Hillarysworld

Jen the Michigander · SuperModerator

Obama chooses Kagan for Supreme Court (AP 5/10/10)

freespirit · Moderator

Glad to see another female nominee. Knowing nothing about her, no comment about this particular female - maybe a good choice, maybe not. I'm sure we'll be very familiar with her and her suitability to serve, or lack thereof in a few weeks.

In spite of the fact that Obama has made yet another so-called historic move by potentially positioning the court to have more female justices than in any other time in history, he, IMO, has not rectified the deficit of females in cabinet and other positions. We've discussed previously about his tendency to exclude women both in private gatherings and in public positions, and the speculation that this signals that he feels a certain level of discomfort with women who have power. If, in fact, he does either see women as less capable or as threatening, placing one on the court gives him the opportunity to appear to support the cause of women, while not actually placing himself in a position to deal directly with them. Obviously, he won't be in direct interaction with, or considering advice from a supreme court justice.

Best of both worlds for BO - appearing to advance the cause of women, while avoiding the necessity of dealing with them.

Not giving BO enough credit? Maybe - but, tough sh**. After his actions of 2008, he could carry a woman on his back, swimming across the Potomac to ensure she was placed in a position of leadership, and it still wouldn't make up for his stealing the nomination from the ONE WOMAN, the one person who could have actually brought this country back to health and safety.

Building 4112 · Moderator

I guess this is a wait and see. Glenn Glenwald did a piece on her last week, and like Obama she doesn't have much of a record, as a matter of fact Glenn calls her
a "blank slate".

I agree freespirit, tough shyt.

-- Edited by Building 4112 on Monday 10th of May 2010 09:55:28 AM

Sanders · Diamond

I was hoping for Diane Wood as she is a mother. We have had female SCOTUS judges but getting a mom in there seems to be a challenge!

The saving grace here is Kagan was formerly a Pres.Bill Clinton appointee and is likely to have an easier go of confirmation - or so say most articles. Also heard that she has been a tough prosecutor. Cannot seem to find much on her positions... yep, 'blank slate' in that regard but perhaps that is something else that will help her get through the nomination easier.

I agree, nothing makes up for May 31, 2008. NOTHING!

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Here is an article I read earlier this morning

The Ten Biggest Issues Elena Kagan Will Face

From 'don't ask, don't tell' to her beliefs on executive power.

Tom Goldstein
view bio
The Ten Biggest Issues Elena Kagan Will Face

Kagan Revolution

Living Without Stevens
May 9, 2010 | 11:45 pm

Tom Goldstein is a partner at Akin Gump Strauss Hauer & Feld, and lecturer at Stanford and Harvard Law Schools. He is the founder of SCOTUSblog, where this piece was originally posted.

Here is how I think the nomination process is likely to play out. I divide it into process and substance.

First, the process: Note the relationship between Monday’s announcement and the Senate calendar. There are seven weeks between Monday and June 28. Six to seven weeks is traditionally regarded as the minimum amount of time between a nomination announcement and hearings before the Senate Judiciary Committee. June 28 marks the last week the Senate is in session before its July 4 recess, which runs from Saturday, July 3 to Sunday, July 11. So, tomorrow’s announcement is timed to permit hearings to be conducted prior to the recess, if (and it’s a big if) the Senate Judiciary Committee agrees.

Whether they will agree will depend on a number of factors. Kagan’s relatively short paper trail--note the contrast with the nearly two decades of decisions by Sonia Sotomayor--means there is less to review, and thus less time is required prior to the start of hearings. Kagan was also recently confirmed by the same Committee as Solicitor General.

Senate Democrats will prefer to move the process forward quickly for two reasons: so that Kagan is not “left hanging” for nine weeks before she appears before the Committee; and so that the nomination can be moved forward to make room in the calendar for legislative efforts. On the other hand, Republicans, as the opposition, will prefer delay because as more time passes there is a greater chance that something will emerge that justifies defeating (or at least undercuts) the nomination.

Also important will be the speed with which the administration produces documents--not only the nominee’s questionnaire to the Senate but also the documents it intends to produce from Kagan’s time in the Clinton Administration. A genuine fight over materials could lead to a delay.

Two recent nominations provide guideposts. Justice Breyer was nominated on May 13, 1994, and his hearing commenced on July 12. Justice Sotomayor was nominated on May 26, 2009, and her hearing commenced on July 13. Thus, hearings on both of those nominations were held after the July 4 recess. But again, Kagan has a significantly less voluminous record than either Breyer or Sotomayor.

All in all, I expect that the hearings will be held in the week of June 28. That schedule creates some awkwardness: it is likely the same week that the Court will finish its Term. The Court ends the Term when it completes its decisions; there is no fixed date. But by tradition, the Court will sit at least one day that week, issuing its final (and often, most controversial) decisions. The week will also by definition include Justice Stevens’ final appearance on the bench.

To provide a little too much detail about the Court’s calendar: this year, the Court is very likely to sit on Monday, June 28, [snip].

If the hearings commence on June 28 and the Court finishes its Term that same day, the conflict won’t be tremendous. The first day of the hearings is generally taken up mostly by the Senators’ opening statements. The Judiciary Committee could also start the proceedings that day at noon, rather than in the morning. In terms of the vote, expect that Kagan will be voted out of committee by a vote of fourteen to five, with all twelve Democrats and two Republicans in favor. The Committee is composed of a lopsided twelve Democrats and seven Republicans. In the past five Supreme Court nominations, only one Senator of the nominating President’s party has voted against his nominee. All the Democrats other than Arlen Specter voted to confirm Kagan as Solicitor General, and all are sure to vote to confirm her now. At the time that Specter voted against Kagan, he was a member of the Republican Party; subsequently having switched parties and now facing a very difficult primary election, it seems extremely likely he will endorse her.

That leaves the Republicans. Three Republicans on the Committee voted to confirm Kagan as Solicitor General: Hatch, Kyl, and Coburn. Graham did not vote. Sessions, Grassley, and Cornyn voted against her nomination. Of this group, I expect that Hatch (who has shown significant deference to Presidents in their nominations, notwithstanding that he did vote against Sotomayor) and Graham (who has tried to serve as a bridge between the parties in this area) will vote to confirm Kagan. But it would be extremely close and would depend on her performance at the hearings, as controversy over executive power and habeas corpus could cause both to vote against her.

I expect that Kyl and Coburn will conclude that a different standard applies to a Supreme Court Justice and ultimately vote against her, pointing to their votes for Kagan for Solicitor General as evidence of the fact that they do not base their votes on purely partisan grounds.

Then the nomination will proceed to the full Senate, where Kagan will be confirmed before the end of July.

[snip]

The premise of my vote count is that the Kagan nomination won’t do anything to reverse the trend towards the partisan polarization of Supreme Court confirmations.

In my opinion, there isn’t a substantial basis for the opposing party to view the nominations of John Roberts and Elena Kagan very differently. Both nominees had served in prior administrations, including in the Solicitor General’s Office in senior positions, and were widely respected for their intellects; neither was regarded as an ideologue. But Roberts received 22 Democratic votes, and as I said I think Kagan is likely to receive only 6 Republican votes. (For conservatives who point to John Roberts’ time on the D.C. Circuit as a distinguishing feature, I note only that he was not a court of appeals judge for very long and offer up the alternative analogy of William Rehnquist, who joined as an Associate Justice without any judicial service.)

I believe that the more recent fight over the nomination of Samuel Alito (who received only 4 Democratic votes), and the soured relationships in the Senate more broadly, will drive the vote totals on a Kagan nomination, far more than the substance of her views. For that reason, although Kagan will have a number of prominent Republican supporters--for example, Charles Fried, Jack Goldsmith, likely at least one former Republican Solicitor General, and perhaps Miguel Estrada (a possibility, given that he endorsed her nomination as Solicitor General)--I doubt that will make much (if any) difference. That is particularly true because, as I discuss below, the most significant developments in the understanding of Kagan’s record in the coming days will harden the traditional ideological battle lines.

Continues @ The New Republic

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Here is an article posted in NRO which is a more conservative opinion outlet.

Supreme Court Nominee Elena Kagan [Ed Whelan] Monday, May 10, 2010

It’s now being widely reported that later this morning President Obama will announce his decision to nominate Elena Kagan to the Supreme Court.Drawing on my many previous Bench Memos posts, I offer some initial comments on a Kagan nomination:

1.I have plenty of respect for Kagan’s intellect and ability, and she deserves considerable credit for her tenure as dean of Harvard law school, including for her generous treatment of conservatives, which has earned her considerable goodwill.But …

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 has only 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.

Continues @ NRO

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And this article is quite good.

Untried, Untested, and Ready

Elena Kagan's youth and judicial inexperience recommend her for the Supreme Court.

By Emily BazelonPosted Monday, May 10, 2010, at 12:10 AM ET

Read @ Slate.com

-- Edited by Sanders on Monday 10th of May 2010 11:37:26 AM

Sanders · Diamond

Kagan's Notable Statements and Writings (NYTimes 5/9/10)

Constitutional Theory

In her testimony during her confirmation for solicitor general, Elena Kagan wrote: “I think a judge should try to the greatest extent possible to separate constitutional interpretation from his or her own values and beliefs. In order to accomplish this result, the judge should look to constitutional text, history, structure and precedent. Relating these views to the position for which I am nominated, I think these kinds of arguments also are most successful in advocacy before the courts in constitutional cases. ... The Constitution generally imposes limitations on government rather than establishes affirmative rights and thus has what might be thought of as a libertarian slant. I fully accept this traditional understanding, and if I am confirmed as solicitor general, I would expect to make arguments consistent with it.”

Continues @ NYTimes with links to related documents

Lanny Davis: Kagan Is A "Strict Constructionist"

Former Clinton White House adviser Lanny Davis says Kagan "takes the view of the constitution as a restrictive document."

Link to RCP Video clip of FOX News interview 5/10/10

-- Edited by Sanders on Monday 10th of May 2010 02:46:56 PM

Sanders · Diamond

Read @ The Moderate Voice

Some Must Read Roundups and Must Watch Videos About Elena Kagan

Posted by JOE GANDELMAN, Editor-In-Chief in Law, Politics, May 10th, 2010

Sanders · Diamond

Read @ CSMonitor.com

Elena Kagan: Would she embody empathy as a Supreme Court justice?

President Obama praised Elena Kagan for her intellect and passion, but he only hinted at the quality he earlier deemed an essential ingredient in a Supreme Court justice: empathy.

By John Paul Rollert / May 10, 2010

New Haven, Conn.

Silence can be telling. Look no further than the remarks President Obama made this morning on the qualities that will make Elena Kagan an outstanding Supreme Court justice. Those that you would expect to hear from any president – “independence,” “integrity,” “fair-mindedness” – were all there.

Missing, however, was the quality that Mr. Obama last year called “an essential ingredient for arriving at just decisions.” That quality is empathy, a word the president has used to call attention to the limits of the written law in difficult cases and to the powerful role experience can play in deciding them.

Obama first praised the importance of judicial empathy during the nomination hearings of Chief Justice John Roberts. Then the junior senator from Illinois, he was prompted by Mr. Roberts’s opening statement, which attempted to defuse speculation about how his personal politics might color his decisions by likening the work of a judge to that of a baseball umpire.

“Umpires don’t make the rules,” Roberts announced, “they apply them.”

Judge Richard Posner, a Reagan appointee and perhaps the most celebrated mind on the appellate bench, said that neither Roberts nor “any other knowledgeable person” believes that the rules Supreme Court justices apply “are given to them the way rules of baseball are given to umpires.” Obama certainly did not. However, he did grant that “95 percent” of the cases that come before the court could be settled by “basic precepts” that any skilled judge adheres to, including respect for precedent, judicial modesty, and impartiality.

That leaves 5 percent, the “truly difficult” cases where a justice has to resolve some ambiguity in the law and cannot rely on “basic precepts” alone. When confronted with such cases, justices have often looked beyond the law to the lessons of experience.

Obama himself has approvingly cited Oliver Wendell Holmes’s famous dictum, “The life of the law has not been logic; it has been experience.” What Holmes meant is that, from the vantage point of history, the development of the law is not a matter of some mathematical theorem slowly and inexorably yielding its logical conclusion. Rather, it is the fitful work of human hands, of the men and women who create and interpret the law struggling to adjust it to the evolving imperatives of everyday life.

This is not pretty work.

It certainly lacks the elegance and analytical certainty of a mathematical proof, so it is not surprising that many people regard experience as too vague and unreliable to be of proper use to a judge. Yet justices like James Wilson, Benjamin Cardozo, and Sandra Day O’Connor, in addition to Holmes, have all pointed to experience as providing the kind of wisdom a judge must rely upon in cases where the written law falls short.

In fact, Justice O’Connor has gone so far as to express her belief that “At the end of the day, a wise old man and a wise old woman reach the same judgment.”

The key word here is “old,” for it highlights O’Connor’s faith in the experience that comes with age, and the wisdom it provides for.

Obama puts his faith in the type of experience that comes from empathizing with others, particularly those whose lives are different from our own. Empathy, as the president defines it, is not simply “a call to sympathy or charity,” it is “something more demanding, a call to stand in somebody else’s shoes and see through their eyes.”

As applied to the Supreme Court, the practice of empathy shapes how a justice resolves disputes involving affirmative action, abortion, gun rights, campaign finance reform, and other “truly difficult” cases where the law presents more than one option for adjudication, or no clear option at all. Moreover, like O’Connor, the president suggests that the experience of practicing empathy, of seeing the world through the eyes of other people, lends itself to a shared wisdom, one in which we are “forced beyond our limited vision” in order “to find common ground.” (Emphasis added)

Continues @ CSMonitor.com

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This is an excellent observation, and a very good article. I do hope that empathy is part of what she brings to the conference. This is one more reason why I was actually looking for a woman with children...

BTW, this morning, while watching CNN, I saw an advertisement funded by the Coalition for Constitutional Values (www.constitutionalvalues.org), touting Obama's selection of Kagan.. and they had a family portrait of Kagan with her parents and two brothers. Here it is I found it online at their website.

Anyway, I hope to see some empathy when she has to make her calls in critical cases.

[added clarification on her family portrait]

-- Edited by Sanders on Tuesday 11th of May 2010 07:18:33 PM

Sanders · Diamond

I had to share this perspective of David Brooks... a bit different frm what we have heard elsewhere, but goes towards that void in specificity in Elena Kagan's positions.

What It Takes

David Brooks, May 10, 2010

Excerpt:

There’s about to be a backlash against the Ivy League lock on the court. I have to confess my first impression of Kagan is a lot like my first impression of many Organization Kids. She seems to be smart, impressive and honest — and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.
Link to NYTimes.com

Sanders · Diamond

Elena Kagan, In Her Own Words (Whitehouse 5/11/10)

Sanders · Diamond

Read @ NYTimes.com

Growing Up, Kagan Tested Boundaries of Her Faith

By LISA W. FODERARO, Published: May 12, 2010

Elena Kagan was a star pupil in her Hebrew school on the Upper West Side. So it was not too surprising after she turned 12 that she wanted to mark her coming of age with a bat mitzvah.

The only problem was that the rabbi at her Orthodox synagogue, Shlomo Riskin, had never performed one.

“Elena Kagan felt very strongly that there should be ritual bat mitzvah in the synagogue, no less important than the ritual bar mitzvah,” Rabbi Riskin said, referring to the rite of passage for 13-year-old boys. “This was really the first formal bat mitzvah we had.”

But while Elena, the brainy, self-assured daughter of a lawyer and a schoolteacher, asked to read from the Torah on a Saturday morning, just as the boys did, it was not to be. Instead, her ceremony took place on a Friday night, May 18, 1973, and she read from the Book of Ruth, which she also analyzed in a speech.

Long before she became the first female dean of Harvard Law School and the first woman to serve as solicitor general, Ms. Kagan, now a nominee to the Supreme Court, was questioning and testing the boundaries of another institution: her religion.

Feminism had just begun to percolate in Orthodox congregations, though it was starting to transform Conservative Judaism, where in 1972 a group of women founded Ezrat Nashim, which can be translated as women’s section or women’s help, and petitioned Conservative leaders for equality. Girls in Reform and Reconstructionist synagogues, and in a few Conservative ones, were already reading from the Torah during bat mitzvah ceremonies.

Continues @ NYTimes.com
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I am delighted to read this. This shows that she truly believes in and stands up for her rights as a female and equal... and does so respectfully, and knows to push the boundary just enough to make progress in the correct direction. She knows how to stand up for herself, and along the way for all women. That's terrific news for women.

Sanders · Diamond

Read @ NYTimes.com

Kagan’s Link to Marshall Cuts 2 Ways

By CHARLIE SAVAGE, Published: May 12, 2010

WASHINGTON - In the spring of 1988, Justice Thurgood Marshall assigned a clerk, Elena Kagan, to write a first draft of his opinion in a case considering whether a school district could charge a poor family for busing a child to the nearest school, which was 16 miles away.

A majority on the Supreme Court ruled that the busing fee was constitutional. Justice Marshall, who was 80, was incensed and wanted a fiery dissent. But the 28-year-old Ms. Kagan, now a Supreme Court nominee, thought her boss’s legal analysis was wrong.

Ms. Kagan, recalling the incident in a 1993 tribute after his death, wrote that after she told him that “it would be difficult to find in favor of the child” under legal doctrine, he called her a “knucklehead.” He “returned to me successive drafts of the dissenting opinion for failing to express — or for failing to express in a properly pungent tone — his understanding of the case,” she wrote.

Because Ms. Kagan has never been a judge and has produced only a handful of scholarly writings, clues to her philosophy are rare. In that vacuum, liberals and conservatives alike are attributing special significance to her clerkship year with Justice Marshall, who led the civil rights movement’s legal efforts to dismantle segregation before becoming a particularly liberal Supreme Court justice.

But while Ms. Kagan, a former board member for the Thurgood Marshall Scholarship Fund, clearly relished the experience and admired the justice as a historic figure, she appears to have had a far more ambivalent attitude toward his jurisprudence, according to a review of his papers at the Library of Congress, her comments over the years about him and interviews with her fellow clerks and colleagues.

In analyzing why Justice Marshall was adamant about siding with the poor family in the busing fee case, for example, Ms. Kagan explained in her tribute that he “allowed his personal experiences, and the knowledge of suffering and deprivation gained from those experiences, to guide him.”

But Ms. Kagan did not share those experiences, notes Charles J. Ogletree, a Harvard law professor who heads an institute named after Justice Marshall’s mentor, Charles Hamilton Houston, and who has talked over the years with Ms. Kagan, a former Harvard Law School dean, about her clerkship.

“It’s absurd to compare Elena Kagan’s judicial philosophy to Thurgood Marshall’s philosophy,” Professor Ogletree said. “Their times and life experiences are different. They lived in different worlds. The reality is that Elena Kagan learned a lot from Justice Marshall, but she will not be overly influenced by Marshall or anyone else. She is her own person.”

Read @ NYTimes.com
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Quite interesting. Frankly, I am learning more about Justice Marshall than about nominee Elena Kagan! But I like it that she is willing to be assertive with authority figures.

I love it when a judge takes a strong stand in a socially liberal direction while s/he is the minority/dissenting voice. Respectfully dissenting with the majority opinion and expressively (acrymoniously, lol) making your position clear is quite an art form. I love to read dissents.

Anyway, I hope some of Elena Kagan's writings for Justice Marshall surface so we get more insight into her writing and thoughts.