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Elena Kagan: Nomination

posted by Scot McKnight

Lawbook.jpgThere are two sides of this nomination, but one point about the probably result seems important to many: 

If the Senate confirms Ms. Kagan, who is Jewish, the Supreme Court for the first time will have no Protestant members. In that case, the court would be composed of six justices who are Catholic and three who are Jewish. It also would mean that every member of the court had studied law at Harvard or Yale.”

2.  Kagan may well have less experience relevant to the work of being a justice than any justice in the last five decades or more.  In addition to zero judicial experience, she hasonly a few years of real-world legal experience.  Further, notwithstanding all her years in academia, she has only a scant record of legal scholarship.  Kagan flunks her own“threshold” test of the minimal qualifications needed for a Supreme Court nominee.

 

3.  There is a striking mismatch between the White House’s populist rhetoric about seeking a justice with a “keen understanding of how the law affects the daily lives of the American people” and the reality of the Kagan pick.  Kagan is the consummate Obama insider, and her meteoric rise over the last 15 years–from obscure academic and Clinton White House staffer to Harvard law school dean to Supreme Court nominee–would seem to reflect what writer Christopher Caldwell describes as the “intermarriage of financial and executive branch elites [that] could only have happened in the Clinton years” and that has fostered the dominant financial-political oligarchy in America.  In this regard, Kagan’s paid role as a Goldman Sachs adviser is the perfect marker of her status in the oligarchy–and of her unfathomable remoteness from ordinary Americans.

6.  Kagan has argued that the Senate should carefully explore a nominee’s views on judicial philosophy generally and on hotly contested constitutional issues in particular.  Her argument has special force for someone who has been so guarded about her own views.  Indeed, its force is all the greater since Kagan has indulged her own ideological views in the one area, gay rights, in which she has been vocal:  as law school dean,Kagan embraced an utterly implausible reading of the Solomon Amendment, and as Solicitor General, she has acted to undermine the Don’t AskDon’t Tell law and theDefense of Marriage Act that she is dutybound to defend. 


And from the NYTimes, by Peter Baker and Jeff Zeleny

Replacing Justice Stevens with Ms. Kagan presumably would not alter the broad ideological balance on the court, but her relative youth means that she could have an influence on the court for decades to come, underscoring the stakes involved.

In making his second nomination in as many years, Mr. Obama was not looking for a liberal firebrand as much as a persuasive leader who could attract the swing vote of Justice Anthony M. Kennedy and counter what the president sees as the rightward direction of the court under Chief Justice John G. Roberts Jr. Particularly since the Citizens United decision invalidating on free speech grounds the restrictions on corporate spending in elections, Mr. Obama has publicly criticized the court, even during his State of the Union address with justices in the audience.

Ms. Kagan defended her experience during confirmation hearings as solicitor general last year. “I bring up a lifetime of learning and study of the law, and particularly of the constitutional and administrative law issues that form the core of the court’s docket,” she testified. “I think I bring up some of the communications skills that has made me — I’m just going to say it — a famously excellent teacher.”

Ms. Kagan was also confirmed by the Senate just last year, albeit with 31 no votes, making it harder for Republicans who voted for her in 2009 to vote against her in 2010.

The president can also say he reached beyond the so-called “judicial monastery,” although picking a solicitor general and former Harvard law dean hardly reaches outside the Ivy League, East Coast legal elite. And her confirmation would allow Mr. Obama to build on his appointment of Justice Sotomayor by bringing the number of women on the court to its highest ever (three, with Justice Sotomayor and Justice Ruth Bader Ginsburg).

Moreover, in his selection of finalists, Mr. Obama effectively framed the choice so that he could seemingly take the middle road by picking Ms. Kagan, who correctly or not was viewed as ideologically between Judge Wood on the left and Judge Garland in the center.

But Mr. Obama ultimately opted to save Judge Garland for when he faces a more hostile Senate and needs a nominee with more Republican support. Democrats expect to lose seats in this fall’s election, so if another Supreme Court seat comes open next year and Mr. Obama has a substantially thinner margin in the Senate than he has today, Judge Garland would be an obvious choice.



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Comments read comments(22)
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Jeremy

posted May 10, 2010 at 11:32 am


She’s replacing a liberal judge and I don’t view gay marriage as even remotely threatening to Christian marriage, so I’m not bothered. Don’t Ask, Don’t Tell should have gone the way of the dodo years ago anyway. I watched some really great soldiers in my brigade get the boot or harassed over it.
If anything, I think this just further reinforces my opinion that Christians need to stop spending so much energy trying to control the public sector and focus on loving and helping people instead.



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Randy

posted May 10, 2010 at 11:50 am


The intertwined elites rings true.
I recall Western Civ. books, diplomats, financial elites and others with the Kagan name. I don’t know all of their familial connections, but I cannot believe that there are not substantial ties of status, wealth and power.
Peace,
Randy Gabrielse



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kevin s.

posted May 10, 2010 at 11:55 am


I wonder if Obama is pulling a Harriet Miers here.
Kagan is close to the vest as a political ally without a lot of experience. The left isn’t particularly excited about her, and while everyone can generally guess how she’ll rule on contentious cases, she doesn’t have a track record in that regard.
The fact that the White House proactively denied her sexuality was interesting. Ostensibly, that would be a selling point with the base, so why dismiss it so forcefully? There have also been a dearth of supportive op-eds out of the gate. Friendlies usually have these locked and loaded.
I wonder if Obama is just floating Kagan, hoping to tease out some anti-gay remarks from the right to smooth the nomination of someone like Liu or Wood. If so, will this become the new tactic for presidents tasked with nominating two justices?



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kevin s.

posted May 10, 2010 at 12:06 pm


@Jeremy
“She’s replacing a liberal judge and I don’t view gay marriage as even remotely threatening to Christian marriage, so I’m not bothered. ”
It’s not her stated opposition to “Don’t Ask Don’t Tell” that is problematic, but her means of opposing. She leveraged her position as head of an institution to create a rift between her university and the settled law of the land, and was ultimately forced to concede.
This indicates a disinclination to operate within her sphere of influence. This is the primary conservative criticism of liberal jurists, that they use any means necessary to overturn laws they don’t like.



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kevin s.

posted May 10, 2010 at 12:10 pm


Off-topic, but can someone explain to me the moderation methodology employed here? Are there certain buzzwords that automatically zap comments? Seems random.



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RJS

posted May 10, 2010 at 12:46 pm


kevin s (#5),
I am not sure what the system is – but don’t take it personally. I’ve had comments sent to moderation, dopderbeck has had comments sent to moderation – even Scot has at least once.



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kevin s.

posted May 10, 2010 at 1:00 pm


“I am not sure what the system is – but don’t take it personally. I’ve had comments sent to moderation, dopderbeck has had comments sent to moderation – even Scot has at least once.”
No worries. Some blogs have certain keywords, or other triggers that relegate comments to purgatory. Other blogs have certain topics you can’t bring up. Just wondered if that was the case.



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DRT

posted May 10, 2010 at 2:27 pm


I wish I knew more to even have a guess what it means to have someone from the east coast legal elite being a judge. I mean, it makes sense to me though I do understand that we should inherently like diversity in the court.
Do we have a description of the childhood and famiy experiences of each of the judges? Sure the education method and crowd they hang with matters, but by and large if you want to be a top notch lawyer don’t you try to go to an elite school?
I just wonder if there is any real substance to that argument.
Dave



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Richard

posted May 10, 2010 at 3:27 pm


“There is a striking mismatch between the White House’s populist rhetoric about seeking a justice with a “keen understanding of how the law affects the daily lives of the American people” and the reality of the Kagan pick”
This seems like an answer on my “jump to conclusions” mat. She’s educated and comes from a well-off family so she can’t sympathize with the poor and how US law affects the least of these? Please, someone notify Eleanor Roosevelt, Bush Sr. or Jr., JFK, and any other influential US leader from wealth that they’re automatically out of touch…Is it a possibility, sure, is it automatic, not at all.



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kevin s.

posted May 10, 2010 at 5:26 pm


@DRT
I agree. Sam Alito was the son if Italian immigrants who became teachers. John Roberts came from a middle class background, and is two generations removed from Czechoslovakian immigrants. I very much doubt that his academic experience turned them into callous tyrants.
Harvard and Yale are the best law schools, so that’s where great minds go to learn how to contend with the law (for better or worse) if they have the opportunity. While both law schools are certainly guilty of trading on reputation in the admissions process, the trend isn’t nearly so egregious as it is at the undergraduate level.
I don’t care if you’re an empathetic person, so long as you agree with my philosophy on the role of the courts and the constitution. I don’t think empathy impacting higher court rulings is a good thing generally.



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Rob the Rev

posted May 10, 2010 at 5:44 pm


Here’s a good read.
Religious Right Panic Over Kagan?s Sexuality
By Candace Chellew-Hodge
May 10, 2010
http://www.religiondispatches.org/blog/2554/religious_right_panic_over_kagan%E2%80%99s_sexuality/



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kevin s.

posted May 10, 2010 at 6:41 pm


“Here’s a good read.”
Really? That article takes on some fringe group that has no influence on this issue, and does a bit of jujitsu to make it seem like mainstream evangelical groups have the same approach. That’s a good read?
I suspect that the left will make a bigger deal out of her sexuality than will the right. The goal will be to, well, find some fringe group and make it seem as though that group is reflexive of broader opposition.
If John Roberts or Sam Alito were gay, I strongly doubt they would have lost support among influential advocacy groups for that reason.



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Phil Atley

posted May 10, 2010 at 6:46 pm


Speaking as an academic, I have to say that no single world within our interlocking worlds we call society is as narrowminded and tunnel-visioned as academia. And within academia, deans and administrators are even more obsessed with narrowminded political correctness.
I cannot think of any group of people more out of touch with the average person in America. FDR started a trend to go to “experts” from academia rather than from the broader society. It has been characteristic of the Obama administration from day one–his cabinet has fewer people with real world experience than any administration since FDR. The ones who aren’t from academia are from the non-profit sector, which is another kind of hot-house environment.



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Phil Atley

posted May 10, 2010 at 6:53 pm


That Alito and Roberts had academic experience is apples to Kagan’s oranges. Many lawyers who became judges had some law teaching experience. But Alito and Roberts had years of federal judicial experience. Kagan has nothing but academic and academic administration experience. It’s not family social class background that matters so much as where one has made one’s professional mark. I wouldn’t be unalterably opposed to someone from a business background or a lawyer with courtroom experience but no judicial experience–even that’s more “real world” than is a pure academic or non-profit career.



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Danny

posted May 10, 2010 at 6:54 pm


There shouldn’t be anything to worry about. I trust the President to pick the best person for the job.



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kevin s.

posted May 10, 2010 at 8:43 pm


“But Alito and Roberts had years of federal judicial experience. Kagan has nothing but academic and academic administration experience.”
True. The academic world is home to the most rigorous set of litmus tests imaginable. Nothing about Kagan impresses me, but she’s not likely to impress the nominal majority of the Supreme Court either. That’s why I’m not sure this is really going to happen.



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Chuck

posted May 11, 2010 at 11:00 am


I am both perplexed and concerned that we may have a new supreme court judge who has no judicial experience whatsoever. None. How can that be? I am also concerned that our whole court will be ivy league educated. Are there no other competent law schools in this country. The whole process smacks of Liberal elitism and I fail to see how this will be good for our country.



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Anderson

posted May 11, 2010 at 11:52 am


I am both perplexed and concerned that we may have a new supreme court judge who has no judicial experience whatsoever. None. How can that be?

A lot of Supreme Court justices have had no prior judicial experience. William Rehnquist didn’t. Eisenhower nominated Earl Warren, who had no judicial experience, as Chief Justice. Hugo Black, Byron White, and Lewis Powell are a few of the many others who had not been judges prior to sitting on the Supreme Court.



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Jeremy

posted May 11, 2010 at 2:06 pm


As Anderson said, thinking SCJ’s had to have judicial experience is a relatively new thing…last 20 years or so, I think. We’ve had 40 so far that had none whatsoever. I’m not sure how many had very little.



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Kenny Merriken

posted May 11, 2010 at 5:26 pm


Ask Elena Kagan the following questions, please: Does the right to life, liberty, and the pursuit of happiness for an American begin at conception? Does human life begin at conception? Does abortion prematurely end the life of an unborn human being?



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kevin s.

posted May 11, 2010 at 6:40 pm


“Ask Elena Kagan the following questions, please: Does the right to life, liberty, and the pursuit of happiness for an American begin at conception? Does human life begin at conception? Does abortion prematurely end the life of an unborn human being?”
Obama would not nominate anyone who would answer yes to these questions. He’s pro-choice to the point of supporting partial-birth abortions. There would really be no point to asking these questions. She won’t answer them.



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EricG

posted May 12, 2010 at 12:03 am


It is more than a little ironic to hear conservative WASPs complain about under representation, of any sort.
It is also ironic that the complaint among conservatives is that Kagan doesn’t have judicial experience, given that they are the ones who blocked her nomination to the D.C. Circuit over 10 years ago. Of course the current Chief Justice had very little judicial experience when nominated.
As an Ivy-educated lawyer, I also don’t understand the criticism based on where she attended school. It is a populist fallacy that lawyers who graduate from such schools are somehow less “in touch” with the common man. That sort of thinking reminds me of populist rejection of well-accepted scientific views, discussed often on this blog.
As Dean at Harvard law, Kagan was also known as a campaigner against political correctness. So the comment above regarding political correctness doesn’t make much sense.
Kagan also has the respect of the bar — particularly those who practice at the appellate level.



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