of people. There is a way to deal with bits of the US constitution people do not like: amend it. That was deliberately made hard enough that is has only once been short-circuited by something which was actually reversed: prohibition. There are so many things that Congress has done over recent decades which should have required an amendment to the US constitution and should have been struck down by the Supreme Court and it shows how far the rot has set into the system.
Filibustering nominees simply because their political philosophy is different is fundamentally wrong. Filibustering nominees because of substantive concerns is not wrong. Filibustering nominees because of substantive concerns is something which does not happen very often at all and requires politicians to show principles which is almost substantively impossible at the moment.
July 2, 2010, 5:05 amBrett Bellmore says:
The sad thing is, I can’t tell if you’re talking about the first Bush, followed by the failed Dole candidacy, or the second Bush, followed by the failed McCain candidacy. It IS something of a rut the GOP has fallen into, isn’t it?
There’s a reason I said “conservatives” not “Republicans”. “Republicans” have had strong influence over the composition of the federal bench, due to “Republican” Presidents being elected more often than Democrats. “Conservatives” have had hardly any influence over the composition of the federal bench, in no small measure because the leadership of the GOP have been working to thwart them.
July 2, 2010, 6:11 amMidlantan says:
Your lack of understanding is not excused.
July 2, 2010, 6:45 ambailey says:
What “brilliance” did she show during her time in practice or her time in government? Under the Goldsmith/Adler version of deference, is there any view or opinion that a nominee could express that would render them out of bounds and unfit. There doesn’t seem to be. If the Pres was elected, he gets who he wants and the Senate gets to be a rubber stamp.
July 2, 2010, 7:09 amgeokstr says:
Yes. it is quite confining to have to concern ourselves with things like principles, ethics, morals and stuff. I sometimes envy you leftists who obviously have no such constraints on your behavior.
July 2, 2010, 7:40 amgeokstr says:
Anderson:
July 2, 2010, 7:45 amHeck, your “lions” on the Judiciary Committee that get to confirm SCOTUS appointees even get one free drowning and ours don’t.
Learnedtoe says:
I really looked forward to reading the comments on this post. The blather from some is quite disheartening. (Yes, I’m sure Justice Kagan won’t sleep until she has killed every last erratically-driving baby, taken every last musket, and broken the safety glass at the Library of Congress to attempt mouth-to-mouth on the living, breathing Constitution.)
Among the blather, were a few really good questions: what are the basic qualifications for being a Justice? Are they different from the qualifications necessary for being a district court judge or a circuit court judge? Is it an “I know it when I see it” standard? It seems to me that practically all of the jobs held by the last 4 nominees are often only available to those who were admitted to HLS or Yale. Do we want that?
July 2, 2010, 7:57 amI would love to see a full discussion of qualifications for the job. Make it so.
ORID says:
When I think of “fair” I think of someone who didn’t discriminate who they worked for. If Kagan balanced her time working for Clinton and Biden with stints under either Bush, or working for various other Senators on the GOP side, it would make me think she was more “fair”. I would want someone who said, “I really don’t care what party I work for”. Is that really going to happen in politics? I don’t know.
However, when you are a lawyer you do get to choose your cases. So even going outside of a current judge, one can see if a lawyer attached themselves to causes of the left or right. An example of this might be someone like Ted Olson and his work against Proposition 8. I don’t know how many Constitutional lawyers routinely litigate in front of the Supreme Court, but I imagine there are some great ones who have taken causes on both sides. I would consider that to be a lot more allaying of my fears over partisanship.
The problem is the only qualification is getting confirmed. Just as it would allay my fears as someone of the opposite party, it might raise fears from the other spectrum. However one could rebut that with the same argument made in this post.
I don’t know what it means, but it seems to me the McDonald opinion’s written were bitter and biting to each other. Do we need that from our Supreme Court?
July 2, 2010, 8:41 amcboldt says:
– It must suck to be a conservative. Evidently, you don’t just have to believe that liberals are destroying the Constitution, which is a scary enough idea — that the country teems with traitors, including everyone who voted for Obama. –
July 2, 2010, 8:48 amOh please. As if liberals aren’t in high dudgeon over GTMO, waterboarding, FISA, unitary executive, and a host of and other issues. All the debate over Yoo, would he be qualified to sit on SCOTUS? Deference? Or do you see Yoo as harboring ideals inimical to the constitution? He’s “capable” enough to be a law professor, which puts him in the top 1,000th of the population.
My point was that criteria such as “capable,” “upstanding,” and “accomplished” are hollow platitudes. Smoke. Only fools read that rhetoric and find substance.
Hats off to Bathus for a fine exposition. The confirmation process is supposed be critical, not deferential. A call for deference is exactly a diversion away from substance.
Whaddona More says:
I know your “every sperm is sacred” mouth-foaming is for effect, but the comic relief provided by the above is much appreciated. To play along: shall I go boot the hetero-spouse and put a profile up on gayHarmony.com today to get ahead of the curve, or just wait for the inevitable?
July 2, 2010, 8:56 amrhhardin says:
The President of the United States is entitled to choose a judicial nominee whom he believes reflects his judicial philosophy
It’s “who,” not “whom.” Can nobody up there figure out case law?
July 2, 2010, 8:58 amJ says:
Having read some of kagan’s testimony, it must make the people like psuedo-conservative goldstein, cringe at the support they gave an intellectually shallow kagan. Leaving out her liberal stances and the possibility/probability of HOW she will vote…..her vacousness (I know, not a word but you understand what is meant)should not put her on the bench. And, because she is really a female affirmative action individual, the greater intellects will not be able to persuade her to see their side of the argument (you know, the one that pertains to the “flawed and irrelevant document – the Constitution of the USA”,to quote our president).
July 2, 2010, 9:10 amcboldt says:
– It should also be noted that any person who is not prepared to read the original meaning of the constitution of the jurisdiction they are in and follow it is unsuitable for high judicial office in the United States. –
July 2, 2010, 9:12 amI’ve suggested a hands-on test. Ask the nominee to brief the US v. Miller and Presser v. Illinois cases, without rendering any opinion as to whether or not they were properly decided. No need for it to be “off the cuff,” and preferably not. Make it a written question, and give days or weeks to compose the answer. Facts of the case, decision below, holding, basis for holding, and distinguish dicta from elements necessary to obtain the holding. Not that SCOTUS is bound to follow precedent, but it sure as the dickens should be capable of correctly stating it.
Sotomayor failed this test in the Maloney decision.
Bama 1L says:
Whoa, nice!
July 2, 2010, 9:20 amDiggs says:
So when Republicans question a Supreme Court nominee they are supposed to do so with the objective of ensuring that the nominee simply be a “highly qualified individual who swims in the broad mainstream of American legal life”. But when liberals question a Supreme Court nominee, they get to say things with impunity like “Robert Bork’s America is a land in which women would be forced into back alley abortions, blacks would sit in segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of million of citizens.”
July 2, 2010, 9:20 amI don’t buy it. If the conservatives serving on the Judicial Committee simply aren’t able to support and defend the Constitution via their vote against a smart and able nominee who nonetheless wants to deconstruct the Constitution and all it stands for, then they should step down.
wm13 says:
Wow, I think bathus has delineated the issues so thoroughly and so correctly that there is no need for further analysis.
July 2, 2010, 9:29 amAnderson says:
All the debate over Yoo, would he be qualified to sit on SCOTUS?
Of course not. “Respect for the rule of law” is a qualification. And his George-III understanding of executive power is risible.
Estrada was qualified AFAIK, but the Dems made a political call against him, which they were entitled to do. The Repubs could do the same with Kagan.
July 2, 2010, 9:46 amA.S. says:
Great. Republicans should vote to confirm Kagan right after Estrada is confirmed — and no earlier.
July 2, 2010, 9:46 ambailey says:
Why did the Founders make confirmation necessary if the Senate was to simply be a rubber stamp. Doesn’t make much sense.
July 2, 2010, 9:48 ambailey says:
Under the Adler/Goldsmith interpretation, if she was nice and smart but announced her intent to wipe her rear with the Constitution, she would still have to be confirmed. After all, the Pres gets who he wants.
July 2, 2010, 9:50 amKamal says:
Very nice testimony. Who wants to bet that he was called a communist on fox news after this?
July 2, 2010, 10:16 amPaul A'Barge says:
Goldsmith is wrong.
Kagan should be Bork’ed.
July 2, 2010, 10:16 amKamal says:
As Kagan said, we are all originalists. I loved that. It’s great that Scalia will, hopefully, have someone opposed to him intellectually who can claim diametrically opposed originality. Maybe she can show him the error of his ways.
July 2, 2010, 10:20 amORID says:
If Kagan is going to get confirmed there’s little point in making it a close vote, and little political capital in opposing her. I think the Republicans if unable to muster a filibuster should vote for her unanimously. So when they do put up John Yoo (he’ll be 50 in 2017) as the first Asian Supreme Court Justice the GOP will have the high ground.
I do not think John Yoo should serve on the Supreme Court, but the ground has already been laid.
July 2, 2010, 10:33 amKamal says:
There is a very large reason why republicans should and will vote against her. It’s the same reason they are voting against the needed financial reform, and unemployment benefits. Voting ‘no’ when you are certain something is going to pass is the safest vote possible. You can tell the fringe ‘look, i tried’ while simultaneously benefiting from being a sitting senator when the bills end up helping people. This is why most of the republicans were saying how bad the stimulus bill was, and voted against it while simultaneously bragging to their constituents about all the great projects and jobs that resulted from its passage.
July 2, 2010, 10:50 amSCOTUSblog » Friday round-up says:
[...] Adler at the Volokh Conspiracy commends Professor Jack Goldsmith, a witness for the Democrats, for telling the Committee yesterday [...]
July 2, 2010, 10:57 amcboldt says:
July 2, 2010, 11:11 amJMA says:
LN: racist much?
July 2, 2010, 11:14 amPersonFromPorlock says:
Getting back to Goldsmith’s statement, doesn’t it strike anyone else that this:
And this…
Are non-sequiturs? Tending to come down on the left (or right) implies a pretty limited sort of open-mindedness, regardless of the judicial techniques involved.
July 2, 2010, 11:15 amcboldt says:
Dang. Ctl-J’s in the cut-n-paste again.
July 2, 2010, 11:16 amSee Hatch’s remarks, which are directly opposed to Goldsmith’s exhortation to decide based on “nice, smart, and accomplished.”
“General Kagan is a good person, a skilled political lawyer, a brilliant scholar, and was a fine law school dean. I like her personally and I supported her to be Solicitor General. But applying the standard I have always used for judicial nominees, I cannot support her appointment to the Supreme Court.”
Kamal says:
That’s assuming that there is no ambiguity in the law. If there is, then how you analyze it is of great importance. If like many libertarians you believe that people working together is dangerous and that the people need to be ruled and controlled, then you may come down on the side of big business vs. if you believed that people working together is essential to liberty you may come down on the side of the people.
July 2, 2010, 11:23 amcboldt says:
– If like many libertarians you believe that people working together is dangerous and that the people need to be ruled and controlled … –
July 2, 2010, 11:38 amYou mean librarians, right?
PersonFromPorlock says:
As succinct a summary of the libertarian position as I’ve ever read. Wrong, and even wrong-headed, of course, but succinct.
If a law’s ambiguous I’d expect the Court to rule it unconstitutional because it’s ambiguous and kick it back to Congress for a rewrite. I do realize this is la-la land, though.
July 2, 2010, 11:44 ambailey says:
What evidence is there of open-mindedness or acute analytical skills? Did we see it during her two years of private practice? Was it when she was ginning up the ACOG standards to defend pba? With all due respect, is this the price you pay for getting on the faculty?
July 2, 2010, 11:57 amKamal says:
It’s observably correct. If you want Laissez-faire at a time when the powerful control everything, you are supporting the oppression of those born into a life without property.
July 2, 2010, 11:58 amnovaculus says:
Pardon me, but is it too much to expect that a nominee for a seat on the highest court in the land have some experience on the bench?
While I sympathize with the notion that deference should be given to a president’s nominees, that boat sailed long ago, and it was Democrats who opened Pandora’s Box with their assault on Judge Bork. The Democrat attacks on Mr. Bork led directly to the current state of affairs. The hearings are farces where nominees conceal their views, even perjure themselves, to stymie the purely partisan attacks that have taken the place of the exploration of a candidates history, qualifications, and judicial philosophy.
I agree the posturing by some Senators is grossly hypocritical. But if one side were to return to giving deference to all presidential nominees who were not obviously unqualified, and the other did not, the federal bench would soon be dominated by judges whose views paralleled the party not giving deference. I have little use for either Democrats or Republicans, but having a generally libertarian and conservative bent, I view the possibility of a federal bench dominated by liberal activist judges as disastrous for the country. Of course the Senators should drop the hypocrisy, but they cannot turn back the clock. In the absence of some understanding between the parties on this point, unlikely to say the least, restraint and deference by one party only would be foolish and destructive.
The “Borking” of nominees should cease, and there should be a return to forthright testimony and deference. But does anyone think the politicians will alter their current strategy unless they are forced to do so?
The only people who can change this dynamic are the nominees themselves. They must cease the artful dodging and speak frankly. They must ignore the potential consequences of political hackery and behave honorably themselves. They need not offer opinions on specific cases in so doing.
The politicians will do what politicians do. If the voters determine that “Borking” nominees who speak frankly is unacceptable, as I do, they will deal with the politicians who engage in this practice at the ballot box. In the meantime, let no one suggest that the desire for confirmation justifies the lack of candor and outright perjury we have seen from post-Bork nominees in confirmation hearings.
July 2, 2010, 12:10 pmMike P Wagner says:
Didn’ Goldsmith’s comments directly address this issue?
Mike
July 2, 2010, 12:14 pmLN says:
JMA: unable to figure out which comments I was replying to much?
July 2, 2010, 12:45 pmnovaculus says:
As a practicing trial attorney for many years, who has also some appellate experience and even some experience on the bench as a judge pro tempore and special judge, I disagree with Goldsmith’s assessment of Kagan’s qualifications. I find her lack of practical experience as a trial attorney and judge to be disqualifying. Furthermore, I find her disingenuous testimony most disturbing, and also disqualifying. Again, pardon me if I find honesty and forthrightness crucial elements of character in a judge.
Goldsmith makes his point, but fails to address the practical situation. He ignores the duty of the nominees themselves to rise above the partisan hackery of the politicians.
Senators should question nominees carefully and thoroughly regarding both their qualifications and their judicial philosophy. Nominees who refuse to be candid should be rejected; it is justifiably assumed that lack of candor conceals unacceptable views and a certain lack of character. Senators should not exploit hearings to justify partisan votes. Senators should give deference to the President’s nominees, so long as they are qualified and not extremist in their views, and so long as they are assured that members of the opposition will show the same deference. Absent that mutuality, however, deference is political suicide. I do not want Republicans to give deference to Democrats’ nominees if Democrats will not reciprocate, permitting Democrats to pack the judiciary with liberal activist judges. That does not mean Senators should engage in the hypocrisy that Goldsmith decries, but it does mean they should vote to deny confirmation if a nominee stonewalls, or if the nominee displays a liberal activist bent, so long as the modus operandi of the Democrats is to “Bork” nominees of Republican Presidents.
Again, only the nominees themselves can alter the current situation, unless Democrat and Republican senators suddenly grow up.
July 2, 2010, 12:47 pmSarcastro says:
I agree with most above that Goldstein is wrong – one’s judicial philosophy is an important aspect of advise and consent. But that’s what the liberals think.
Much more important is that Obama suuucks, and also revenge for Bork!
July 2, 2010, 1:03 pmDavid M. Nieporent says:
Nobody is born without property.
July 2, 2010, 1:31 pmgladetariba says:
Am i wrong or Kagan hired Goldsmith at Harvard?
July 2, 2010, 1:46 pmbut:the herarings mean nothing
Farnkfurter was a socialist that became conservative in the bench
Souter was nominated by Bush
And Stevens was nominated by Gerlad Ford. Of course like Nixon he was a liberal in social and economics matters. Price control, draft elimination , reverse tax but did he know he will be the most left leaning justice?
PlugInMonster says:
The Democrats have run amok. The American people have noticed and will make corrective measures.
July 2, 2010, 2:08 pmSarcastro says:
Note: such overheated yapping also works when the parties are reversed.
July 2, 2010, 2:21 pmcboldt says:
– such overheated yapping also works when the parties are reversed. –
July 2, 2010, 2:29 pm“The American people have run amok. The Democrats have noticed and will make corrective measures.”
Sarcastro says:
[Okay, cboldt, that was right awesomesauce there.]
July 2, 2010, 2:57 pmBC says:
Of course. I mean, we can all observe how those nefarious libertarians oppressed Dick Heller and Otis McDonald. Thank goodness they were stopped before they could oppress Angel Raich and Susette Kelo, too.
July 2, 2010, 2:57 pmCJColucci says:
Goldsmith is wrong.
Kagan should be Bork’ed.
Nothing is stopping them, certainly not a sense of decency or fairness. They’re not doing it because it wouldn’t work.
July 2, 2010, 3:39 pmPMS_CC says:
Is Scalia a conservative?
July 2, 2010, 4:16 pmIn Plain Sight says:
RAAAAAACIST!!!!!!
July 2, 2010, 4:27 pmleo marvin says:
Look, the Left has our own extremists, just like the Right’s in this thread. So be assured that in the battle of partisan nutjobs doing everything in their power to drive moderates to the other side, I’m on your side. Anything I can do to help, just ask.
July 2, 2010, 4:46 pmJim Rhoads says:
One problem with analyses like this is their utopianism. Flash to Goldsmith: the confirmation process is designed to be political. That is why the Founding Fathers left it to professionally partisan politicians to have the final say.
July 2, 2010, 5:48 pmJoe says:
is it too much to expect that a nominee for a seat on the highest court in the land have some experience on the bench
yes. I think Frankfurter, Douglas, Powell, Rehnquist, J. Marshall and Story ALL were soooo unqualified.
They didn’t all have much experience as trial attorneys either. I don’t know if 20 years in some specialized field would trump time as a law professor covering many more + serving in government. Examples can be shown there too.
The repeated bit of the senators having Kagan show the love for Estrada — Graham even asked her to write a letter (another one, I guess — she did already) supporting him — was amusing. They were even 1L seat buddies!
Over the years, there were various factors involved in nominating judges. Given the fact the confirmation process is put in the hands of political actors, I don’t know why politics should presumptively never be a deciding factor. Sure, it is best if it doesn’t dominate, but sometimes — including a few among loads of lower court nominations — it does.
There is a good case (I won’t say convincing; I’ll just say reasonable) that Bush was more partisan than many other presidents in respect to his nomination of judges. At times, even certain Republican senators were upset about it. Given this, and other political concerns, the Dems played hardball in various cases. Just as the Republicans did under Clinton. Some Estrada can be found there too. And, Estrada was a nominee with a lot of political baggage to him. That was his downfall. Meanwhile, Kagan has a reputation as a consensus builder. Maybe Estrada did too — I didn’t see much of it. Did Estrada, like Kagan, go out of his way to support controversial Clinton judicial nominees, for instance? Kagan is also someone some on the left think not liberal enough. I realize some here think anyone left of Roberts is too left, but that’s the test now. Estrada again as I recall was not deemed as pragmatic. He was a conservative favorite.
If Dems left and right treated judicial nominees like Estrada, I would be concerned. But, those held up tended to be dubious sorts in no way as qualified as Estrada. Some states keep nominations out of the political arena. The feds do not. Estradas will occur — it’s the nature of the system, and apparently (as Scalia has said when partisan moves were deemed unfair in other contexts) was deemed a good thing in some fashion.
July 2, 2010, 5:49 pmJim Rhoads says:
Don’t forget one of my favorites, Robert Jackson. I don’t think Hugo Black had been a judge either.
July 2, 2010, 5:57 pmAnderson says:
Nobody is born without property.
You have got to be kidding me.
July 2, 2010, 6:03 pmAnderson says:
I find her lack of practical experience as a trial attorney and judge to be disqualifying.
*You* find? Well all right then. It’s settled.
… What trial-attorney experience do the present justices have? Scalia ever try a case?
July 2, 2010, 6:05 pmbailey says:
So the great conservative Kagan backers consisted of an old law school buddy and someone she hired?
July 2, 2010, 8:20 pmJoe says:
So the great conservative Kagan backers consisted of an old law school buddy and someone she hired?
ex-Solicitor General Gregory Garre … where does he fit? How about: Theodore Olson, Kenneth Starr and Charles Fried? Did she hire or sit with all of them? Or, are they not “great” or “conservative”?
If being a buddy was enough for Estrada to recommend Kagan, I also wonder how greatly qualified he was to the bench. But, anyways …
July 2, 2010, 10:47 pmJohn Herbison says:
Does anyone else think that AngerMouse really needs to get laid?
If he/she/it doesn’t know how, just ask Senator David (Diapers) Vitter.
July 3, 2010, 1:23 amPhilC says:
No they didn’t. The founding fathers abhorred partisanship. This is the problem, people think they know the founders, when it’s really just a cover for their own opinion.
July 3, 2010, 5:14 amDavid M. Nieporent says:
Do I have to be? Is that part of customary international law?
Everyone owns themselves.
July 3, 2010, 5:22 amJohn Herbison says:
Is that so? I learned in the second semester of law school that property is the bundle of rights, in regard to a res, which the law will enforce.
One cannot lawfully sell his component parts (except blood, hair and semen). Outside of parts of Nevada, he cannot rent space to occupants. A minor cannot lawfully even admit invited guests.
July 3, 2010, 5:45 amJoe says:
he cannot rent space to occupants.
aren’t people renting ad space these days?
July 3, 2010, 11:17 amPersonFromPorlock says:
Good points, but confusing malum prohibitum with malum in se.
July 3, 2010, 11:41 amOwen says:
For a law professor, Goldsmith does not make much of an argument. All he really does is state his position: the President’s decision about a judicial nominee “warrants deference from the Senate.” He never offers even one reason why such deference is warranted.
The Constitution’s allocation to the Senate of the power to approve or disapprove a nominee is one of the fundamental checks and balances intended to limit the power of each branch of government. For that fundamental allocation to effectively check and balance the President’s power to nominate a potential judge, Senators need to feel free to oppose a nominee solely for policy reasons.
Until Andrew Jackson vetoed the extension of the Second National Bank, Presidents apparently thought the veto power should be used only when they thought legislation was unconstitutional. Such a position generally neutered the veto power as an effective check and balance on the power of the legislature. As we have seen since Jackson’s veto, the Constitution’s system of checks and balances works best when tradition imposes no artificial limitations on a branch of government’s use of the checks and balances specified in the Constitution.
Obama should feel free to nominate a left-wing ideologue to the Supreme Court; but Senators should feel just as free (and in fact they should feel obligated) to oppose the nomination if they believe the nominee’s left-wing ideology is not in the best interests of America. That is what checks and balances should be all about.
July 3, 2010, 12:19 pmIndpendent Observer says:
I’m sorry to say, Adler and Goldsmith have missed the problem. The problem is that the courts have become as powerful a direct influence on American life as the legislature and so have become instruments of politics as well as law.
Consequently selection of judges is now an issue of extreme political importance, determining the future of both political parties as well as the future of American society. The left and right thus have no choice but to engage the battle which has shifted substantially from the ballot box to the courts.
July 3, 2010, 3:26 pmSuperSkeptic says:
Some abhorred it, on principle, sure; but most participated in it nevertheless – just like us!
July 3, 2010, 3:41 pmnovaculus says:
@ Joe- Pardon me for thinking that directly related on-the-job experience, and perhaps some record of accomplishment on the job, should be an important factor in determining a nominee’s qualifications. Pardon me for finding such experience particularly crucial where the nominee has virtually no record of accomplishments such as a portfolio of respected scholarly works in a related field. I don’t deny that some nominees have done well without judicial experience. (I also note that if one continually throws darts blindfolded, a few bulls-eyes will be scored by accident.) What qualifications has Kagan displayed that might take the place of directly related experience? Had she been more forthcoming during the confirmation hearings she might have allayed fears regarding her lack of relevant experience, but she chose to play games rather than establish her bona fides. There are many people, vastly more qualified than Kagan in terms of experience and accomplishments, who would not be the equivalent of a pig-in-a poke.
Kagan’s nomination, and her lack of candor before the committee, exemplifies the utterly cynical political calculus that now dominates the selection process.
@ Anderson- Is it your position that practical legal experience is irrelevant when considering a nominee to a seat on the bench of the Supreme Court? Have you something besides snark to add to the discussion? Rest assured I will show all due respect and deference to your opinions.
How many of those commenting here have actually: 1) Tried a case as an attorney? 2) Prosecuted an appeal as an attorney? 3) Prosecuted or defended an appeal? 4) Sat as judge for a trial? 4) Heard a case as a judge on appeal?
There are aspects of the judicial art that are extremely difficult (if not impossible) to even appreciate, let alone master, without hands-on experience. I am unsurprised to find that many in academia believe a life in academia and politics fully qualifies one to take on the duties and responsibilities of a Justice on the Supreme Court. In Kagan’s case, the academic accomplishments as skimpy as her practical legal experience and reflect no special talent. Her political accomplishments largely involve ingratiating herself to the powerful in order to benefit from their largesse. Hardly impressive. Similar thinking led in no small part to the selection of our current president, and the results to date are instructive.
One may learn a great deal about carpentry by reading and writing about it. That learning does not make one a good carpenter.
If confirmed, Kagan may become a great jurist, but there is little in her record to suggest that she will be anything other than a reliable vote on the liberal side and the author of polemical drivel. The country deserves better.
July 4, 2010, 10:28 am