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Tagged: Elena Kagan

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Republicans Come Out of Hiding

After weeks of virtual silence, Republicans are stepping up their public attacks on Supreme Court nominee Elena Kagan. And they are using some rather strange arguments. The new line of attack is that Kagan is incapable of being impartial because of her political/policy role in the Clinton administration. Senate Minority Leader Mitch McConnell, who on Sunday would not rule out a filibuster of Kagan, is leading the charge with a new narrative that Kagan is more of a “political operative” than a lawyerly type. McConnell cites memos that Kagan wrote about campaign finance reform while she worked for Clinton. Quoting McConnell from the Senate floor:

In other words, these memos and notes reveal a woman whose approach to the law was as a political advocate — the very opposite of what the American people expect in a judge.

Sen. McConnell’s logic would cast nearly every justice who ever served on the Court as an “advocate” seemingly incapable of being impartial. What Sen. McConnell — and frankly all senators, both Republican and Democrat — apparently needs to remember is that lawyers are supposed to be zealous advocates for their clients’ interests. While Kagan’s role in the Clinton White House was as a policy adviser and not as a lawyer, the role she played parallels the manner in which a lawyer represents a client. As Obama spokesman Ben LaBolt notes, Kagan simply gave Clinton advice “that reflected the president’s well-established views.” She worked to advance Pres. Clinton’s agenda, just like a lawyer works to advance his/her client’s interests. Most Supreme Court justices were lawyers who represented clients before they entered the judging profession.  They worked to advance their clients’ interests.

It is clear that Sen. McConnell and fellow Republicans are trying to dig up new criticisms of Kagan in the run-up to the confirmation hearings. But this line of attack is weak and would cast doubt on all of the sitting justices. Chief Justice Roberts and Justice Scalia worked to advance the interests of Republican presidents before they were judges. Justice Breyer was special counsel to the Senate Judiciary Committee, where he worked with then Chairman Sen. Ted Kennedy. And Justice Ginsburg worked to advance women’s rights as an ACLU litigator. All were simply doing their jobs — being advocates for their clients/bosses. Beyond these examples, several former justices, of course, served in explicitly political capacities, e.g., Justice O’Connor was a state legislator, some justices were senators prior to service on the Court, and Chief Justice Taft was president before joining the Court.

Photo credits:  Stephen Crowley/The New York Times

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Looking Good for Kagan

On Monday, I suggested that the military recruiters/Solomon amendment issue had the potential to cause problems for Kagan’s nomination because of the hot-button issues it evokes — support for the military and gay rights. The issue has not gained significant momentum among Republicans, which is, of course, a positive sign for Kagan going forward. As Tom Goldstein noted yesterday:

Three days into the nomination, not much has changed.  No Democrat has opposed Elena Kagan; no Republican has endorsed her.  No Senator or serious commentator has suggested that she won’t be confirmed, or that the nomination should or would be filibustered.

Moreover, in yesterday’s The Caucus (New York Times), Carl Hulse reports on positive impressions of Kagan from two key Republican senators — Scott Brown and Susan Collins. Regarding the military recruiters flap, Brown stated (quoting from Hulse’s article), “It was very clear to me after we spoke about it at length that she is very supportive of the men and women who are fighting to protect us and very supportive of the military as whole. I do not feel that her judicial philosophy will be hurting our men and women who are serving.”

Senator Collins also spoke highly of Kagan and suggested that the chances of a Republican filibuster would be low. Collins specifically invoked the “extraordinary circumstances” standard for filibustering judicial nominees that was brokered by the Gang of 14 a few years back, stating, “At this point, I do not see the extraordinary circumstances that I use as a standard to determine whether to filibuster a nominee.”

With these remarks from two key Republican senators, you would have to think that Republicans will likely leave the Kagan nomination alone. There is always the possibility that another issue will arise or that existing potential problems will gain traction with Republicans. But given the lack of “buzz” over controversial issues in elite discourse, things are looking good for Kagan.

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Courting Kennedy

[Note: This essay is cross-published on the blog Dissenting Justice.]

President Obama and other supporters of Elena Kagan have argued that she has the capacity to form coalitions with conservatives, especially Justice Anthony Kennedy — the Supreme Court’s lone swing vote. There are a number of underlying assumptions to this argument, including that Kennedy’s opinions are malleable on a significant number of issues and that a colleague on the bench can push him on those malleable questions.

There is certainly some legitimacy to these assumptions. Political scientists who research the Court have found that ideological moderates are among the most malleable members of the bench. Furthermore, Sandra Day O’Connor and David Souter most likely influenced Kennedy in the influential case Planned Parenthood v. Casey, which upheld Roe v. Wade– even as it opened the door to far more intrusive regulations of abortion. These observations, however, do not demonstrate that Kagan or any other future justice can wield influence upon Kennedy (or other conservatives).

First, it is unclear whether Kagan herself is a progressive or a political moderate, like Kennedy or O’Connor. Her academic writings just do not provide enough insight to place her definitively within a particular judicial camp.

Furthermore, supporters of the idea that Kagan can move Kennedy discount the substantial role that other factors play in shaping judicial opinion. The positions held by the Executive, Congress, social movements and voters all impact judicial decisionmaking, and according to the academic literature in this area, moderates are more susceptible to these external influences than others. Viewed in this light, Kennedy’s vote to uphold Roe could reflect the fact that a majority of voters believe in the right to terminate a pregnancy. Similarly, his vote against “partial-birth” abortion could relate to the fact that a majority of voters oppose late-term abortion.

Of course, Kennedy’s own ideology, Court precedent, the facts of each case, arguments of legal counsel, and debates with other justices likely influence Kennedy’s opinions as well. But the assertion that Kagan can serve as a consensus builder fails to acknowledge the host of other factors outside of debates with colleagues that substantially impact judicial opinion.

People who believe that Obama should appoint someone who can “flip” Kennedy have a limited understanding of the dynamics of judicial decisionmaking. They reduce it to an intellectual exercise where the “best argument” combined with grace and warmth dictate outcomes. Also, as Dalia Lithwick argues, liberal advocates of a Kennedy pal affirm a myth that “conservative judges closely read the Constitution and apply the law, while liberals stick a finger in the wind and then work the room.” Both camps, however, are motivated by ideology and external political factors. This reality makes the search for someone who can sway Kennedy a bizarre calculation for a nominee to the Supreme Court.

Note: Other legal commentators have made similar arguments. See:

Is Kennedy Easily Manipulated

Asking “Who can sway Kennedy?” is no way to pick Justice Stevens’ replacement.

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Mike Allen Predicts 65 Yes Votes for Kagan

In today’s Playbook, Mike Allen (of Politico) predicts that Kagan will receive 65 votes in favor of confirmation. Part of the basis for his prediction comes from the roll-call vote on her nomination for Solicitor General. Seven Republicans voted in favor of her SG nomination:  Coburn (OK), Collins (ME), Gregg (NH), Hatch (UT), Kyl (AZ), Lugar (IN), and Snowe (ME). The vote was 61-31 (7 senators — 4 Dems, 3 Repubs — did not vote).

While the vote on Kagan’s SG nomination can help guide a prediction on the vote for her Supreme Court nomination, let’s remember that voting for a lifetime appointment on the Supreme Court and voting for a political appointment in the executive branch are two entirely different beasts. In short, we should not assume that because a senator voted for Kagan for SG that s/he will definitely vote for her Supreme Court nomination. To be fair, Allen does not automatically assume that all 7 Republicans who voted for her SG nomination will vote for her Supreme Court nomination. But of the 7, he predicts that Coburn, Hatch, and Kyl will vote no and the remaining 4 will vote yes.

Christopher Snow Hopkins of the Ninth Justice has written a compelling article on this topic. Sen. Hatch’s and Specter’s remarks — quoted from the article below — are particularly relevant:

Sen. Orrin Hatch, R-Utah, promised a thorough evaluation of Kagan’s legal career, as well as her judicial philosophy, which he identified as “the more important qualification.” But he cautioned that his support for Kagan’s nomination to solicitor general last year was no guarantee of “her qualifications for the Supreme Court or my obligation to support her.”

Sen. Arlen Specter, D-Pa., who voted not to appoint Kagan as solicitor general, said that he would consider voting for her this time around depending on her testimony on such issues as executive power, warrantless wiretapping, voting rights, congressional rights and a woman’s right to choose.

“I voted against her for solicitor general because she wouldn’t answer basic questions about her standards for handling that job,” he said. “It is a distinctly different position than that of a Supreme Court justice.”

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Kagan and Executive Power

Much of the elite discourse regarding Kagan’s nomination has centered on the military recruiters/Solomon Amendment issue, Kagan’s lack of judicial experience, her scholarly record (some calling it rather thin), and her views on executive power. SCOTUSblog has summarized (see here as well) many of the immediate reactions. Conservatives are critical of the first two items, while many liberals are concerned about Kagan’s views on executive power, worrying she is too willing to grant the executive branch broad discretion in areas such as questioning terrorism suspects. In short, liberals worry that Kagan will propagate the Bush-Cheney vision of executive power.

David Fontana has written an interesting opinion piece in Politico about what we might expect from Kagan on issues of executive power. Fontana’s article will certainly not alleviate concerns that liberals have about Kagan.

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Will Republicans Filibuster Kagan’s Nomination?

Politics is messy and complicated, and it seems like it has gotten extra messy since Obama took office. On many issues on the political agenda, Republicans are united against President Obama. Killing bills requires that Republicans maintain their 41-member “opposition coalition” in the senate.

Tom Goldstein at SCOTUSblog discusses what we can expect from senate consideration of the Kagan nomination, both in terms of process and substance. A topic that hasn’t received enough attention, however, is whether the war between Obama and the Republicans will carry over to the Supreme Court nomination. Will Republicans filibuster Kagan’s nomination? With the midterm elections coming up and the congressional session ending in December, would it be tactically smart for Republicans to delay confirmation?

Some considerations:

1.  Republicans will likely pick up seats in the senate as a result of the midterm elections. Republicans may be thinking: Let’s make Obama nominate someone in a new political context in January — one that will likely be more favorable toward Republicans. Force his hand and make him renominate Kagan (or someone else) in, say, a 55-45 senate instead of a 59-41 senate. Obama might even back down and change his nomination.

2. What basis would Republicans rely on for delaying Kagan’s nomination? Answer: the military recruiters/Solomon amendment issue. I believe that this issue, if framed effectively by Republicans, could become a significant obstacle to Kagan becoming a justice. Think of the hot-button nature of this issue: pro- versus anti-military in the context of a continuing war on terror and the issue of the U.S.’s volunteer army having a hard time maintaining numbers.  Add to this one of the most polarizing issues in American politics: gay rights. Republicans could portray Kagan as anti-military and overzealous in her advocacy of gay rights. This portrayal of Kagan as an extremist on two hot-button policy dimensions would provide plenty of ammo to delay, and perhaps quash via the filibuster, her nomination. As a result, Obama would be forced to either renominate Kagan or find someone else who could muster the 60 votes necessary to proceed to an up-or-down vote.

3. What about the issue of having an 8-member Court? Having an 8-member Court for the start of October Term 2010 would benefit conservative interests. The Court would have 4 solid conservative votes, Kennedy (who has become more solidly aligned with the four more staunch conservatives), and the 3 remaining liberals. Having a vacancy on the Court would not bother Republicans on policy grounds. But if Democrats effectively emphasize the importance of filling a vacancy as soon as possible, perhaps Republicans would relent. As a side note, Justice Stevens could have made this vacancy issue moot had his retirement been conditional on the confirmation of his successor, which is what Justice O’Connor did (recall that she did not step down until Alito was confirmed).

While the chances of the Republicans delaying or even killing Kagan’s nomination are probably small, I believe it is a real and distinct possibility. Because of the fiery policy issues that it evokes, Kagan’s “military recruiters problem” provides an ideal vehicle for Republicans — if framed effectively — to wreak havoc on her nomination.

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More on Kagan….

While many people know the general career path of Supreme Court nominee Elena Kagan, Tom Goldstein at SCOTUSblog.com has written an in-depth profile of Kagan that is extremely informative.

Something I found particularly interesting (quoting from the SCOTUSblog piece):

In a 1995 review of Stephen Carter’s book on confirmation hearings, “Confirmation Messes, Old and New,” Kagan criticized senators for failing to ask, and nominees for refusing to answer, questions about their views on specific issues.  Senators ought to dig deeply, she contended, asking straightforward questions about both the nominee’s judicial philosophy and her substantive views on constitutional issues: “The critical inquiry as to any individual similarly concerns the votes she would cast, the perspective she would add (or augment), and the direction in which she would move the institution” (934). Nominees could be asked about their views on particular issues that the Court regularly faces, such as “privacy rights, free speech, race and gender discrimination, and so forth” (936). On this view, a nominee ought to refrain only from expressing a “settled intent” to vote a particular way on a particular case that might come before her.

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Will Kagan be the Next Supreme Court Justice?

First, I’m thrilled to be guest blogging at Concurring Opinions. I look forward to an illuminating conversation regarding the Supreme Court’s next justice.

Mike Allen at Politico reports that, based on White House sources, Elena Kagan will be the next Supreme Court justice (thanks to Dave Hoffman for sending the story). Author of the reliable “Playbook” on Politico, Mike Allen is a force to be reckoned with. Of course, once word leaked that Kagan was the one, the White House sought to diffuse the rumors, claiming the president has not yet made his decision. This leads to speculation, of course, over whether the White House is floating a test balloon. They may want to test the reaction to hot-button issues like Kagan’s opposition to military recruiters at Harvard, which would undoubtedly be a dominant theme in a Kagan confirmation process.

My prediction for the next justice, which I realize is probably now incorrect given the latest developments, was Judge Diane Wood.  Back in December, Mike Sacks at First One at One First made a compelling case for Judge Wood. Above the Law also makes an in-depth argument for Wood. In addition, the New York Times had an interesting story a few weeks ago about Judge Wood’s persuasive abilities, at times even winning over her conservative — and legendary — colleagues, Judges Posner and Easterbrook.  That story further convinced me that Wood would be the one. President Obama may see her as a potentially persuasive force on a polarized Supreme Court. But she is widely perceived to be more liberal than Kagan, and she has an established judicial record. Though I will say that if a Kagan confirmation process turned almost completely on the military recruiters issue, then Kagan is going to be perceived as quite liberal and painted as extreme in her views. So in the end, who would really be perceived as more liberal once the confirmation process starts gaining momentum? Kagan or Wood?