Archive | Kagan Nomination

Another Hunter on the High Court

CNN reports that in a recent speech Justice Elena Kagan acknowledged that she has gone practice shooting and hunting with Justice Scalia — and that she likes it.  From the story:

She recalled paying a courtesy call on Sen. James Risch (R-Idaho) shortly after her nomination to the court by President Obama in May 2010. Risch asked her about gun rights, and remarked she may not realize how important the issue was to some Americans, especially in his home state.

She admitted never having owned or fired a gun before. “But I told the senator if I was fortunate enough to be confirmed, I would go hunting with Justice Scalia.”

And she has, joining her conservative colleague on an excursion to a Washington-area shooting range and on several hunting trips, until now never reported. Her host at the synagogue event was surprised.

“You’re Jewish,” deadpanned Rabbi Mitchell Wohlberg.

“Yeah, but it turns out, it’s kind of fun,” said Kagan, laughing.

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Kagan’s Recusal Manuevers

While serving as Solicitor General, Justice Elena Kagan allegedly began maneuvering to avoid having to recuse in any eventual challenges to the Patient Protection and Affordable Care Act, months before her nomination was announced — indeed, even before she was told she was under consideration — according to a series of documents released in response to a Freedom of Information Act request. The National Law Journal reports on the disclosures here (registration required).

The documents, mainly in the form of printouts of internal email chains, show that now-Acting Solicitor General Neal Katyal – not Kagan herself — was the point person within the office on discussions of the new health care reform law and how to defend it in court. Released to, a conservative-oriented news outlet, the emails also reveal how Kagan was walled off from discussions of the law — possibly because she already knew she might be nominated to the high court, where a challenge to the statute would ultimately be decided.

The release has raised eyebrows among lawyers familiar with the long tradition of the solicitor general’s office resisting release of internal documents so as not to hamper deliberations on cases. . . .

In a March 15 letter releasing the documents, Valerie Hall, executive officer of the solicitor general’s office, said they could have been withheld under [a FOIA exemption for “inter-agency or intra-agency memorandums or letters”], but the department was releasing them anyway as “a matter of agency discretion.” published a story on the documents March 29

Another puzzle is that if these documents could be released under FOIA, why were they not disclosed to the Senate Judiciary Committee in preparation for Kagan’s confirmation hearing? Nothing reported to be in the documents would have prevented Kagan’s confirmation, nor does anything seem likely to [...]

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14 New Grants, Four More Recusals

The Supreme Court added fourteen more cases to the docket for October Term 2010 yesterday.  Lyle Denniston rounds up the cases here. (More here.)  As BLT notes, Justice Elena Kagan has recused herself from four of these cases.  For those keeping track, this brings her total number of recusals up to twenty-five.  This represents a significant portion of the Court’s docket for the term — almost half — but was to be expected given her service as Solicitor General. [...]

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Kagan’s Recusals

This week, Justice Elena Kagan “quietly recused herself” from ten more cases to be heard by the Supreme Court during the OT 2010 term, BLT reports. This means Justice Kagan has now recused in twenty-one cases, just over half of the forty cases accepted by the Court for the coming term.  The high recusal rate stems from her work in the Solicitor General’s office.  She will need to recuse far less in subsequent terms.

Some readers may recall the debate between Tom Goldstein and Ed Whelan over Kagan’s potential recusal obligations during the broader confirmation debate. Goldstein initially predicted that a Justice Kagan would have to recuse in 13 cases during her first term, an estimate he subsequently raised to 15, or between one-fifth and one-sixth of the total merits docket.  Whelan argued the total number would be much higher,  pointing to the experience of Justice Thurgood Marshall, who had to recuse in over 50 percent of the Court’s cases in his first term due to his prior service as Solicitor General.   For those keeping score, Kagan appears to be on pace to hit Whelan’s prediction, but only if her rate of recusal remains the same as the Court accepts another thirty-or-so cases in the coming months.

UPDATE: Ed Whelan comments on Kagan’s recusals here. [...]

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Forgetting Justice Marshall

During the recent Supreme Court confirmation hearings, several Republican Senators asked Elena Kagan about her views of Justice Thurgood Marshall.  Kagan clerked for Justice Marshall and had expressed admiration for his approach to the law.  Senate Republicans acknowledged Marshall’s pioneering and inspirational work as a civil rights attorney, but challenged Kagan’s apparent embrace of Marshall’s jurisprudence — what he once described as: “You do what you think is right and let the law catch up” — as “activist” and improper.

Harvard Law School dean Martha Minow, who also clerked for Justice Marshall, was “astonished” by this line of questioning, and wrote an op-ed in the Boston Globe (reproduced on Balkinization).  According to Minow, “these criticisms revealed not only a lack of knowledge of Marshall’s precise adherence to rules and precedent but also a failure to appreciate the significance of his contributions to American law.”  And yet Minow’s op-ed has almost nothing to say about Justice Marshall’s jurisprudence on the court, let alone his “precise adherence to rules and precedent.”  Instead, the balance of her essay celebrated Marshall’s work as an advocate and the legacy of his most important case, Brown v. Board of Education.

Minow rightly notes that Marshall was among the most important lawyers of his generation, an iconic figure in the civil rights movement who ably and nobly challenged racial segregation and successfully litigated Brown. It’s safe to say our country would be a very different place were it not for his efforts. Yet one can celebrate Marshall’s work as an advocate without embracing his work as a judge.  To question his approach to, say, the death penalty or the due process clause is not to question the importance of Brown, nor does it reveal some unspoken desire to “appeal to [...]

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My Senate briefing on Kagan and the McDonald Case

It was delivered in late June to the Second Amendment Task Force, a group of Republican Senate aides. (Unfortunately, the Senate’s protocals of partisanship prevent organizations like this from having aides from both parties.) My presentation is here (22 minutes). The presentation by Hans Von Spakovsky, Senior Research Fellow at The Heritage Foundation, is here. And Stephen Halbrook’s presentation is here. [...]

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One Democrat to Oppose Kagan

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. [...]

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Polling Justice Kagan

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. [...]

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Kagan Did “Just Enough” To Win Specter’s Vote

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.

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Kagan Doesn’t Like Korematsu

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. [...]

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Saletan on Kagan, ACOG, and the Partial-Birth Abortion Ban

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.

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Goldsmith Gives It to the Judiciary Committee

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

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Kagan’s Testimony on Property Rights

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

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Further Reactions to the Kagan Hearings

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. [...]

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