Archive | Kagan Nomination

Kagan, ACOG and the Partial-Birth Abortion Ban

Was “language purporting to be the judgment of an independent body of medical experts devoted to the care and treatment of pregnant women and their children” actually “nothing more than the political scrawling” of then Clinton White House staffer Elena Kagan?  That’s the charge made by former deputy Assistant Attorney General Shannen Coffin in this NRO essay.  Specifically, Coffin charges that recently released documents show that Kagan suggested the insertion of language into a statement on “partial-birth abortion” issued by the American College of Obstetricians and Gynecologists (ACOG) to help justify the Clinton Administration’s opposition to a federal ban.  This language was relied upon by the Supreme Court in striking down Nebraska’s PBA ban in Stenberg v. Carhart and highlighted by those seeking to challenge the federal PBA ban once it was adopted.

According to Coffin, Kagan worked to alter the ACOG statement’s language so that it would provide stronger cover for opposing a federal PBA ban.

Kagan’s language was copied verbatim by the ACOG executive board into its final statement, where it then became one of the greatest evidentiary hurdles faced by Justice Department lawyers (of whom I was one) in defending the federal ban. (Kagan’s role was never disclosed to the courts.) The judicial battles that followed led to two Supreme Court opinions, several trials, and countless felled trees. Now we learn that language purporting to be the judgment of an independent body of medical experts devoted to the care and treatment of pregnant women and their children was, in the end, nothing more than the political scrawling of a White House appointee.s:

Her notes, produced by the White House to the Senate Judiciary Committee, show that she herself drafted the critical language hedging ACOG’s position. On a document [PDF] captioned “Suggested Options” — which she apparently

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The Sotomayor switcheroo, and the Kagan nomination

Justice Sonia Sotomayor, by joining the Breyer dissent in McDonald which called for Heller to be over-ruled, contradicted what she had told the Senate last summer. I supply the details in an op-ed for the Washington Times.

On Thursday (or perhaps, early on Friday), I will be testifying on the Kagan nomination. My written testimony will be posted by Wednesday morning, on my website.

Justice Sotomayor’s disappointing performance highlights the importance for Senators who care about Second Amendment rights learning more about Ms. Kagan’s actual views, and not settling for vapid platitudes about “settled law.” [...]

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Early Reactions to the Kagan Hearings

I’ve contributed some initial reactions to the Washington Post‘s online “Topic A” feature on the Kagan nomination hearings.  The general thrust of my remarks is that the Kagan hearings, thus far, are much like what we’ve come to expect in that she’s dutifully avoided revealing much about her personal legal views, despite her 1995 essay urging greater candor by nominees and more searching interrogation by Senators.  I also note that Kagan, much like Sotomayor, has refused to defend a “progressive” constitutional vision, whether that articulated by the President or her onetime-mentor Justice Thurgood Marshall.

One of the other contributors to the feature, Walter Dellinger, has a contrary view. I suspect part of our difference comes from the fact that Kagan has not offered the stilted, almost scripted, responses to questions about judicial philosophy that made her sound like a John Roberts wannabe (and demoralized some liberal legal thinkers).  Kagan has spoken more broadly about the judicial role, but without saying much that could be used to pin her down on her views of constitutional interpretation, let alone specific issues or cases.  She’s also proclaimed that “we are all originalists” and that empathy should not play much of a role in judicial decision-making because “it’s law all the way down.”

The most interesting parts of the hearings to me thus far — and it’s still early — have been the exchanges discussing Citizens United and other cases she’s handled as Solicitor General.  Here Kagan sought to discuss her decisions in these cases without revealing too much about how she might view similar cases that might come before the Court.  I’ve found these exchanges more interesting than those on, say, her handling of the military at Harvard or her various White House memos.

[NOTE: This post was slightly edited as [...]

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Sen. Franken’s Bad Environmental History

Senator Franken used his opening statement at the Senate Judiciary Committee’s confirmation hearing for Elena Kagan to argue that the current Supreme Court is an activist, pro-business court.  I’ve addressed such allegations before (see, e.g.,  here, here, and here), and won’t do so here.  What I found interesting was his attempt to argue that if the Court’s recent ruling in Citizens United had been decided decades earlier, key environmental and consumer protection laws would never have been enacted because major corporations would have spent millions to defeat those politicians who sought to enact such laws. This is a debatable claim in general, but is clearly wrong with regard to one of Senator Franken’s chosen examples.

In his opening statement, Senator Franken asked:  “Do you think those laws would have stood a chance if Standard Oil and GM could have spent millions of dollars advertising against vulnerable congressmen, by name, in the last months before their elections?” Even assuming that major corporations would be willing to risk consumer backlash by entering partisan political contests so directly, this example fails.  The federal Clean Air Act, and in particular the provisions imposing nationwide emission controls on new motor vehicles, were not opposed by the major automakers.  To the contrary, the major automakers were the primary backers of federal motor vehicle emission controls, as they sought to preempt more stringent (and potentially variable) state standards. Absent automaker support, it’s questionable whether limitations on automotive emissions would ever have passed at all.

So, to answer Senator Franken’s question: Yes. The Clean Air Act would have “stood a chance” even if GM could have spent millions of dollars on political advertising, because GM would have spent millions of dollars in support of legislators who supported federal air pollution controls.

If Senator Franken wants [...]

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“Vapid and Hollow” or Substantive and Illuminating?

In today’s NYT, Adam Liptak reports on a new study by political scientists Lori Ringhand and Paul Collins Jr. analyzing the questions asked at Supreme Court confirmation hearings over the past 70 years.

a new study, based on an analysis of every question asked and every answer given at Supreme Court confirmation hearings in the last 70 years, shows that the hearings often address real substance, illuminate the spirit of their times and change with shifts in partisan alignments and the demographic characteristics of nominees.The study also refutes the common mistaken belief that questions about abortion rights have played a dominant role in confirmation hearings since Roe v. Wade was decided in 1973. And it finds that female and minority nominees are questioned more closely than white male ones.

This is quite a different view than Elena Kagan espoused in 1995.  In her article, “Confirmation Messes, Old and New,” 62 U. Chi. L. Rev. 919 (1995), she characterized most confirmation hearings as a “vapid and hollow charade.”  She viewed the Bork hearings as uncharacteristcally substantive, and urged Senators to demand nominees follow that example going forward.  Ringhand and Collins, on the other hand, view the Bork hearing as less than an outlier, at least based upon the questioning he received.

What does this mean for the Kagan hearings, which start today?  From Liptak:

It is possible to make some predictions about the questions Ms. Kagan will face based on the study’s data, which track trends from the first unrestricted Supreme Court confirmation hearing, of Felix Frankfurter in 1939, through the latest one, of Sonia Sotomayor last summer.

“Kagan’s hearings are probably going to be dominated by civil rights issues and the Second Amendment,” said Paul M. Collins Jr., an assistant professor of political science at the University of

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Are Civil Rights Groups Skeptical of Kagan?

Today’s Washington Post reports that some civil rights organizations are still trying to determine whether (or how enthusiastically) to support Elena Kagan’s nomination to the Supreme Court.  It begins:

On the eve of Elena Kagan’s Senate confirmation hearings, her record on race in the Clinton White House and at Harvard Law School is producing discomfort among some leading civil rights organizations, leaving them struggling to decide whether they want her to join the Supreme Court.

Their reservations have introduced the first substantive division among liberals in what has otherwise been a low-key partisan debate over Kagan’s merits to replace Justice John Paul Stevens. . . .

The National Bar Association, the main organization of black lawyers, has refrained from endorsing Kagan, giving her a lukewarm rating. The group’s president, Mavis T. Thompson, said it “had some qualms” about Kagan’s statements on crack-cocaine sentencing and what it regards as her inadequate emphasis while dean at Harvard Law School on diversifying the school along racial and ethnic lines. Others have expressed reservations about Kagan’s views on affirmative action, racial profiling and immigration.

Several liberal groups that are stalwarts on civil rights matters have uncharacteristically hung back, trying to persuade Democratic senators to press her on such issues during the hearings set to begin Monday. Some, including the Mexican American Legal Defense and Educational Fund, say they are still trying to glean her beliefs from fragmentary evidence. Others have parsed Kagan’s public statements and actions and said they are uneasy.

Among other things, the story reports that some groups are put off by documents released from Kagan’s time in the Clinton Administration that reveal her disagreements with Christopher Edley on racial matters, such as whether Clinton’s race initiative should have included a ban on racial profiling. [...]

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Conservative Law Professor (and Former Tenth Circuit Judge) Michael McConnell Writes in Support of Elena Kagan’s Nomination

The letter is here. Among other things, McConnell argues in some detail that conservatives will likely be pretty happy about Elena Kagan on the freedom of religious and political speech, on free exercise of religion, and on the participation of religious institutions in generally available funding programs. (McConnell is on the pro-Sherbert/Yoder wing of the conservative movement when it comes to free exercise, rather than Justice Scalia’s pro-Employment-Division-v.-Smith wing; but I suspect that these days many conservatives are with McConnell on this.) He also criticizes her position on military recruiters at Harvard, but praises her willingness to push the Harvard faculty to hire conservatives and not just liberals.

My sense is that McConnell is very highly regarded among conservatives, and especially social conservatives. (He’s also very highly regarded by me, but that’s not particularly relevant here.) His praise for Kagan thus seems to me to be especially significant. [...]

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Kagan, Stevens and Brennan on Bork

Elena Kagan may have thought (in 1997) that the Bork confirmation hearings were “the best thing that happened, ever happened, to constitutional democracy,” and welcomed the defeat of his confirmation.  The Justice she would replace, Justice John Paul Stevens, appears to have had a different view.  As legal journalist Seth Stern notes, after Bork was nominated, Justice Stevens said he was “very well-qualified” and predicted that Bork would be “a very welcome addition to the court.”  Stern, who is co-authoring a book on Justice William Brennan, reports further:

as the criticism intensified, one of Stevens’ fellow justices, William J. Brennan Jr., privately began to harbor his own deep misgivings about the way Bork was being treated.Brennan, then 81, had emerged as the court’s most influential liberal in the 31 years since President Eisenhower appointed him in 1956. He knew better than anyone how much was at stake. Bork would almost certainly have reinforced the bloc of conservative justices intent on rolling back the rights revolution Brennan helped engineer under Chief Justice Earl Warren.

Nevertheless, Brennan came to believe “all the hype, the advertisements, and the television shots” against Bork had gone too far and questioned whether senators “should be parties to something like that.”

“I think they rather demean the process and give it the appearance of an ordinary ward fight in Chicago,” Brennan confided to his biographer, Stephen Wermiel, in a private conversation in his chambers on October 28, 1987, the details of which has not been revealed until now. Five days earlier, the Senate had rejected Bork by a 58 to 42 margin.

Like Stevens, Brennan thought all the dire warnings about Bork had been overblown. “I’d have been not at all unhappy to have him as a colleague,” Brennan said at the time. “I’d just have

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Kagan Memo on Religious Freedom

The New York Times reports that,

[Kagan, as a White House lawyer during the Clinton Administration,] recommended that the federal government intervene in a case to support religious freedom. The California Supreme Court ruled that a landlord violated a state law prohibiting housing discrimination by refusing to rent an apartment to an unwed couple because she considered sex outside marriage to be a sin.

Ms. Kagan scorned the California justices’ rationale that the landlord’s religious freedom was not burdened because she could get another job. “The plurality’s reasoning seem to me quite outrageous — almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state,” Ms. Kagan wrote.

Prof. Chris Lund found the memo itself, and I uploaded it; the California Supreme Court opinions are here, and a brief explanation of the history of the Religious Freedom Restoration Act is here. (Note that the memo was written before the Supreme Court held that RFRA exceeded Congressional power when applied to the states.)

For whatever it’s worth, I agree with the memo. But note that the memo doesn’t reveal Kagan’s views on the bottom line question, which turns on “whether the state has a compelling interest in application of its anti-discrimination provision, which would justify imposing a substantial burden on Smith’s religious practice.” [...]

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Judicial Law Clerks’ Memos to Their Bosses

The AP reports:

Two senior Republican senators criticized Supreme Court nominee Elena Kagan Thursday for memos she wrote as a young law clerk to Justice Thurgood Marshall, saying the papers suggest she lets politics dictate her legal decisions.

Sen. Jon Kyl of Arizona and Jeff Sessions of Alabama said the writings show that Kagan was highly opinionated and wanted to use the law to achieve specific policy results, rather than deciding legal questions on their merits….

The two senators cited notes Kagan wrote to Marshall in which she argued that the Supreme Court shouldn’t take certain cases based on her fear that they would give its conservative majority the chance to scale back abortion and criminal rights, among others….

“They reveal time and time again an effort to reach a certain result in the case,” [Sen. Kyl] said. “There’s a disturbing pattern that evolves here when you read these that suggests that she is more interested in taking a case or not taking it based upon how they can advance the law to suit themselves or play defense against a court that she thinks might make bad law.” …

I thought this might be a good occasion to talk briefly about the Court’s decisionmaking about petitions for certiorari, a subject that many people haven’t closely focused on. Recall that these were memos from Kagan to her boss, Justice Marshall, in which she was advising him whether he should vote to have the Court grant certiorari (i.e., to have the Court hear the case) or deny certiorari (i.e., to let the lower court decision stand without an opinion by the Court on the merits).

1. Now the grant or denial of certiorari is a discretionary decision on the Court’s part. That’s the point of petitions for certiorari (as opposed to the [...]

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Kagan’s Clinton Administration Memos

The NYT reports on some of the memoranda from the Clinton White House written be Elena Kagan that were released this past week.

A new cache of documents from Elena Kagan’s days as an adviser to President Bill Clinton shows that she frequently scribbled notes in the margins of memorandums yet rarely expressed forceful views. But on at least one question that came before the Clinton White House — whether to make assisted suicide a federal crime — Ms. Kagan was adamant.

“I think this is a fairly terrible idea,” she wrote in January 1998.

Ms. Kagan’s missives in the margins offer little hint of how she might behave if confirmed to the Supreme Court. But the 46,700 pages released Friday by the National Archives do offer glimpses into her thinking, revealing a woman who, like the president she worked for, was trying to balance competing policy objectives and chart a centrist course on matters as varied as abortion, race relations, immigration, AIDS, gun rights and embryonic stem cell research.

She endorsed a legal strategy aimed at avoiding a sweeping Supreme Court ruling against affirmative action. She urged the Department of Health and Human Services to be more candid about the lack of scientific evidence for medical marijuana. She expressed skepticism about a drive to bar schools from tracking students by ability. She cautioned against imposing tough marketing restrictions on the tobacco industry — a hint of her background as a First Amendment scholar.

“I’m not sure I buy the argument re speech restrictions,” Ms. Kagan wrote.

These are some of the highlights of the first batch of Clinton White House memos to be released.   Much more are on the way.  The NYT also reports that 263 pages of material will be withheld from the [...]

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