Both Reuters and MSNBC are reporting that Solicitor General Elena Kagan will be the President’s nominee for the Supreme Court. I think Kagan is a wise choice for the President. She’s already been confirmed by the Senate for her current job, although a significant number of Republicans voted against her, but not a sufficient number that she could face a filibuster. Plus, as I noted in my previous article, she has never served as a judge – it will be good to have at least one member of the court who hasn’t served as an appellate judge (although as a former Dean of the Harvard Law School and Solicitor General, I don’t think anyone can honestly challenge her credentials). In an odd quirk of fate, she was nominated for a seat on the D.C. Circuit Court of Appeals by Bill Clinton at the end of his term in office, but the nomination lapsed without a vote being taken. The seat ended up going to future Chief Justice John Roberts. Go figure.
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Kagan is considered a moderate/liberal, and has been called a “consensus builder” by some observers. It will be interesting to see how she’s attacked. There have already been articles attacking her – from the left. Given her stance on unlawful combatants and executive power (she supports both), I can see why they’d complain. The left is mainly concerned that she doesn’t have a deep record.
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Personally, I would love to see her pull a reverse David Souter – be nominated by a Democrat and then drift to the right (Souter did the opposite). In any event, everyone better get prepared for yet another round of the typical silly season and Senatorial kabuki theater of a Senate Judiciary committee hearing on her nomination.
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May 09th by Brian S
She’s a socialist, right?
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I’m kidding. But I do wonder who will be the first person to say it over the coming weeks. My bet: a Republican in the House.
She’s a Socialist.
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You lose.
You may want to reconsider your endorsement of Ms. Kagan.
I have read a news report that Obama potential Supreme Court nominee, Solicitor General Elana Kagan, opposed opposed US Military recruitment on campus when she was dean of Harvard Law School. In 2003 I am told she wrote, “I abhor the military’s discriminatory recruitment policy.” It is “a profound wrong—a moral injustice of the first order.”
If the above report is correct, we have a so-called law professor and dean at the Harvard Law School who vents her anger at the US Military for the Don’t Ask Don’t Tell policy set not by the military, but by the US Congress?
Is her form of justice to punish “A” for the act of “B”? This is an interesting jurisprudence.
This sounds like a four year old kicking a table after stubbing a toe. Rodney Dangerfield, Jonathan WInters, or Groucho Marx would display more emotional stability and reasoning than Kagan if this is true.
So this is the type of shoot-the-messenger-constitutional reasoning we are to expect from a Justice of the Supreme Court?
Does Obama have any adults who advise him?
If this is her background, will Jim Webb or Mark Warner vote for her? Watching them on this nomination if it comes to pass will be sheer fun, especially if they support her.
Delegate Bob Marshall
If Sideshow Bob is against her, then I wholeheartedly support her.
Bob, as I noted over at NLS, I don’t think any one action should disqualify someone for the Court, particularly this one. Will I disagree with her for opposing military recruitment at Harvard Law while she was Dean, I sympathize with her stance on DADT.
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I don’t think she punished anyone by not allowing the recruiters on campus. The pitch is the same whether it’s done at the school or elsewhere. From my experience, the JAGs only do informational interviews anyway – it’s not like they would have been handing out JAG slots had they actually been there.
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In any event, you should take a look at her stances on other issues, as I noted in the post. I think she’s a potential ally on the Court for a number of key issues, such as the handling of the War on Terror. Those issues are, in my opinion, far more important than this issue.
Brian,
You really do not mean your first sentence. Or I hope you don’t. I could give you some disqualifying actions. Suppose she or any Supreme court nominee were guilty of perjury under oath as a witness in a trial?
And whether you or I sympathize with other of her policies is certainly secondary to other considerations.
If she can take out her policy disagreement on Military Recruiters for a policy which Congress sets, then her reasoning process and concept of justice is highly flawed. Did Harvard refuse federal money for law students loans, or JAG applicants? That is an emotional response to DADT, not a reasoned one. You want that kind of thinking, or rather the absence of cause and effect recognition on the US Supreme Court? I don’t.
Delegate Bob Marshall
Delegate Bob Marshall
Bob, I should have been more clear – one job related action or stance on an issue. Clearly, if she’d committed perjury, hired a nanny without paying her social security taxes, or killed someone, I would think she’d be disqualified.
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She was making a protest issue against a group that discriminates on the basis of sexual orientation, which was a violation of Harvard Law School’s policy that barred any organization from recruiting on campus if they had discriminatory policies. I know you don’t think DADT is a sexual orientation issue, but that’s how most folks view it, and that’s how she viewed it. As I said before, I don’t think she was taking her policy disagreement out on anyone. Barring JAG recruiters for a year or two until the Supreme Court found the Solomon Amendment constitutional did not likely have any kind of impact on their recruitment efforts. And as soon as the court found the law constitutional, she allowed the recruiters back.
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I am sure that we will hear both sides of this issue during the Senate hearings. I don’t know what she was thinking when she made this decision and I’m not willing to speculate about that – all I can go by is what she said at the time. As I said before, I don’t think this one action disqualifies her from the Court. Frankly, I think she’s the best we’re going to get from the President and I hope that our fellow Republicans in the Senate think long and hard about the far more liberal lawyers and judges Obama could have chosen.
Brian,
The Military DADT policy applies to ACTIONS, not thoughts or inclinations, but inclinations acted out. DADT is based on habitual actions which Congress found to be incompatible with military goals in defense of the Nation. Harvard is simply saying “orientation,” when they know or should know the DADT policy applies to “actions.”
That is hardly candor from Harvard’s allegedly best and allegedly brightest.
This is the kind of fuzzy thinking liberals are always using. Conservatives should be able to see through it.
I anxiously await Sideshow Bob’s lecture on how homosexuality is a choice, not a nature, so the DADT law is strictly against those who willingly choose to be gay and thus, are violating the law.
Bob, can I send you a small donation to run for the Senate in 2012 or Governor in 2013? You need to blog more about all of your great ideas and opinions.
I’m a little surprised that they chose (if indeed that is the decision) Kagan. I thought they were trying to find someone with no barnacles. As Delegate Marshall foretells, her response to DADT at Harvard will be enough for obstructionists to grab hold of and gum things up. It will be like Sotomayor’s “wise Latina” comment.
Having said that, Ms. Kagan is eminently well-qualified and will make a fine Justice if confirmed. She has shown herself to be an able advocate in her work as Solicitor General. I also agree that it is a good thing to break the pattern of constant drawing from the Court of Appeals bench
> She was making a protest issue against a group that discriminates
> on the basis of sexual orientation, which was a violation of Harvard
> Law School’s policy that barred any organization from recruiting on
> campus if they had discriminatory policies
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Did she prohibit the federal government from recuiting at Harvard Law? Specifically, did she prohibit Congress from recruiting at Harvard Law? It was Congress’s policy, NOT the military’s policy.
Cato, you don’t MEAN it.
I wish Howard Stern would cover this. He has always called for a lesbian on the Supreme Court. Didn’t CBS news rile up the Obama Administration by reporting on this?
Read her letter for yourself regarding recruitment on campus and within the Law School:
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http://www.law.harvard.edu/news/2005/09/20_recruiting.php
Really? You want to make this about DADT, a policy the overwhelming majority of Americans want repealed (even majority of *church goers* at that!) Bring it on.
RichmondDem,
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please do not confuse the comments of a handful of the fringe with what the majority of the GOP and GOP members of congress actually believe.
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anyone GOP with half a brain should be thanking god right now that she is the nominee, Obama could have picked a much worse person (and worse I mean far to the left).
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that being said, mr. marshall should not look a gift horse in the mouth. i find his comment regarding a screaming 4 year old ironic because that is similar to how he acted after making awful comments about mentally handicapped children.
jack,
your reasoning is a$% backwards. 1) when was the last time you have ever heard of ‘congress recruiting?’ 2) it is a DoD policy, albeit made policy by Congress, but none the less it is DoD policy. it does not extend to other departments, it is military.
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kagan’s letter pointed out that the military policy violated HLS’s policy and thus triggered them being asked to leave campus and not partake in HLS’s resources. what is appalling to a REAL conservative is the military and federal government forcing private institutions to do their bidding and allow them access to their facilities or risk losing money for scientific and medical research. this is no different from the federal government withholding transportation funds unless states repealed prohibition, a principle that i have people on many conservative blogs rail against.
The issue isn’t – or shouldn’t be – with DADT as a policy, but rather with Kagan’s attempt to hold the military accountable for it by violating the Solomon Amendment and denying military recruiters access to Harvard over it. The military doesn’t set that policy, Congress does and if she wanted to protest DADT then the correct target is the legislature, not the military.
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Brian, is there sufficient record of her stances on matters to make a reasonable guess about whether she’d pull the “reverse Souter” you mentioned or is she likely to pull even further left?
I really don’t see her drifting any further to the left. She is definitely a moderate given he positions and stances on criminal justice issues. I differentiate her positions on those from when she is “representing her client” the United States government. She, well Obama is google to get a lot if flack fromthe left because the hard left loons wanted a justice who was nearly identical in judicial philosophy to Stevens. From my own research she is pro death penalty and has solid positions on important criminal justice issues to where I don’t believe he beingnon the “left” of the court is going tk make her drift that way. She will definitely vote with the liberals on certain issues but there are others that she will be different from Stevens on issues like the death penalty and executive powers. I think Brian is correct in analyzing her opposition to DADT while at Harvard but that will be an extremely small portion of this confirmation process.
My guess is that Republicans won’t fillibuster given her more moderate stance compared to Stevens. Had Obama picked a nominee who was more similar to Stevens I could see them picking that fight, and rightfully so. Some of his sole dissents in many criminal procedure cases are really the textbook definition of radical.
No is she just a Socialist wannabe. Maybe a Jr, Socialists or Socialist intern. How about a run of the mill leftie?
“I would love to see her pull a reverse David Souter – be nominated by a Democrat and then drift to the right ”
Wishful thinking squared.
She looks like Rachel Maddows older sister. Maybe it is the hair, I had that same haircut when I was in 8th grade.
I don’t see her drifting further to the left (alas…) I think she will be not unlike Justice Breyer — reliably liberal on most issues, but just as he is more corporate to my tastes (we have enough people on the court looking out for corporate interests that we don’t need someone appointed by a Democrat) she will be for the expansion of executive authority, especially regards the cases likely to result from the War on Terror.
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So I’m not thrilled. I’m not unhappy about the pick, but I’m not thrilled, either.
Ric, I’m going by her testimony during her confirmation hearings for Solicitor General, as well as her handling of a number of cases as Solicitor General. I don’t think she’s a fringe liberal, and I don’t think it is likely she will drift left like Stevens, Souter and others have done.
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I think we Republicans need to think long and hard about how we handle this nomination. Considering that the other folks that Obama has lined up are far more liberal than she is, I think we’ve got the best choice we can expect out of this Administration – far better than Sotomayor – and we should probably not go all out opposing this choice. The alternatives are worse.
Brian,
You are absolutely correct. I know of a Federalist Society member who went to Harvard Law during her tenure as Dean. He thinks this is about as good as Republicans could get with a Dem President and Dem Senate. She is to the right of Stevens on criminal justice, 2nd amendment, and executive power issues. I predict she will be someone like O’Connor, a justice who will always go for the most minimal decision possible….which is exactly what anyone who claims to be “conservative” should want in a justice.
Has any justice ever moved to the RIGHT in on the Court in recent memory? If they move, they tend to move leftward, AFAIK.
Well, I think Breyer has moved to the right, but then, I’m starting from a position that most people actually on the right wouldn’t hold.
Contrary to what some conservatives insist about Ivy League elites, Harvard Law has a substantial tenured professorate that is very conservative. It isn’t the University of Chicago (or even the University of Virginia), but it also isn’t Yale or Berkeley. While the faculty is very political (on both sides), a successful dean there (as Kagan no doubt was) is someone who can deal with ideologues of each extreme.
I think what a lot of liberals are responding to with the pick is that we feel we are losing a voice for judicial liberalism without getting anything in return. If this pick were to replace, say, Breyer, then I’d feel better about it than I do because it’s Stevens. (In my world, Elizabeth Warren would have been the selection.)
Gretchen–
He’s saving the liberal pick for when Kennedy retires. The idea, I think, is that Kagan can bring the “Ohio” of the Court, Kennedy, to the left through persuasion.
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That said is it too much to hope that we can have someone appointed to the court that came from a public university, or at least a non-Ivy school? Someday? Please? This used to be rather common, but these days it seems like they all come from Harvard-Princeton-Yale, whether nominated by a Republican or Democratic President.
A Democrat President will never nominate someone who did not attend an Ivy. They are elitists and must have one of their own on the Court. They LOVE their Ivies!
(Other) LL, you obviously don’t know anything about American history, at all.
BTW, do you know the first person to use the phrase “Democrat Party”?
Lovettsville Looney, what schools did Alito, Roberts, Scalia, Kennedy and Thomas go to? Unless Yale is considered a branch campus of UConn, then they all went to Ivy League law schools.
With so many graduates of Regent University’s Law School having distinguished themselves it is hard to understand how one of them is not on the Court. Why so many Justices from second tier schools like Harvard and Yale? Maybe the next Republican president can nominate Monica Goodling to the Court.
Lets see, BA from Patrick Henry, MA from Liberty, JD from Regent. Would that do it for the teabaggers/Republicants these days?
No, local, YOU have it backward, as does Kagan. You protest the people that ENACT a policy you don’t like, not those SUBJECT to that policy.
> Has any justice ever moved to the RIGHT in on the Court in
> recent memory? If they move, they tend to move leftward, AFAIK.
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It has to do with deterioration of the prefrontal cortex (the logic and reason center) in old age. Just as the young are more liberal (before the prefrontal cortex is fully developed), so too do people get more liberal as they age, and their faculties fail them.
DC in general is really fixated on Ivy League degrees and military service. I’m not saying that you have to have either to advance, but I do think that, if you are under say, 40-45, having one or the other made breaking in a little easier. (Unless, of course, you were wealthy or connected through family, which are ways of breaking in that I can’t personally speak to.)
Delegate Marshall’s concerns might be reduced or eliminated if he reads yesterday’s Wall Street Journal piece by Dean Clarke, Dean Kagan’s predecessor at Harvard. It puts the DADT issue in a factual context that makes clear what happened. I’m a strong supporter of military recruitment and ROTC programs on campus. But, as Dean Clarke recounts, Harvard’s across-the-board policy of requiring all entities, civilian or military, that worked through the Harvard guidance office to sign non-discrimination statements was one that the Dept. of Defense could not, in good faith, comply with. As a result, Harvard and the military had found a workaround that permitted DoD recruitment under the auspices of the Harvard veterans student group. The passage of the Solomon Act caused the Air Force to challenge the workaround arrangement. That challenge led to the 8-0 Supreme Court decision, which, as it must, Harvard honored.
NoVA Scout, you must surely know that Marshall and Jack don’t care about context.
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Context is hard.
After having listened to a tape of her yesterday argue a case in front of the SC, she was admonished and schooled by both Scalia and Kennedy. The tone in both of their voices was , what in the hell are you talking about and who the hell let you in here. She is a legal lightweight. I don’t care what some Harvard buddy says, left , right or fence sitter.
Might I suggest you listen to her yourself, and listen to the entire debate not just some 30 second sound bite. If after that you believe her to be qualified then no one can help you.
Presenting argument before the Supreme Court and being a Supreme Court Justice don’t necessarily implicate the same skill sets (in my estimation – I haven’t done both so I could be wrong). I heard Kagan do her first Supreme Court argument as Solicitor General, and was favorably impressed with her advocacy skills. But of the current SC justices, my off-the-cuff guess is that only Roberts has ever appeared before the Court as an advocate. So I don’t think your listening to one of Kagan’s arguments gives you much to go on, Stone.
Tape? I have this picture of G in front of an old reel-to-reel smoking a Marlboro in a dark room lit only by one naked lightbulb. One hand occupied with the butt, flicking ashes, one hand on the buttons — play, stop, rewind, play — of the reel to reel…
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Every time I listen to SCOTUS arguments (online, by the way) the justices always sound grumpy, dismissive and pissed off (those that speak — I don’t believe Thomas has ever asked a question).
So I don’t think your listening to one of Kagan’s arguments gives you much to go on, Stone.
NoVA Scout
on May 12th, 2010
It speaks to her ability to think and make rational argumentsbolstered by the constitution. I have no ax to grind with her ( other than she looks like an older version Rachel Maddow ), she simply is a bit of a light weight ,legally speaking. I would compare her to Bushes pick
( her name escapes me ) that went down in flames, she too was not qualified.