It's Elena Kagan for SCOTUS Forum

[beef wellington]

She's a blank slate, with a few troubling tea leaves, and even her supporters concede that she is to the right of Stevens. Why settle for a nominee that could backfire so horribly when the Democrats have 59 Senate seats?

They don't have 59 liberal seats, as the Health Care Bill demonstrated. Obama isn't particularly liberal, and many Democratic Senators are less liberal than he is. I think you have unrealistic expectations of what is possible. I'm not thrilled by her, being an unabashed liberal myself, but I don't think the votes are there for someone much more liberal than Kagan. Hell, some people thought Diane Wood might have trouble getting through, and the fight itself uses up political capital.

So settle then. This is what I'm talking about. The left is willing to eat an endless amount of shit spooned out by Obama and other Democrats, thereby ensuring their continued irrelevance. The right threw a fit and got themselves an unabashed conservative justice, the left will take whatever they're given and like it.

They won't all like it, but I think you're really overestimating how liberal the Democratic party is. They really aren't that liberal. Please, throw a fit and call your Senator and tell her to as well, but I think characterizing this as the left taking something they don't really want is unfair. The left is a lot more centrist than you are. The liberal Democrats do throw fits, they threw a fit about Health Care and wouldn't have gotten anything passed if they hadn't stopped throwing a temper tantrum and voted for something that wasn't perfect but still better than the status quo. I just don't think a true liberal judge is feasible in the current political climate, and blaming that on the liberal faction of the Democratic party just seems absurd.

No, I understand how conservative Obama and other nationally elected Democrats are, believe me. But where is it etched in stone that they get to constantly piss on their base and suffer no ill consequences for it?

If I understand the bolded correctly, you're contending that Obama's base is ideologically fine with him moving the Court to the right?

[Mroberts3]

Not to get too political here, but I actually think politics should never be considered. I wish there was some way to ONLY get moderates in there.

Except moderates aren't apolitical -- they are just in the center of the current spectrum. Today's moderate is the next generation's cranky old conservative or aging hippie. The only way to fix the politics is if everyone agreed to simply vote in favor of any qualified candidate regardless of the political/legal viewpoints. Of course this will never happen (no matter who is in the minority in the Senate) so the president chooses someone that can be confirmed, they do the song and dance and we all go on with our lives.

[Tautology]

Nothing else is required by statute, but the next time someone who isn't a highly accomplished lawyer or judge you let me know.

Okay, Elena Kagan isn't a highly accomplished lawyer or judge.

. . . ?

No, I understand how conservative Obama and other nationally elected Democrats are, believe me. But where is it etched in stone that they get to constantly piss on their base and suffer no ill consequences for it?

If I understand the bolded correctly, you're contending that Obama's base is ideologically fine with him moving the Court to the right?

I didn't mean the left as in the left-wing base of the Democratic party, I mean the left as in the Americans who voted these people into office. Maybe we're just using that term differently.

[darknightbegins]

Yes. It is usually all about who you know to get on the Supreme Court to begin with, regardless of who the Prez or party is.

How does this comment even make sense in light of the conversation we were having about how she came to teach at Chicago? It's also absurdly absolute, there is much more to getting onto the Supreme Court than knowing the right people.

It was intended toward the Supreme Court discussion. And what is required to be a Court Justice other than knowing the right people? I think the Constitutional requirements are pretty laid back.

Nothing else is required by statute, but the next time someone who isn't a highly accomplished lawyer or judge you let me know.

How accomplished was Clarence Thomas? 1 year on the DC Court of Appeals? Chairman of EEOC?

[Aqualibrium]

How accomplished was Clarence Thomas? 1 year on the DC Court of Appeals? Chairman of EEOC?

Sounds like an accomplishment to me... It isn't like these people are riding their family name/connections as a path to power despite never doing anything even remotely spectacular in their adult lives...

[darknightbegins]

Guess you don't ask much from your Supreme Court Justices.

[Aqualibrium]

Guess you don't ask much from your Supreme Court Justices.

I hold them to a slightly higher standard than my Presidents.

[darknightbegins]

Only slightly? The worst a Pres can do is 8 years, Justices can be around for alot longer.

[Aqualibrium]

Only slightly? The worst a Pres can do is 8 years, Justices can be around for alot longer.

So what is the standard for determining how much experience is enough?


Is it one of those "I know it when I see it things?" Does it emanate from some penumbra?

[darknightbegins]

I don't know. I never claimed to have the answer. That is why I said it usually comes down to who you know.

[cigrainger]

Let's not go bandying about claims that she is 'not experienced'. She has had a pretty spectacular career:

- Clerked for Judge Abner Mikva of the DC Circuit
- Clerked for Justice Thurgood Marshall
- Three years as an associate at Williams & Connolly, the elite litigation boutique in DC
- Taught admin and constitutional at Chicago for two years
- In 93, served as special council to then Chairman of the Judiciary Committee Biden in Ginsburg's confirmation process
- Returned to teach at Chicago till 95
- Joined the Clinton Administration in 95 as Associate White House Council, then was put in policy positions (!) as Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council.
- In 1999, Clinton nominated her for the DC Circuit, but she never received a hearing
- Went back to teaching, this time at HLS, in 1999, and received tenure in 2001
- Dean of HLS in 2003 (and her time there is unanimously considered pretty stellar)
- Solicitor General in 2009, plus SCOTUS nomination talks for Souter's seat that eventually went to Sotomayor.

So, to recap: Appellate Clerkship, SCOTUS clerkship, elite litigation boutique, Professor at Chicago, Special Council to the Chairman of the Judiciary Committee, Associate White House Council, executive policy positions at the White House, a nomination to the DC circuit, HLS Professor reaching tenure in two years, Dean of HLS, Solicitor General of the US.

HOW is that not a distinguished career?!

I agree entirely that we lack data points, but some of these people saying 'oh, it's only who you know' are absurd. She is clearly an accomplished and capable lawyer, who has been able to excel in several different roles. As someone unabashedly pretty far left of the American center, I wish he had chosen someone more like Wood. But to argue that she's in some way not qualified is silly.

[Aqualibrium]

Let's not go bandying about claims that she is 'not experienced'. She has had a pretty spectacular career:

- Clerked for Judge Abner Mikva of the DC Circuit
- Clerked for Justice Thurgood Marshall
- Three years as an associate at Williams & Connolly, the elite litigation boutique in DC
- Taught admin and constitutional at Chicago for two years
- In 93, served as special council to then Chairman of the Judiciary Committee Biden in Ginsburg's confirmation process
- Returned to teach at Chicago till 95
- Joined the Clinton Administration in 95 as Associate White House Council, then was put in policy positions (!) as Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council.
- In 1999, Clinton nominated her for the DC Circuit, but she never received a hearing
- Went back to teaching, this time at HLS, in 1999, and received tenure in 2001
- Dean of HLS in 2003 (and her time there is unanimously considered pretty stellar)
- Solicitor General in 2009, plus SCOTUS nomination talks for Souter's seat that eventually went to Sotomayor.

So, to recap: Appellate Clerkship, SCOTUS clerkship, elite litigation boutique, Professor at Chicago, Special Council to the Chairman of the Judiciary Committee, Associate White House Council, executive policy positions at the White House, a nomination to the DC circuit, HLS Professor reaching tenure in two years, Dean of HLS, Solicitor General of the US.

HOW is that not a distinguished career?!

I agree entirely that we lack data points, but some of these people saying 'oh, it's only who you know' are absurd. She is clearly an accomplished and capable lawyer, who has been able to excel in several different roles. As someone unabashedly pretty far left of the American center, I wish he had chosen someone more like Wood. But to argue that she's in some way not qualified is silly.

exactly

[Revisionist]

They won't all like it, but I think you're really overestimating how liberal the Democratic party is. They really aren't that liberal. Please, throw a fit and call your Senator and tell her to as well, but I think characterizing this as the left taking something they don't really want is unfair. The left is a lot more centrist than you are. The liberal Democrats do throw fits, they threw a fit about Health Care and wouldn't have gotten anything passed if they hadn't stopped throwing a temper tantrum and voted for something that wasn't perfect but still better than the status quo. I just don't think a true liberal judge is feasible in the current political climate, and blaming that on the liberal faction of the Democratic party just seems absurd.

That's what he's saying - some liberals might throw fits, but in the end, they'll give up and fall in line just like they did on health care. The right didn't do that when Miers was nominated and they were rewarded with Alito.

If we can't get a liberal justice with the biggest Democratic majority in the Senate since the '70s, when can we get one? Bush got his nominees through with slimmer majorities.

[BlueCivic]

Come on people. All evidence points to Kagan being a mainstream Democrat politically.

You don't work for Michael Dukakis' campaign in 1988 and then in high level positions in two Democratic administrations without the people in power having a good idea of your political views.

It's true that her written record is thin but that does not mean that we cannot infer things about her politics.

[ozarkhack]

It's true that her written record is thin but that does not mean that we cannot infer things about her politics.

Probably right. But why not go ahead and be safe by picking someone with a track record??

Besides, I think the issue is less that folks fear she'll go all right-wing on the kind of issues/questions that have driven politics/culture war for last 30 years than it is that she seems more likely to favor a heavier-handed executive branch than those of us who like our civil liberties would prefer.

From one article exploring her background: "She would spell very bad news" if she became a Supreme Court justice, said Vince Warren, executive director of the Center for Constitutional Rights, which has long challenged Bush and now Obama detention policies. "We don't see any basis to assume she does not embrace the Bush view of executive power."

[NayBoer]

Come on people. All evidence points to Kagan being a mainstream Democrat politically.

You don't work for Michael Dukakis' campaign in 1988 and then in high level positions in two Democratic administrations without the people in power having a good idea of your political views.

It's true that her written record is thin but that does not mean that we cannot infer things about her politics.

I agree she's probably a Democrat, but the bolded is so not true. Political campaigns are about organizing and strategy, not personal philosophy. And it's not like they're going to make her take the NPAT before appointing her to political positions. Working in WHO policy and counsel, she just makes arguments for other people to decide on, and as Solicitor General she still just argues what the President wants her to. They'd be looking more for her qualifications than her ideology.

She's done a very good job of not flaunting any ideology, I'd guess part of ambition and part of temperament.

All of these positions look more for expressions of bad ideology, than expressions of good ideology. Not offending people is the best bet.

[NayBoer]

I wish there was some way to ONLY get [strike]moderates[/strike] people like me in there.

Fixed for what this statement actually means 99 times out of 100.

[procrastinator]

I mean, when things get too political, nobody wins. Look at the Keeler case in CA where the CA Supreme Court let that guy off the hook after killing his ex-wife's full-term baby b/c they didn't want to set abortion precedent. Yikes.

Completely agree. Was just trying to point out the idealistic aspect and lack of applicability of such a statement in our current system. I think every thinking person would agree with you.

However, every person (including judges) should be allowed and expected to have their own perspectives and prejudices to make decisions. Its unavoidable and if we tried to take that away from the justices, we'd have to have a league of legal textbooks as our highest courts.

More realistically, I'd like to see an attempt at bi-partisan elections. I suppose it'd all boil down to the same thing, but I'm not a fan of the constitution giving all that election power to the prez.

Yeah, good points. Neutrality should be sought by all judges. Be true to precedent as much as you can, look at the law from all angles, make the judgment. I guess I was just saying that the divisions will always occur. I do agree that a moderate stance can be a breath of fresh air. I fall on the left on a great many issues, but also know that the law as it stands should act as a moderating force that prevents judges from freewheeling, or disregarding past precedent like in... ahem... Parents Involved in Community Schools v. Seattle School District

Or, say, any case dealing with substantive due process or the IC clause circa 1937 after FDR bought the court.

[ozarkhack]

--ImageRemoved--

"Yeah! That's the ticket!"

[MJMD]

Much has been made of the fact that Stevens is leaving SCOTUS as the last Protestant on the Court, but is there anything to be made of the fact that he's also the last graduate of a non-Ivy League school? Ginsburg is the only SCOTUS Justice left who didn't graduate from Harvard or Yale, and she only went to Columbia (halfway through her Harvard degree) because her husband got a job in New York City.

[Topher]

Not to get too political here, but I actually think politics should never be considered. I wish there was some way to ONLY get moderates in there.

What on Earth is a moderate?

[Mr. Matlock]

Elie from ATL had her as a prof. I don't really care for Elie, but this is a great article:

http://abovethelaw.com/2010/05/elena-ka ... s-nominee/

[APimpNamedSlickback]

i dont understand, or even empathize with to the tiniest extent, all of the crying about school diversity on the court. i dont want ttt'ers helping to shape public policy.

trying to branch out a little and maybe pulling more people from say nyu instead of yale wouldnt exactly make the judiciary fundamentally any less of an elitist institution, and actively trying to get people from ttts just for the sake of doing so would materially compromise our interest in having the very best and brightest in those seats.

[Mr. Matlock]

Not to get too political here, but I actually think politics should never be considered. I wish there was some way to ONLY get moderates in there.

What on Earth is a moderate?

A person who is some where in between Michael Moore and Rush Limbaugh.

[Topher]

Not to get too political here, but I actually think politics should never be considered. I wish there was some way to ONLY get moderates in there.

What on Earth is a moderate?

A person who is some where in between Michael Moore and Rush Limbaugh.

Isn't that...everyone?

But in all honesty, if all we had wer "wonderful moderates" that only used precedent, then we'd still have separate schools for the races, laws on the books making it illegal to do gay acts or to have interracial marriages, and the right of the government to intern ethnic citizens if we're at war with their home country. Ya, moderates are definitely what we need.