Linda Greenhouse has an interesting column on then-Supreme Court clerk Elena Kagan’s cert memo for Justice Thurgood Marshall on whether to accept cert in DeShaney v. Winnebago County Social Services Department.
UPDATE: I’m reminded that the WSJ‘s Jess Bravin has an earlier report on Kagan’s involvement with DeShaney in May.
This Washington Post story on the newly released batch of memos from Elena Kagan’s tenure in the Clinton Administration includes an interesting tidbit: Kagan sought, unsuccessfully, to get nominated to head the Office of Legal Counsel.
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.”
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 comparatively rare appeals, which the Court has to consider on the merits but which can only be filed in a limited class of cases). Justices have no obligation to grant or deny any particular case, and there is no legal rule that they are supposed to follow in deciding whether to grant or deny it. Rather, they tend to decide based on whether they think the Court’s agreeing to hear the case would help clarify or improve the law.
This may sound unusual or wrong to people who are used to seeing judges deal with cases that they have a legal obligation to rule on, either at trial or at appeal. But that’s the way the Court’s certiorari jurisdiction is intended to work. (It’s also the way that a similar process works at many state supreme courts.)
The decision to grant certiorari may in part be unrelated to a judgment about what the law ought to be: For instance, the Justices may agree to hear a case because there is disagreement among lower courts, and because it would be good to create a consistent rule, whatever that rule might be.
But one factor in any Justice’s decision about whether granting cert would improve the law could be a judgment about whether, if the Court agrees to hear the case, the Court will reach a result that the Justice thinks is right. So I suspect that Justice Scalia and Justice Thomas would feel no qualms about voting to deny certiorari in an abortion case based partly on the judgment that their colleagues would use the case (if certiorari was granted) to broaden abortion rights. Justices Scalia and Thomas have concluded that the Court’s decisions recognizing abortion rights are mistaken. And they have no obligation to ignore that conclusion in deciding whether to give the Court another opportunity to broaden its mistake.
Likewise, Justice Brennan or Justice Marshall concluded, rightly or wrongly, that the Constitution should be read as securing fairly broad abortion rights. I see no reason why they should have felt any qualms about voting to deny certiorari in an abortion case based partly on the judgment that their colleagues would use the case to erroneously (in Justices Brennan and Marshall’s view) restrict abortion rights.
2. And of course Kagan was a lawyer working for Justice Marshall. Justice Marshall’s job was to decide whether to grant certiorari based on whether the Court’s decision was likely to clarify or improve the law. Her job was to give Justice Marshall advice based on whether the Court’s decision was likely to clarify or improve the law from Justice Marshall’s perspective. If Justice Marshall had been in the so-called “cert pool,” a group of Justices whose clerks split up the petitions among themselves and then write recommendations to all the Justices in the group, then she would have been obligated to ignore factors that were only relevant to her boss. But Marshall wasn’t in the cert pool; these memos were solely for his benefit.
A Justice will often want to hear his clerk’s own views as well, especially if he chose the clerk thinking that the clerk’s judgment is likely to match his own. A Justice will also often expect some amount of personal commentary by the clerk just because exchanges in a close working relationship will often involve such commentary. But good clerks know that their job is to help their boss; this means that when they mention their own views without any qualifiers, this is either because their boss will likely share the same views or because the relationship allows some amount of such personal chatter as asides to the business at hand.
Given this, it seems to me that Kagan’s memos show her doing what she was supposed to do: evaluating whether the Court was likely to move the law in the direction that Justice Marshall thought was proper. (I believe two of the memos to which the Senators are referring, by the way, are this one and this one.)
3. This of course still leaves the criticism that Justice Marshall’s judgments on the merits were improper — part of an “effort to make law rather than decide law” — and that Kagan’s memos suggest that she was sympathetic to the effort, and would likely do the same herself. That’s an old debate, and I can’t add much to it here.
In this post, I just wanted to explain why the memos’ focus on the other Justices’ likely votes on the merits, odd as it may seem to some, is itself quite sensible. Even a Justice that was a thoroughgoing originalist or textualist or anything else that Sens. Sessions and Kyl might prefer would want to take his colleagues’ likely votes on the merits into account in deciding whether to grant certiorari. And such a Justice would therefore want a law clerk who would take the colleagues’ likely votes into account when making recommendations.
4. Finally, Sens. Sessions and Kyl reportedly “highlighted a memo in which Kagan says she’s ‘shocked’ by a government sting operation to catch a child pornographer that involved a Postal Service newsletter called ‘Love Land’ including ads offering sexually oriented material. Sessions said the language suggests ‘a rather personal view, not the dispassionate legal view that you would expect from a law clerk.’”
I don’t think that’s right: A law clerk working for his Justice has no obligation to be “dispassionate” in a casual exchange, any more than Sen. Sessions’ legal aides have such an obligation in casual exchanges with him about proposed legislation (or for that matter about a judicial nominee). And while it’s pretty clear that the decision whether to grant certiorari shouldn’t be made based on a clerk’s “personal view,” it’s equally clear that Justice Marshall doesn’t much care whether his clerk was shocked by something: He would decide based on his views, personal or otherwise, not based on hers.
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 public due to “statutory restrictions,” but that Senators will be allowed “to review them on a confidential basis.”
Jan Crawford reports that Senator Jeff Sessions, ranking Republican on the Senate Judiciary Committee, has said some of the memos Elena Kagan wrote as a clerk for Justice Thurgood Marshall are “troubling” and warrant greater scrutiny. Also today, the Clinton Presidential Library has begun to release documents from Kagan’s time in the Clinton White House. CNN reports here.
Meanwhile, Gallup finds that support for confirmation of Elena Kagan to the Supreme Court trails that of prior nominees (other than Harriett Miers). I am not quite sure what to make of these findings, but they are interesting. Among the potential (non-mutually exclusive) explanations are a) her lack of prior judicial experience, b) her lack of a compelling personal story, c) the controversy over military recruitment at Harvard, d) the President’s declining popularity/approval ratings, e) lack of enthusiasm for her from the Left, f) concern that she would rubber stamp increasing federal power, g) displacement of nomination coverage by other events (e.g. the oil spill, etc.).
Jan Crawford reports on memos Elena Kagan wrote for Justice Thurgood Marshall during her clerkship that appear to reveal that she is quite liberal on social issues. This is not particularly surprising, but it is interesting. Here’s a taste of her report:
On abortion, Kagan wrote a memo in a case involving a prisoner who wanted the state to pay for her to have the procedure. Kagan expressed concern to Marshall that the conservative-leaning Court would use the case to rule against the woman–and possibly undo precedents protecting a woman’s right to abortion.
“This case is likely to become the vehicle that this court uses to create some very bad law on abortion and/or prisoners’ rights,” she wrote in the 1988 memo.
She also expressed strong liberal views in a desegregation case. Summarizing a challenge to a voluntary school desegregation program, Kagan called the program “amazingly sensible.” She told Marshall that state court decisions that upheld the plan recognized the “good sense and fair-mindedness” of local efforts.
“Let’s hope this Court takes note of the same,” she wrote in the 1987 memo. Just three years ago, the Supreme Court struck down a nearly identical plan. . . .
Taken together, these documents are certain to provoke considerably more questions than the less controversial papers unearthed before her confirmation hearings for solicitor general.
In a case involving prisoners’ rights, for example, Kagan criticized a 1984 Supreme Court decision–Strickland v. Washington - which set tough new standards for convicted criminals to argue they were denied effective assistance of counsel. Marshall and another liberal icon, Justice William Brennan, were the only dissenters in that case, written by Justice Sandra Day O’Connor.
“I’d like to reverse Strickland too,” Kagan wrote in her memo to Marshall three years later, “but something tells me this court won’t buy the idea.”
UPDATE: Copies of the memos in question are available on SCOTUSReport.com here.
SECOND UPDATE: The NYT also reports on the Marshall memos here.
The Senate Judiciary Committee is waiting for the Clinton Presidential Library to release of over 100,000 of pages from Elena Kagan’s time in the Clinton White House. According to the AP, the documents will be released “in waves,” and some could be released to the public at the end of this week. The AP also reports that President Obama has yet to assert executive privilege with regard to any of the documents, nor has former President Clinton sought to withhold any materials.
Although few documents are likely to be withheld, that does not mean there will be all that much of interest. Bush White House veteran Tevi Troy, who like Kagan was deputy director of the Domestic Policy Council, doubts the document dump will create many issues for Kagan. Efforts to turn DPC memos into political issues, on the other hand, could further discourage future White House aides from writing (or typing) their own views on controversial issues.
The Chicago Tribune reports on the University of Chicago’s refusal to rehire Elena Kagan as a tenured member of its law faculty after her stint in the Clinton White House.
“She’s just not a natural academic, period,” said Richard A. Epstein, a prominent libertarian and longtime professor at the University of Chicago. “She is a natural lawyer, and a facilitator, and a dean.”
“She turned out to be truly great at what she did,” said David Strauss, a U. of C. law professor and one of Kagan’s closest friends on the faculty. If things had gone as she’d planned at the time, he said, “maybe she wouldn’t be where she is now.” . . .
When Kagan decided it was time to return to the U. of C., several faculty members weren’t convinced that she was devoted to academia and planned to spend her career there, recalled Geoffrey Stone, who was provost of the university at the time and who supported her reappointment.
There was no vote to reject her, but there was no offer, either. . . .
In retrospect, Stone believes it was “admirable” what the Chicago faculty did, keeping its focus on scholarship even though it was clear Kagan would probably end up in the corridors of power one day.
“The amazing part is her resilience,” said Stone. “I don’t think this story is about failure. I think it’s about finding one’s niche.”
Justice Antonin Scalia does not think Solicitor General Elena Kagan’s lack of judicial experience should disqualify her from the Supreme Court. ABC News reports:
When I first came to the Supreme Court, three of my colleagues had never been a federal judge,” said Scalia who joined the Court in 1986 after being nominated by President Reagan. “William Rehnquist came to the Bench from the Office of Legal Counsel. Byron White was Deputy Attorney General. And Lewis Powell who was a private lawyer in Richmond and had been president of the American Bar Association.”“Currently, there is nobody on the Court who has not served as a judge –indeed, as a federal judge — all nine of us,” he continued. “. . . I am happy to see that this latest nominee is not a federal judge – and not a judge at all.”
I think Justice Scalia is absolutely correct that prior judicial experience should not be a requirement for confirmation to the Supreme Court, but I still believe it is a plus. The bigger problem, in my opinion, is the relative lack of other legal experience among the justices. Other than Justice Sotomayor, none of the justices on the court has much trial-level legal experience, judicial or otherwise, as opposed to appellate. None of the justices have significant experience as defense attorneys or in transactional work. The Court is also dominated by former executive branch officials and northeastern elites.
Is Kagan qualified to sit on the Court? I think so. The strongest experience-related argument against Kagan is that she has relatively little real legal experience of any kind, not simply that she lacks judicial experience. Other than a very brief stint at Williams & Connolly, her entire professional career prior to 2009 consisted of teaching, deaning, clerking, and working in the White House. Her scholarly work is also focused on a relatively small range of issues with little relevance for much of the Court’s docket. Don’t get me wrong, administrative law and the First Amendment are very important, but the bread-and-butter of the Court’s docket is more mundane, and is not the sort of thing with which she has much experience. But much the same could have been said of many others who have served honorably and effectively on the Court. So in the end, while I understand the criticism of her record, I think it is misplaced. By all accounts, Kagan has a sharp legal mind, and her academic work is quite strong (much stronger than some of her critics suggest). Like Justice Scalia, I think she will bring valuable experience to the Court, even if I expect to disagree with her much of the time.
The Supreme Court’s 5-4 decision to hold unconstitutional sentences of life-without-parole for juvenile offenders convicted of non-homicide crimes did more than invalidate a few outlying state sentencing provisions. According to Justice Kennedy’s majority opinion, “Thirty-seven States as well as the District of Columbia permit sentences of life without parole for a juvenile nonhomicide offender in some circumstances.” In addition, “Federal law also allows for the possibility of life without parole for offenders as young as 13.”
Given that federal law was at stake, one might have thought the Solicitor General would have intervened or at least filed an amicus brief detailing the federal interest in the outcome of the case. Yet no such brief was filed. Why is that? Barring the occasional lapse, it was my understanding that the SG’s office typically files a brief whenever the outcome of a case is likely to have a direct bearing on federal law, as was clearly the case in Graham. This is because one obligation of the office is to defend properly enacted federal laws from constitutional challenge. Yet in Graham, federal law was invalidated with so much of a peep from the SG’s office.
Did SG Kagan decide not to file a brief because she believed the federal interest was inconsequential? Did she decide not to defend a federal law with which she disagreed? Or was there some other reason for the SG’s failure to participate in this case. Perhaps she was prepared to file a brief but was overruled from above, or perhaps the failure to file a brief was an oversight. I expect Senators will ask SG Kagan about this at her confirmation hearings.
My post quoting the Miguel Estrada letter in support of the Elena Kagan nomination led some commenters to disagree: Conservatives should play hardball against the Kagan nomination, they argued, and not be duped by misguided appeals to deference to Presidential choices, or by praise for Kagan’s intellect or temperament or other nonideological credentials. (Jim Prevor, writing in the Weekly Standard, seems to suggest a similar approach, but comes out somewhat differently in the end; I’m not sure that what I have to say here squarely responds to him.)
But while political hardball may sometimes be fair — much depends on exactly what sort of hardball is contemplated — there’s a separate question: Is it likely to work, in the sense of accomplishing the hardballers’ goals? And it seems to me that any serious conservative campaign to try to block Kagan is unlikely to work. Instead, conservatives should use the nomination hearings as a platform for doing something much more productive.
Continue reading ‘Attempts to Defeat the Kagan Nomination, and Political Hardball’ »
Vanderbilt lawprof James Ely – a leading expert on constitutional property rights – has an interesting column on the relevance of property rights to the current Supreme Court nomination:
In seeking a replacement for retiring Supreme Court Justice John Paul Stevens, President Obama indicated that he wanted to name someone in the Stevens mold. Among the qualities of Justice Stevens that Mr. Obama hoped to find in a successor, the president noted “a keen understanding of how the law affects the daily lives of the American people.”
However, in at least one important area of constitutional law – the rights of property owners – Justice Stevens’ record fell woefully short of protecting the interests of average citizens. In fact, Justice Stevens consistently dismissed property rights claims and voted to strengthen government control over the lives of individuals….
Justice Stevens’ propensity to minimize the rights of property owners was demonstrated vividly in his opinion in the controversial case of Kelo v. City of New London (2005). At issue was a city economic redevelopment plan under which land acquired from residents through eminent domain would be transferred to private parties for the construction of new residences, stores and recreational facilities…. Pfizer Corp. helped instigate the redevelopment plan in the hope that the new facilities would benefit its planned new headquarters. The area slated for redevelopment was a middle-class neighborhood that was not blighted or dilapidated. A few of the neighbors challenged the condemnation on grounds that it was not permissible under the takings clause of the Fifth Amendment, which limits the exercise of eminent domain to “public use.” Writing for the court majority, Justice Stevens rejected this argument and upheld the taking of property for economic development purposes. He stressed heavy deference to governmental determination of what amounted to public use and was especially impressed with the notion that this taking was part of a development plan….
Because Justice Stevens barred courts from attempting to “second guess” the quality of a plan, as a practical matter, municipalities could easily prepare a plan that in reality benefited private interests. There is yet another problem with the Stevens opinion. The very purpose of the Bill of Rights is to safeguard individuals from abuses of governmental power. Broad deference to the officials it is intended to restrain is inconsistent with this purpose.
In Kelo, Justice Stevens virtually eviscerated the public use limitation of the Fifth Amendment at the federal level. Under his reading of public use, legislators appear to have almost unlimited power to take homes and businesses for economic development. The beneficiaries likely will be corporations and others with political clout…..
The framers of the Constitution and Bill of Rights believed that protection for private property was essential for self-government and individual liberty. In sharp contrast, Justice Stevens invariably manifested statist thinking about the property rights of individuals. His legacy is a testament of how far we have wandered from the constitutional vision of the framers.
Hopefully Elena Kagan, Mr. Obama’s nominee to replace Justice Stevens, holds a more balanced view of the importance of property rights in the American constitutional order. As in many other fields of law, however, Ms. Kagan’s record with respect to property rights is a blank slate. It certainly would be appropriate for senators at Ms. Kagan’s confirmation hearing to ask about her thoughts on this subject.
As I have argued previously, there is a potential for fruitful left-right alliances in this area. Many left-wing organizations and activists, including the NAACP, Rep. Maxine Waters, and Ralph Nader, vehemently opposed the Kelo decision because they correctly recognized that giving government unconstrained power to condemn property and transfer it to private parties would tend to victimize the poor, minorities, and the politically weak.
In The Audacity of Hope, President Obama wrote that “[]o]ur Constitution places the ownership of private property at the very heart of our system of liberty…. The result of this business culture has been a prosperity that’s unmatched in human history.” Unfortunately, his first Supreme Court nominee, Sonia Sotomayor, had a very poor record on property rights, as I explained in my Senate testimony at her confirmation hearings.
As Ely points out, Elena Kagan has almost no record in this field. Hopefully, her relative openness to ideas that depart from liberal orthodoxy might come into play here.
In the federal Supreme Court, property rights issues have split the justices along left-right lines over the last thirty years. But as the left-wing reaction to Kelo demonstrates, such a division is not inevitable. In some state judiciaries, liberal judges have voted to enforce tight state constitutional restrictions on eminent domain and exclusionary zoning, a point I discussed in the last part of this article.
If he is so inclined, it is not too late for President Obama to start appointing relatively pro-property rights liberals to the federal courts. Breaking the ideological logjam that has hobbled federal judicial protection of constitutional property rights would be an admirable example of change we can believe in.
UPDATE: Readers interested in this subject should check out Ely’s excellent 2005 article “Poor Relation Once More: The Supreme Court and the Vanishing Rights of Property Owners,” where he critiqued several of Justice Stevens’ important opinions in this area in more detail. Ely’s book The Guardian of Every Other Right is perhaps the best general history of constitutional property rights, and is must-reading for students of the field.
Some commentators have suggested that Elena Kagan is a nominee without much of a paper trail. I think this is overstated on two counts. First, her academic writing is more substantive than some have given her credit for (see here and here). Second, there appears to be a substantial amount of material from her time in the Clinton Adminsitration for the Senate Judiciary Committee to review. Documents from her tenure at the Domestic Policy Council have already been released. As Byron York reports, this is only the tip of the iceberg. There are many more documents from her time in the White House Counsel’s office — documents Senators are certain to demand, citing the release of papers from John Roberts tenure in the Reagan Administration as precedent. These records will shed more light on Kagan’s approach to legal and policy questions, even if they don’t reveal how she is likely to approach (let alone vote upon) specific issues.
UPDATE: Politico reports:
The Clinton Presidential Library is facing a mammoth task to prepare for confirmation hearings for Supreme Court Nominee Elena Kagan: processing about 160,000 pages of records from Kagan’s time as a lawyer and policy adviser in the Clinton White House.
The staggering page count comes from a letter President Barack Obama’s White House Counsel Bob Bauer sent Saturday to Archivist David Ferriero, asking that the Archives expedite release of the files so the Senate can have them to consider Kagan’s nomination.
“I understand that preparing these 160,000 pages for public release will require very significant efforts,” Bauer wrote. “Their availability, on an expedited schedule, is necessary to afford the Senate a reasonable opportunity to evaluate Ms. Kagan’s nomination.”
Estrada, you may recall, is the brilliant conservative lawyer whose nomination for the D.C. Circuit was blocked by Democrats early last decade; his letter supporting the nomination of Elena Kagan — whom he knows from law school — is here. The letter is quite substantive and graceful, as is to be expected from Estrada, and bears reading. Here’s one passage:
[I]t brings no credit to our government, and risks affirmative harm to our courts, when our elected representatives simply swap talking points — emphasizing the same considerations they previously minimized or derided — only to revert to their former arguments as soon as electoral fortunes turn.
And one more: “As has often been said, though rarely by senators whose party did not control the White House at the time, elections have consequences.”
Thanks to How Appealing for the pointer.
Discussed by Brian Darling, of the Heritage Foundation, in an article this morning for Human Events. Hopefully the confirmation hearings will provide an opportunity for Kagan to explain whether her views of the Second Amendment have evolved or changed since her days as a clerk or a Clinton staffer.
Whenever a Supreme Court confirmation hearing approaches, this quote from Abraham Lincoln tends to come up (e.g., here):
We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it.
I thought I’d pass along, though, the full context. The quote, as best I can tell, comes from George S. Boutwell’s Reminiscences of 60 Years of Public Affairs, vol. 2, p. 29 (1902), who reports that Lincoln had said (apropos the nomination of Salmon P. Chase to be Chief Justice):
[W]e wish for a Chief Justice who will sustain what has been done in regard to emancipation and the legal tenders. We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it. Therefore we must take a man whose opinions are known.
A somewhat different meaning, it seems to me.
And one more twist: While Lincoln rightly estimated Chase’s views on emancipation, Chase ultimately voted against Lincoln’s expectations — contrary to his supposedly “known” “opinions” — to provide the swing vote striking down the legal tender legislation that Chase himself had helped create. (That decision was itself reversed within a year using the votes of two newly appointed Justices. Some say those two Justices were themselves appointed because they were seen as likely to uphold the legal tender law; and they, unlike Chase, complied with the expectations.)
I’ll join Orin in some speculation. For the dominance of Catholics appointed by Republicans, I think Alkali, commenting on Orin’s thread, identifies part of the reason:
A Republican president can’t win by nominating a Protestant: if the nominee is a conservative evangelical, that could be controversial with moderate voters; if the nominee is not a conservative evangelical, that would create problems with the conservative base. That dynamic strongly favors nominating a Catholic or Jewish justice. The fact that no current Republican-nominated justice is Jewish is very likely just an artifact of chance — had Douglas Ginsburg’s nomination succeeded, it wouldn’t be the case.
But we can’t neglect the issue of Harvard/Yale laws schools dominance of the nominee pool. (There were many fair criticisms of Harriet Miers, but the fact that she didn’t attend Harvard or Yale like her potential USSC colleagues was not one of them!) Both schools have a lot more conservative Catholics than conservative Protestants, and of course Catholics are much more likely to be conservative Republicans, and especially to have anti-abortion sympathies, than are Jews. If I’m remembering correctly, a Catholic was the president of the Federalist Society all three of the years I attended Yale.
As for Jews and the Democrats, Yale was at least one-third Jewish when I attended, and I think has been so for a long time (less true at Harvard, but Harvard’s Jewish quotas were long gone by Kagan’s time). (A proposed song at the annual satirical show, eventually and wisely thought better of, was “Two Jews for every Goy” sung to the tune of “Two Girls for every Boy.”) The Jews, overall, were probably not much more liberal than the class as a whole, but let’s say that 40% of the graduating liberal Democrats were Jews. The percentage would be slightly higher if we limit ourselves to graduating liberal Democratic women.
The percentage would likely be even higher if we limited ourselves to “liberal Democratic women who graduated from Yale or Harvard and chose to pursue careers at the upper echelons of the legal profession in the Boston-Washington corridor,” which is where all the Justices have come from since Clarence Thomas [the Boston-Washington corridor, that is]. With those background statistics in mind, and given Obama and Clinton’s eagerness to find women for the Court, 75% of the Democratic appointees on the Court being Jewish doesn’t seem outside the range of normal statistical chance.
As an academic, Elena Kagan thought recent Supreme Court confirmation hearings were a “hollow charade.” In a prior post, I noted reasons to suspect Elena Kagan might not adhere to this view once it’s her turn before the Senate Judiciary Committee. But perhaps I spoke too soon. Jan Crawford reports:
In her private meetings with Senators, Elena Kagan is making a point that’s pretty hard to dispute. But in doing so, she’s turning up the pressure — on herself.
Kagan, the no-nonsense solicitor general, is criticizing past Supreme Court hearings as lacking in substance — and the performance of at least one justice now on the Court, according to senators who talked to her. . . .
Specter said today that Kagan didn’t back away from her views, and stood by the word “charade.” . . .
Kohl said Kagan told him in their meeting she hopes the hearings will be a “teachable moment.” . . .
So Kagan is setting a high bar and raising expectations. Of course, as Kohl said, she hasn’t talked about the hearings yet with her White House confirmation team. But already, these senators are expecting to hear a lot more from her than they have from past nominees.
And that, as Kohl put it, would be a real “public service.”
UPDATE: It also appears that in her meetings with Senators, Elena Kagan has been expressing her views about the Supreme Court’s recent decision in Citizens United. One might expect Kagan to talk about this case because she worked on it as Solicitor General, and argued it before the Supreme Court, but if this is a basis for her to talk about her personal opinions on the case, then this would seem to apply to other cases as well, and would preclude her from simply passing off the positions she has taken as SG as those of the administration and avoiding additional comment. If she is willing to talk about her personal views of Citizens United, she should be willing to talk about her personal views about other cases as well.
The Center for Competitive Politics points to these two passages from Politico and The Hill, both of which report on Sen. Specter’s accounts of his conversation with Kagan. Interesting, though not surprising.
A broader question: Would this suggest that she would be similarly forthcoming when asked about other issues, without the now-usual response of “I can’t comment on a matter that might come before me”? Would it suggest that Senators would be freer to prod her on such matters, on the theory that “You answered Sen. Spector’s questions, now please answer mine”? Or would they distinguish closed-door answers (relayed via a Senator’s own characterization of the conversation) from public answers at a committee hearing?
David Kravitz (Blue Mass Group) reports on Elena Kagan’s negative views of the majority opinion in Clinton v. New York, the line-item veto case in which Justices Scalia, O’Connor, and Breyer dissented, and (to a lesser extent) of the majority opinion in Hampton v. Mow Sun Wong, a 1976 case involving discrimination in favor of citizens by a federal agency.
I admire the fact that Elena Kagan made it a point to hire prominent libertarians and conservatives while she was dean at Harvard.
It’s difficult to get many American law schools, dominated by a broadly and comfortably liberal consensus across almost every field, to recognize the importance of ideological diversity among faculty. That’s true for hiring both libertarians and conservatives, but especially the latter. It’s not that law schools flatly refuse to hire them. Most academics have a richer regard for intellectual freedom and discussion than that. They are not so crudely intolerant of dissenting views.
Instead, the process of ideological self-replication in hiring is more insidious. Whatever our views, we are more likely to admire work that broadly agrees with our own than to admire work that profoundly disagrees with our own. So we say, “I’d welcome someone who disagrees with me (on conclusions, methodology, etc.), but this person does poor scholarship, is not ‘collegial,’ etc. Next.”
Overcoming this intellectual narcissism requires a conscious effort (a) to recognize that it exists, (b) to say so openly, and (c) to make real efforts to counter-balance it in generating the pool of candidates and in reviewing scholarship. It goes without saying that qualitative standards should not be lowered to hire conservatives or anyone else. It’s similar to the way in which overcoming racism and sexism in hiring requires a certain self-consciousness and self-criticism. (And no, I’m not saying that conservatives and libertarians are oppressed.)
While dean at Harvard, Kagan not only hired conservative scholars, but hired openly, prominently, and controversially conservative scholars. These included Adrian Vermuele and Jack Goldsmith from Chicago, and John Manning from Columbia. These were no squishes getting strange new respect from liberals. They defended heresies about international law, executive power, constitutional and statutory interpretation, and so on. Given Harvard’s hiring track record before she took charge, bringing in such people can’t have been universally appreciated. It took leadership.
Of course, as David has pointed out, professors of the quality Harvard hired were not obscure. They were established scholars with long and distinguished publication profiles. But much as I wish it were, Harvard isn’t in the business of lifting unknowns, liberal or conservative or other, from obscurity at Podunk U. And there have been excellent libertarian and conservative scholars not hired by law schools where they should easily have placed. Kagan broke and discredited this practice at the country’s top-ranked law school. One can hear the question now being asked around the country: If Harvard can hire conservatives, why can’t we?
How much does this matter for Kagan’s nomination? Some, but it’s hardly dispositive. At one level, Kagan was just being a smart dean, thinking of the long-term interests of the school. But it’s not like Harvard was facing a crisis because it lacked right-wingers. Obviously, commitment to ideological diversity would not be adequate compensation for a candidate who’s otherwise unqualified by inexperience or temperament, or one whose judicial philosophy is unsuitable for the Supreme Court.
But Kagan’s decanal record does suggest an openness to opposing views, a seriousness about ideas, and perhaps a willingness to be persuaded. Those are some of the qualities I’d want to see in a judge. And they are qualities that ought to give some comfort to conservatives and libertarians facing the prospect of Justice Kagan, ca. 2040.
As I’ve mentioned before, we don’t know much about Elena Kagan’s views on particular free speech cases, largely because much of her work has been analysis and synthesis of existing doctrine, rather than prescription about the way things ought to be. That’s a perfectly sensible approach, since the analytical components of an article are generally more useful to readers than the prescriptive components. But it does make her future votes harder to predict.
One thing that is clear, though, is that she would not have sided with the Justice she’s nominated to replace, Justice Stevens (or his colleagues Chief Justice Rehnquist and Justices White and O’Connor), and instead would have sided with Justices Brennan, Marshall, Blackmun, Scalia, and Kennedy in the flagburning cases. Writing about United States v. Eichman, she says, “[T]he Court, in invalidating the statute, made the correct decision.” 63 U. Chi. L. Rev. at 502. And it’s clear she would have reached the same result in Texas v. Johnson. (For whatever it’s worth, I agree with her on this.)
I believe this is the only occurrence of the phrase “correct decision” in her articles.
If Elena Kagan is confirmed, the Supreme Court will have four justices from New York City, the New York Times reports.
The four are a portrait of the city, each carrying distinct New York traits to Washington. “Kagan is so Manhattan, Scalia is so Queens, Ginsburg is so Brooklyn and Sotomayor is so Bronx,” said Joan Biskupic, the author of a biography of Justice Antonin Scalia. “They adopted in their identities the whole New York sensibility.”
Only Staten Island — “the forgotten borough,” as a woman who answered the telephone in the borough president’s office described it on Tuesday — would be without a justice to call its own if the Senate confirms Ms. Kagan.
Mary Dudziak is right regarding Elena Kagan: “let’s focus on her ideas and accomplishments, and not on the unsurprising idea of a single Supreme Court nominee.”
The problem, though, is the cult of personality that has developed around Supreme Court Justices over the past few decades, aided to a substantial degree by how presidential administrations have tried to “sell” their nominees. Who, after all, hasn’t gotten choked up after hearing the life story of the Supreme Court nominee who was raised-by-a-Jewish/Italian/Puerto Rican-immigrant-single-grandparent-on-a-ranch-in-the-barrio-of-Pin-Point-Arizona-and-has-two-adorable-kids?
Given that Justices’ personal histories have become such a significant part of the confirmation process, and the Justices themselves are followed like rock stars, athletes, or prominent politicians [albeit by a much smaller segment of the population for the former two]–all of whose romantic entanglements frequently find their way into the media–it’s little wonder that curiosity has been piqued about Kagan’s romantic life.
UPDATE: For more on the Court’s cult of celebrity, see this essay by my colleagues Craig Lerner and Nelson Lund.
