The Volokh Conspiracy

Senator Ben Nelson (D-NE) has announced he will vote against confirmation of Elena Kagan to the Supreme Court.  He is the first Democrat to come out against her.

Nelson’s decision marks the first time a Democrat has crossed Obama over a Supreme Court nominee. The president’s first pick for the high court, Justice Sonia Sotomayor, won unanimous Democratic support – plus backing from nine Republicans – when the Senate confirmed her last year.

Nelson waited until late in the process to decide whether to back Sotomayor. This time, he said he wasn’t comfortable giving Kagan the benefit of the doubt.

“(I) have heard concerns from Nebraskans regarding Ms. Kagan, and her lack of a judicial record makes it difficult for me to discount the concerns raised by Nebraskans, or to reach a level of comfort that these concerns are unfounded,” Nelson said. He didn’t outline what those worries were.

It won’t make a difference, however, as five Republicans (Snowe, Collins, Lugar, Graham, and Gregg) have announced their intention to vote in favor of her confirmation.

The Senate Judiciary Committee is scheduled to vote on Elena Kagan’s nomination to the Supreme Court this week.  Barring a truly shocking development, the Senate will vote to confirm her later this summer.  Gallup reports that Americans support her confirmation 44 percent to 34 percent.  That a plurality of Americans supports her confirmation should not surprise, but this finding by Gallup might:

If confirmed, Kagan would be the first successful nominee in recent years whose nomination was backed by less than a majority of Americans in the final poll before the Senate confirmation vote (or, in the case of Harriet Miers, before her nomination was withdrawn).

Further, only 68 percent of self-identified Democrats supported her confirmation in the poll.  I can see several possible explanations for the relative lack of enthusiasm for Kagan, including broad public disaffection with the Obama Administration, the relative lack of media coverage of her nomination, lack of enthusiasm on the Left, or her lack of judicial experience.  I am sure there are others.  Gallup offers no explanation.  The question and results are here.

Senator Arlen Specter (R D-PA) has an op-ed in USA Today explaining his decision to support the confirmation of Elena Kagan to the Supreme Court.  He explains that it was a close call, and that he was deeply troubled by her refusal to answer more substantive questions, but will support her nonetheless.  As he summarizes:

On balance, Kagan did little to move the nomination hearings from the stylized “farce” (her own word) they have become into a discussion of substantive issues that reveal something of the nominee’s judicial philosophy and predilections.

It may be understandable that she said little after White House coaching and the continuing success of stonewalling nominees. But it is regrettable. Some indication of her judicial philosophy may be gleaned by her self-classification as a “progressive” and her acknowledged admiration for Justice Thurgood Marshall. That suggests she would uphold congressional fact-finding resulting in remedial legislation and protect individual rights in the congressional-executive battles.

The best protection of those values may come from the public’s understanding through television of the court’s tremendous power in deciding the nation’s critical questions. In addition to her intellect, academic and professional qualifications, Kagan did just enough to win my vote by her answers that television would be good for the country and the court, and by identifying Justice Marshall as her role model.

During her nomination hearings, Elena Kagan carefully avoided offering a personal opinion about any Supreme Court decision.  In a written response to questions from Senator Cornyn, however, she was willing to identify Korematsu v. United States as a particularly “poorly reasoned” decision.

UPDATE: Jess Bravin of the WSJ reports that Kagan also doesn’t like Critical Legal Studies.

Slate‘s William Saletan, author of Bearing Right, writes on “Elena Kagan’s partial-birth abortion scandal,” concluding (as I did) that the events uncovered impugn the American College of Obstetricians and Gynecologists more than Kagan.  But he also thinks there is a broader lesson to be learned here.  He writes:

Kagan, who was then an associate White House counsel, was doing her job: advancing the president’s interests. The real culprit was ACOG, which adopted Kagan’s spin without acknowledgment. But the larger problem is the credence subsequently given to ACOG’s statement by courts, including the Supreme Court. Judges have put too much faith in statements from scientific organizations. This credulity must stop.

As Saletan details, Kagan’s suggested revisions did more than “clarify” the ACOG statement; they altered its emphasis, and the changes had their desired effect.  The revised statement was treated as an authoritative medical statement by in court.  Writes Saletan:

By reframing ACOG’s judgments, she altered their political effect as surely as if she had changed them.She also altered their legal effect. And this is the scandal’s real lesson: Judges should stop treating the statements of scientific organizations as apolitical. Such statements, like the statements of any other group, can be loaded with spin. This one is a telling example.

He concludes:

All of us should be embarrassed that a sentence written by a White House aide now stands enshrined in the jurisprudence of the Supreme Court, erroneously credited with scientific authorship and rigor. Kagan should be most chastened of all. She fooled the nation’s highest judges. As one of them, she had better make sure they aren’t fooled again.

Here, starting at 41:09. The next witnesses, William Olson, also testified on Second Amendment issues. After that, the three Senators at the hearing (Schumer, Sessions, and Hatch) asked questions to some of the witnesses, including Olson and me.

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.

In an exchange with Republican Senator Charles Grassley yesterday, Elena Kagan made some interesting comments on property rights and the controversial Kelo decision:

GRASSLEY: …. I want to start with private property.

The takings clause of the Fifth Amendment states, “Nor shall private property be taken for public use without just compensation.” The plain language of the Constitution says an individual’s property shall not be taken for public use.

Yet, the majority of the Supreme Court case in Kelo wrote that the government could take a person’s private property for public purpose, not using the word “use,” which they determined included private redevelopment of land.

Do you believe that the Supreme Court correctly decided the Kelo case or do you believe that the Supreme Court improperly undermined constitutionally protected private property rights?

KAGAN: Senator Grassley, it was obviously a very controversial decision that has inspired a great deal of action in the state legislatures.

I’ve — I’ve — I’ve not commented on particular cases, I’ve not graded cases, but a few thoughts about Kelo.

Of course, what — what the — what the court in Kelo did was to say that the question of public use was not necessarily use by the public, but instead was use for a public purpose. And the court said that in the context of a taking of property that was done pursuant to a broad-scale urban development plan.

So I think it remains an open question whether that public purpose test would apply in any other context without such a broad- scale urban development plan…..

It’s also true — it’s also true that in some sense what the — what the — what the court did in this area when it said this was to kick the question back into the political process. In other words, the court didn’t say, of course, that the government had to do such takings. What the government said was that a state was permitted to do so.

And what states have done in the wake of that decision, in a — in a — in a very striking manner, I think, is to say, “Thanks, but no thanks, you know. We don’t want that power. We don’t want to be — we don’t want to do this. We think doing this, taking property from one person to give it to another person, even in the context of a broad redevelopment plan, is not appropriate public policy.”

And so a number of states, I know — I don’t know the exact number, but quite a number — have passed these kinds of anti-Kelo legislation, which makes sure that the — that the question never arises because the state government doesn’t try to effect such a taking in the first instance…..

GRASSLEY: Under Kelo, the court said that the pretextual (ph) takings are still unconstitutional violation of public use doctrine. Could you give me an example of a condemnation that’s an unconstitutional pretextual (ph) taking?

KAGAN: Gosh, you know, I don’t remember that exact line from Kelo. So I’m a little bit guessing as to the context.

But I think probably what the court meant was a taking that the government does not truly to serve a public purpose, but instead more to give the property to another individual person, the kind of Calder v. Bull scenario, take property from A, give it to B, under the guise of a public purpose.

So I would think that that’s what the court meant, although I don’t recall that exact statement. And I think that that also would provide a limit of the kind you’re speaking about on the doctrine.

GRASSLEY: Can you think of any areas where, in your opinion, the Supreme Court has failed to provide adequate protection of constitutional property rights? And if you can think of any, then I’d like to know examples — or an example.

KAGAN: Well, you know, I’ve tried very hard, Senator Grassley, not to suggest where I see deficiencies with — in — in — in the court’s handling of cases. So I think, you know, I think I won’t answer that question with that degree of specificity.

I mean, it is quite clear that the — that the Constitution does in various ways, and most notably by the takings clause, protect property rights, and that the job of the courts in — with respect to those rights, as any other, is to ensure that government does not overstep its proper bounds.

GRASSLEY: The president who appointed you, in “Audacity For Hope,” his book, said our Constitution places the ownership of private property at the very heart of our system of liberty. Do you agree with that statement?

KAGAN: Well, I do think that property rights are a foundation stone of liberty, that the two are intimately connected to each other in our society and in our history.

I. A Sign of Progress for Property Rights.

Unlike Sotomayor, Kagan does not have an extensive prior record on property rights. The fact that these issues came up in her hearings nonetheless is a further step forward for property rights, on the heels of the extensive questioning of Sotomayor on that subject. Property rights has now become a subject that any Supreme nominee must address. That is a small but genuine sign of progress.

I am happy that Kagan believes that “property rights are a foundation stone of liberty” and that “the job of the courts.. with respect to [property] rights, as any other, is to ensure that government does not overstep its proper bounds.” At the same time, I’m not optimistic that this means she will go against the Court’s oft-repeated pattern of giving property rights far less protection than other enumerated constitutional rights.

II. Kagan’s Discussion of Kelo.

Kagan’s comments on Kelo are reasonable and largely accurate. It’s a substantial improvement over Sonia Sotomayor’s mischaracterizations of the decision during her testimony last year (see here and here).

However, I do have a few bones to pick. First, it is slightly incorrect to state that Kelo said that the “public purpose” test applies only to cases involving “a broad-scale urban development plan.” The Kelo majority opinion was quite clear in stating that the test applies to all takings. Kagan was probably confused by the majority’s statement that “a one-to-one transfer of property, executed outside the confines of an integrated development plan” might not deserve as much judicial deference as one that is part of a plan. However, as the Court emphasized, the “public purpose” test applies even to these types of cases; it’s just that courts might not be as deferential to the government’s claim that a public purpose existed.

Much more importantly, Kagan was wrong to suggest that the existence of a “development plan” is a meaningful constraint on the scope of condemnation authority under Kelo. As I emphasized in this article, virtually all economic development and blight takings are pursuant to some plan or another. Ironically, even 99 Cents Only Stores vs. Lancaster Redevelopment Agency, a California district court cases specifically cited by the majority as an example of an impermissible “one to one taking” was actually part of a redevelopment plan. And the Kelo majority’s refusal to even consider the quality of the plans in question ensures that it is possible for a state or local government to create a “plan” justifying virtually any taking.

I also think that Kagan is a bit too optimistic in suggesting that post-Kelo reform in the states ensures that “the question never arises because the state government doesn’t try to effect such a taking in the first instance.” As I have explained in my academic work on post-Kelo reform, many of these are primarily symbolic and don’t actually restrain condemnations in any significant way. However, Kagan is not an expert on post-Kelo reform and it is understandable that she might not be well-informed about the nature of these laws.

Finally, Kagan and Grassley were right to note that the Kelo majority stated that “pretextual” takings are unconstitutional. What exactly counts as a pretextual taking under Kelo is hotly disputed. For a good discussion, see this article by Daniel Kelly. Justice Sotomayor, the president’s last Supreme Court nominee, ruled in the Didden case that even blatant extortion for the benefit of a private interest doesn’t qualify as a pretextual taking. That was the main reason why I testified against her.

Very extreme cases like Didden aside, the Supreme Court’s broad definition of “public purpose” ensures that even cases of fairly blatant favoritism will often be upheld. It’s easy to claim that almost any taking potentially benefits the public in some sense, especially since the Kelo Court explicitly held that the government has no obligation to prove that the claimed benefits will actually materialize. In Kelo itself, there was a great deal of evidence that the condemnations were undertaken as a result of lobbying by the Pfizer corporation.

Overall, I suspect that Kagan probably thinks that Kelo was rightly decided, and I doubt that she will be a strong protector of property rights on the Court. That said, I think she may turn out to be better on these issues than Sotomayor, and I see no reason to reconsider my view that Kagan is less bad from a libertarian perspective than most other plausible Obama nominees would have been. I am not opposed to her nomination, and what she said in answer to Grassley’s questions doesn’t alter my overall impression of her.

FULL DISCLOSURE: I should mention that a member of Senator Grassley’s staff consulted with me on property rights issues prior to the hearings. However, it is important to emphasize that it was not I who persuaded the senator to question Kagan about either property rights generally or Kelo specifically. Rather, his staff approached me because he was already interested in asking about these subjects, and wanted to go over some details with an outside expert.

UPDATE: I have edited this post slightly to remove some repetitive or non-substantive statements from the exchange between Grassley and Kagan. As per usual practice, I have used ellipses to note my omissions.

The Washington Post has posted my comments on today’s hearings in their online “Topic A” feature.  Comments from others are sure to follow.  Among other things, I note that Elena Kagan has effectively avoided giving substantive answers that could disclose her views on any legal issue, old or new.  She wouldn’t name any justice she considered to be an “activist” and wouldn’t say whether she agreed with the Declaration of Independence.  She also refused to indulge Democratic Senators’ invitations to criticize the Roberts Court, often correcting simplistic caricatures of recent opinions and doctrines. (Jan Crawford noted an amusing exchange here.)  I’ve discussed the hearings a bit more on NRO’s Bench Memos (see, e.g.,  here and here).

Among the more interesting parts of today’s hearing was Senator Arlen Specter’s frustration with Kagan’s evasiveness.  While Kagan seems to have learned the wisdom of the conventional approach to confirmation hearings, Senator Specter clearly pines for a nominee that would follow the advice of Kagan’s 1995 University of Chicago Law Review article.  As noted by BLT, Specter was sufficiently unhappy to raise the prospect of voting against his own (newly adopted) party’s nominee.

I doubt Specter will end up voting against confirmation, and I don’t think it will matter if he does.  There won’t be 40 votes against cloture on her nomination (and that’s a good thing), and there surely won’t be a majority opposing her confirmation.  Elena Kagan is one step closer to being the nation’s next associate justice.

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 faxed to the legislative director at ACOG — Kagan proposed that ACOG include the following language: “An intact D&X [the medical term for the procedure], however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.”

Powerline’s John Hinderaker thinks this is a “smoking gun” and Kagan “has a great deal of explaining to do.”  Glenn Reynolds thinks this is “at least” a scandal for ACOG, if not Kagan herself. If the allegations are true, it’s a clear example of the politicization of science by a Democratic administration (and further evidence that there are no clean hands on science politicization).

I expect we’ll hear more about this at tomorrow’s hearings, and I will be interested to see if there’s more to the story. If the allegations are true, I am sure we’ll hear that this sort of thing happens all the time in the White House, but does it really?  Are statements by purportedly neutral and apolitical professional organizations re-written by White House staff for political advantage?   Real “scandal” or not, this will fire up Kagan’s opponents and the GOP base, particularly social conservatives.

ADDENDUM: Assuming the allegations are true and do not omit key details, is this really a scandal?   I think it is, but not necessarily for Kagan.  Kagan was a White House staffer, so we would expect her to encourage outside groups to adopt positions that were amenable to Administration policy.  That’s not a scandal.  Encouraging a reputed professional organization to alter its factual claim in an official statement (e.g. whether the relevant procedure was ever the “most appropriate procedure available”) is a closer call, but probably not scandalous when done by a policy staffer for political purposes.  So this could be embarrassing for Kagan, and make abortion a larger issue in her confirmation, but it’s not the sort of thing that will stop her from being confirmed.

ACOG, on the other hand, comes out looking much worse.  If it actually let a White House rewrite an official statement of the organization on the necessity of a given medical procedure, its credibility will take a hit.  If ACOG categorically opposed any and all legislative impositions, that’s fine.  If it issued a specific statement based upon a White House staffer’s judgment of what was politically expedient, as opposed to what was true about the necessity or advisability of a given procedure, then it perpetrated a fraud and let itself be used for political purposes.

As a final note, there could also be interesting ethical issues if attorneys involved in any of the PBA suits were aware of the provenance of the relevant language in the ACOG statement.  This statement was presented to multiple courts as a definitive statement of a professional medical organization about whether a given medical procedure was ever necessary or at least the best available option for certain women seeking abortions.  If Coffin’s allegations are correct, however, it was a piece of political advocacy, not a statement of medical authority, and should not have been presented to courts as such.

MORNING UPDATE: A commenter below points to the full ACOG statement, suggesting that the changes to its wording were less consequential than Coffin’s account suggests.  I am not sure this fully clears ACOG, but it certainly lessens the gravity of the charge.

ADDITIONAL UPDATE: Shannen Coffin responds at The Corner, and suggests some questions Senators may wish to ask Kagan at her hearing.

YET ANOTHER UPDATE: More from Shannen Coffin, and a summary of Senator Hatch’s questioning of Kagan on this issue. (And a post questioning Coffin post here.)

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.”

It may not be worth much now, but Elena Kagan just told the Senate Judiciary Committee that Miguel Estrada is “qualified to sit as an appellate judge” and “qualified to sit as a Supreme Court justice” (and then she told Senator Graham she would put this in writing).

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 I hit "publish" too soon while drafting.]

Various folks have been, and will be, live-blogging the Kagan confirmation hearings.  Among those who live-blogged today’s opening statements are SCOTUSBlog, NRO, and TPM.

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 to argue that important federal laws would never have been adopted had Citizens United been the law at the time, he’ll have to pick a better example than this.

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 North Texas and one of the study’s authors.

“We’re going to see her pressed very similarly to Sotomayor about judicial philosophy,” Professor Collins said, “especially by Republican senators, who have taken a kind of issue ownership of that issue. Republicans have won the rhetoric war. They own phrases like ‘judicial activism’ and ‘judicial restraint.’ ”

The study, “May it Please the Senate: An Empirical Analysis of the Senate Judiciary Committee Hearings of Supreme Court Nominees, 1939-2009,” is up on SSRN.  I’ve reproduced the abstract below the fold.

Continue reading ‘“Vapid and Hollow” or Substantive and Illuminating?’ »

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.

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.

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 one more with whom I’d probably not always agree.”

Brennan admitted none of this publicly and thought Stevens had made a mistake by doing so: “God, the last thing in the world any of us should do is be willing to comment on any appointment, if someone’s going to be a new colleague.”

Back in the present, Robert Bork has adopted a different view, announcing this week that he opposes Kagan’s confirmation to the Court.

UPDATE: The opening line of this post has been edited to clarify that Kagan’s 1997 quote only referred to the Bork confirmation hearings as the “best thing” to happen to constitutional democracy.

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.

The LA Times reports:

The early returns are in, and Justice Sonia Sotomayor is proving herself to be a reliable liberal vote on the Supreme Court.

Cases this year on campaign speech, religion, juvenile crime, federal power and Miranda warnings resulted in an ideological split among the justices, and on every occasion, Sotomayor joined the liberal bloc.

“There was some anxiety among liberals last year that she would be to the right of Justice [David] Souter, especially on criminal law, but so far that has not been borne out,” Cornell University law professor Michael Dorf said of Sotomayor and her predecessor. “She is clearly part of the liberal wing.”

I don’t think this is all that surprising.  I don’t believe there was ever much reason to think that Justice Sotomayor would be to the “right” of Justice Souter.  Her experience as a prosecutor and trial judge is likely to inform her view of what occurs at the trial court level, but I don’t think such experience will necessarily make a nominee more “conservative” on criminal justice issues.  As I wrote before (see here and here), those areas in which they are most likely to differ do not divide the Court along traditional right-left lines.  In addition, there are other areas (such as punitive damages) where Justice Sotomayor could easily be to Justice Souter’s left.  But these are only “early returns” and it is too soon to tell.  We won’t have a clear picture of Justice Sotomayor’s jurisproduce for quite some time, and (like her predecessor) her approach to certain issues may evolve over time.

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.

It seems that everyone’s against “judicial activism,” but what does it mean?  Does labeling a judge or decision “activist” indicate anything more than disagreement with the outcome?  Is it fair to label a judge or judicial nominee “activist”?  The Federalist Society has just posted a podcast debate on these questions featuring our own Randy Barnett, Pamela Karlan, Ed Whelan, and Erwin Chemerinsky.  John Eastman moderates.