Kagan gets the nod

[MTT TL]

So it is official now. Kagan has the nomination for SCOTUS. With control of the senate a lock she should be seated within a month. Wonder if Obama will get the media push back that Bush got for nominating a political crony instead of a judge?

Complete lack of case law precedent and rulings is disturbing from my standpoint. Considering who she has worked for in the past I am guessing not a friend of the 2A?

Regarding gun laws, Kagan says she has “no reason to believe that the court’s analysis was faulty” in the 2008 Supreme Court case striking down the District of Columbia’s strict gun-control laws. And she added that her office would likely “continue to defend” against constitutional challenges on various federal regulations concerning firearms.

Not sure what that even means.

Obama picks Elena Kagan for Supreme Court
With control of 59 votes in the Senate, Democrats could win confirmation
May 10: President Obama nominates current Solicitor General Elena Kagan to the Supreme Court.

Why nominate somebody who isn’t a judge?

WASHINGTON - President Barack Obama nominated Solicitor General Elena Kagan to the Supreme Court on Monday, declaring the former Harvard Law School dean "one of the nation's foremost legal minds." She would be the court's youngest justice and give it three female members for the first time.

The nomination to replace liberal retiring Justice John Paul Stevens set the stage for a bruising confirmation battle, though mathematically Democrats should be able to prevail in the end.

At 50, Kagan, is relatively young for the lifetime post and could help shape the high court's decisions for decades. If confirmed by the Senate, she would become only the fourth female justice in history.
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Obama cited what he called Kagan's "openness to a broad array of viewpoints" and her "fair mindedness."

Standing beside the president in the East Room of the White House, Kagan said she was "honored and humbled by this nomination."

"I look forward to working with the Senate in the next stage of this process, and I thank you again, Mr. President, for this honor of a lifetime," she said.

GOP criticism
Republicans are expected to criticize her for attempting to bar military recruiters from the Harvard Law campus while she was dean. That issue was used against her by critics during her confirmation hearing last year for her current post.

With control of 59 votes in the Senate, Democrats should be able to win confirmation. However, if all 41 Republicans vote together, they could delay a vote with a filibuster.

Republicans have shown no signs in advance that they would try to prevent a vote on Kagan, but they are certain to grill her in confirmation hearings over her experience, her thin record of legal writings and her decisions at Harvard.

The senator who will preside over her confirmation hearing, Democrat Patrick Leahy of Vermont, said, "The Senate should confirm Ms. Kagan before" Labor Day.

"Our constituents deserve a civil and thoughtful debate on this nomination, followed by an up-or-down vote," said the chairman of the Senate Judiciary Committee.

The Republican Senate leader, Mitch McConnell of Kentucky, said his party would make sure there was a "thorough process, not a rush to judgment" on the nomination.

"Judges must not be a rubber stamp for any administration. Judges must not walk into court with a preconceived idea of who should win," he said, adding that Republicans would have a vigorous debate on that principle.

Obama introduced Kagan as "my friend."

"Elena is widely regarded as one of the nation's foremost legal minds. She's an acclaimed legal scholar with a rich understanding of constitutional law. She is a former White House aide, with a life- long commitment to public service and a firm grasp of the nexus and boundaries between our three branches of government," Obama said.

Kagan served in the Clinton White House.

White House praise
Obama began with high praise for the retiring Stevens, a leader of the court's liberals, calling him "a giant in the law," impartial and having respect for legal precedence.

Kagan "embodies the same excellence, independence and passion for the law," Obama said.

Pushback?
May 10: The fact that Elena Kagan has never been a judge could be an issue in her appointment to the Supreme Court.

He noted that neither Kagan's mother nor father "lived to see this day, but I think her mother would relish this moment. I think she would relish, as I do, the prospect of three women taking their seat on the nation's highest court for the first time in history ... a court that would be more inclusive, more representative, more reflective of us as a people than ever before."

Kagan praised Stevens for having "played a particularly distinguished and exemplary role. It is therefore a special honor to be nominated to fill his seat."

In a short tenure as solicitor general "I have felt blessed to represent the United States before the Supreme Court, to walk into the highest court in this country when it is deciding its most important cases, cases that have an impact on so many people's lives," she said.

Seven Republicans voted for her confirmation last year as solicitor general.

One of them, Orrin Hatch of Utah, a member of the Judiciary Committee, issued a statement saying his decision this time "will be based on evidence, not blind faith. Her previous confirmation and my support for her in that position do not by themselves establish either her qualifications for the Supreme Court or my obligation to support her."


Elena Kagan biography
Name: Elena Kagan

Vital stats: Born in New York, member of the Democratic Party, Jewish, graduate of Harvard Law School, Oxford University, and Princeton University.

Career highlights: Solicitor general, Department of Justice, 2009-present; Member, Research Advisory Council at the Goldman Sachs Global Markets Institute, 2005-2008; Dean, Harvard Law School, 2003-2009; Deputy assistant to President Clinton for Domestic Policy, 1997-1999; Associate counsel to President Clinton, 1995-1996; Special counsel to Senate Judiciary Committee chairman Joe Biden, 1993; Law clerk to Justice Thurgood Marshall, U.S. Supreme Court, 1987-1988; Staff member, Dukakis for President Campaign, 1988.

Solicitors general who joined the high court: William Howard Taft, Stanley Reed, Robert Jackson, and Thurgood Marshall.

Kagan would become the only justice who had no prior experience as a judge. The other justices all served previously as federal appeals court judges. She was nominated to a federal appeals court post by President Bill Clinton but never served.

That means Kagan has a smaller paper trail than other recent nominees since there are no prior decisions to scrutinize.

But conservatives were already mounting an attack, one they laid the groundwork for when she was mentioned last year as being on Obama's short list for the Supreme Court post last time around.

Obama's White House team was launching its own broad campaign-style outreach to Capitol Hill and the media. That effort is designed to shape the national image of Kagan, an unknown figure to much of America.

Analysis
Tom Goldstein, the man behind scotusblog.com, says Elena Kagan’s lack of a paper trail on decisions such as abortion, religion and affirmative action could streamline her confirmation process.

Her selection came after nearly a monthlong process of consideration. Obama always had Kagan on his short list but still considered a broader group of candidates, interviewing four.

The president informed Kagan that she would a Supreme Court nominee on Sunday night. He then called the three federal judges he did not choose for the position, Diane Wood, Merrick Garland and Sidney Thomas.

Kagan is known as sharp and politically savvy and has enjoyed a blazing legal career. She was the first female dean of Harvard Law School, first woman to serve as the top Supreme Court lawyer for any administration.

A source close to the selection process said a central element in Obama's choice was Kagan's reputation for bringing together people of competing views and earning their respect.

The seven Republicans who supported her when she was confirmed as solicitor general in 2009 included Hatch, Tom Coburn of Oklahoma, Susan Collins of Maine, Judd Gregg of New Hampshire, Jon Kyl of Arizona, Richard Lugar of Indiana and Olympia Snowe of Maine.

Kagan has clerked for Thurgood Marshall, worked for Bill Clinton and earned a stellar reputation as a student, teacher and manager of the elite academic world. Yet she would be the first justice without judicial experience in almost 40 years. The last two were William H. Rehnquist and Lewis F. Powell Jr., both of whom joined the court in 1972.

Supreme Court justices wield enormous power over the daily life of Americans. Any one of them can cast the deciding vote on matters of life and death, individual freedoms and government power. Presidents serve four-year terms; justices have tenure for life.

Democrats went 15 years without a Supreme Court appointment until Obama chose federal appellate judge Sonia Sotomayor last year to succeed retiring Justice David Souter. Just 16 months in office, Obama has a second opportunity with Kagan.

Kagan, who is unmarried, was born in New York City. She holds a bachelor's degree from Princeton, a master's degree from Oxford and a law degree from Harvard.

Before she served as a clerk for Justice Marshall, she clerked for federal Appeals Court Judge Abner Mikva, who later became an important political mentor to Obama in Chicago.

Kagan and Obama both taught at the University of Chicago Law School in the early 1990s.

In her current job, Kagan represents the U.S. government and defends acts of Congress before the Supreme Court and decides when to appeal lower court rulings.

[raimius]

She did provide some interesting comments in her Solicitor General confirmation hearings.

there is no question, after Heller, that the Second Amendment guarantees individuals the right to keep and bear arms and that this right, like others in the Constitution, provides strong although not unlimited protection against governmental regulation.

That was her position as Solicitor General. She pointed out that that office must hold deep respect for stare decisis. She basically refused to give personal opinions, but the above quote is at least somewhat comforting, if she maintains that stance.

[Glenn E. Meyer]

That's a good thing, if Heller was 5-4, then believing in precedent would predict no sympathy for attempts to overturn it.

However, reasonable restrictions will probably still apply - the definition of those is the rub.

[Tom Servo]

From her confirmation writings:

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.

I think it is a great deal better for the elected branches to take the lead in creating a more just society than for courts to do so.

I think she's the safest choice for this administration. She's got some left-leaning credibility, but no so much so that she'll get torn apart in confirmation. If she sticks to her principles, she may be an asset to us.

If not, at least she's no Stevens. I'm not bad-mouthing Stevens, as I admired him at times, but she will lack his influence, as well as his ability to sway Kennedy.

[Brian Pfleuger]

She's a far better pick than I would have anticipated from this administration. The left doesn't seem to like her any better than the right, and I think that's about the best that can be expected at this point.

[MTT TL]

If not, at least she's no Stevens.

Thank God for that.

She's a far better pick than I would have anticipated from this administration.

Agreed.

The big thing that worries me is her stance on the fourth. That is an ugly thing, but likely would be no better from the right.

[Tom Servo]

There is a transcript of her testimony during her confirmation hearings for Solicitor General here (long pdf, starts at p. 304).

If I am confirmed, I will commit to show Heller and the principles articulated in it the full measure of respect that is due to all constitutional decisions of the Court. Only highly unusual circumstances can justify the Solicitor General’s office in asking the Court to reconsider a decision, especially one as thoroughly considered as Heller. Once again, there is no question, after Heller, that the Second Amendment guarantees individuals the right to keep and bear arms and that this right, like others in the Constitution, provides strong although not unlimited protection against governmental regulation. (pp. 318-319)

Ilya Somin has a good post on her views, and her ability to accept alternate interpretations, at Volokh. Rick Pildes thinks she would have likely voted with the majority in Citizens United.

I still find it interesting that she did not file a brief for McDonald, and I wonder if that's because of some political friction with the administration.

[Jim March]

What I like about her so far is that she's been willing to agree that the Heller decision has an effect on both CARRY and ownership, and she's said that.

The worst gun-grabbers active right now are trying to disparage "carry" as having anything to do with the 2nd. She's not in that category so far.

She'll likely be much better than Stevens and probably about as good a pick as we could hope for from Obama.

[Tom Servo]

In political terms, I think she's the best choice in terms of a smooth confirmation process. She's not too controversial, and they know her to some extent at this point.

Of course, replacing her as Solicitor General opens a whole different can of worms.

[Technosavant]

I'm also surprised that she seems to be rather moderate. She isn't the blazing leftist I'd have expected out of Obama; it appears that we may be seeing a solid vote for the liberal wing of the court be replaced by another swing vote.

My one real concern is her lack of bench experience and the decisions that would have come along with that. Lawyers for the administration will argue the administration's position; there's no real way of knowing if that's REALLY what they think. Very much a "take the king's shilling, do the king's work" sort of thing.

Could be that Obama just didn't want a long and drawn out fight to install a hard left justice- he pretty well used up most of his political capital to get health care through, and now he has to mend some fences if he's going to get much else done. This could be something of an accommodation to more conservative Senators, both in his party and in the GOP.

Or she could be a hard line leftist who has just hidden it thus far. There's no real way to know for sure.

[Al Norris]

I also think she is the best nominee, from the names that have been going around.

Quick question: Can anyone find how many Justices were never judges prior to sitting with the Court? Who were they?

[Brian Pfleuger]

Partial List:

William Rehnquist
John Marshall
Earl Warren
Felix Frankfurter
Louis Brandeis

Maybe complete, not sure.

[johnwilliamson062]

Seems we may have gained a lot here to me...
I am not a huge fan of nominating such a young judge. She could sit on the court for 40 years. I think supreme court justices should be like the pope, crawling into their death bed at nomination.
From my perspective this is one of Obama's few concrete attempts to be non-partisan instead of just talking about being non-partisan.
Being a Judge on the supreme court seems to be much different than being a judge anywhere else so i don't believe her lack of experience is really relevant. It seems to me a constitutional scholar is just as qualified as a judge.

Of course, there is always the possibility her past has been a series of calculated political moves leading up to this day and once the lifetime appointment is granted she will laugh maniacally and start pushing a communist agenda.

[Kreyzhorse]

She's a far better pick than I would have anticipated from this administration. The left doesn't seem to like her any better than the right, and I think that's about the best that can be expected at this point.

+1 Peetza. I'm not sure I like her, but then again no one else does, so I guess she might be decent.

[maestro pistolero]

I don't think we will do better from this administration. If the Republicans shoot down this nominee, I don't think we will much like what's behind door number two.

Look at who she will replace. Justice Stevens is a 2A nightmare, worsened by his possible cognitive difficulty due to age. His Heller dissent was a discredit to the bench, IMO.

She has made the relatively unequivocal statement that Heller says individuals can CARRY arms in case of confrontation. I don't think we can expect more than that at this time. If Republican try to torpedo this nominee, it will not help them in the next election. They should certainly do their diligence in the confirmation hearings. But barring any legitimate, insurmountable obstacles, should graciously wave her through, and commend the President for such a wise, thoughtful nomination.

[Tom Servo]

I don't think we will do better from this administration. If the Republicans shoot down this nominee, I don't think we will much like what's behind door number two.

That's why I'm hoping she gets confirmed. There are far worse candidates out there.

[Bartholomew Roberts]

Here is an interesting tidbit from Sasha Volokh over at the Volokh Conspiracy regarding Kagan;

"In particular — and despite her presumably pro-gun-control views (see the David Kopel post below), she was a good friend of the HLS (Harvard Law School) Target Shooting Club, which I founded in Fall 2001 and was the president of for two years."

On the flip side, it looks like Kagan drafted the 1998 Clinton Executive Order expanding the list of semi-automatic firearms banned for being "non-sporting" as well.

Not anything to get real excited about; but given the Administration, 59 votes in the Senate and their past willingness to push controversial issues, I think we are doing about as well as can be expected with this nominee. Like maestro and Tom, I don't think what is behind Door #2 is likely to be better.

[Glenn E. Meyer]

Politicians shooting guns sometimes is not correlated with our type of RKBA fervor. However, it might indicate not a total horror about using guns as some might have.

As far as drafting this or that - if you have a job and the boss wants this, you do it.

Last, we know that the gun culture contains split views on sports guns and the dreaded EBRs.

But as Mr. Roberts suggested - it doesn't look like a disaster and I doubt with all the crap going on, a push for draconian gun laws isn't in the picture for a bit. I think the with shall issue laws being up to 42 states (I think) - a sensible and pragmatic politician isn't going to ride the strict gun control horse.

[Musketeer]

As far as the 2A I believe we could do far worse. Not getting personally political here as far as what I believe is "right" but I think the administration is very concerned about getting a nominee through quickly and with a minimum of poltical bloodshed. Just looking at the trends the Administration knows their side is in for a tripto the woodshed in November. They have specific agenda items they want pushed through, notably immigration reform, before that happens and it becomes impossible. SCOTUS confirmations suck te wind out of everything and slow down all legislative business. If Obama nominated a hard leftist you would see a bloody fight which would likely kill any possibility of moving his agenda this year.

She is the politically expedient choice and this time it works in the 2A's favor as much as can be reasonably expected.

[apr1775]

So far she seems like someone I can deal with. Sure I'd like another Thomas or Roberts, but that's not going to come from Obama. If she doesn't get confirmed, I'd expect Obama to start nominating hard leftist. I'd say urge your senators to vote yes or we will end up with someone much worse.

[pnac]

Here's an article from Bloomberg about Kagan. She may the best of some very bad choses, but she's not a "friend" by any means. Wish she was about 75 yrs. old, we're going to be stuck with her for a looong time.

Link:http://www.bloomberg.com/apps/news?p...d=aPI35t8uR6Gs

"Kagan Was ‘Not Sympathetic’ as Law Clerk to Gun-Rights Argument"

[Bartholomew Roberts]

In more Kagan news, it seems that someone unearthed a legal memo Kagan wrote for a Second Amendment challenge while Justice Thurgood Marshall was on the bench. Oddly enough, it was a D.C. resident challenging his conviction for unlicensed possession of a handgun on Second Amendment grounds.

Kagan's memo to Justice Marshall regarding cert recommended that he deny cert and noted that the challenge was solely on Second Amendment grounds and stated "I am not sympathetic." Of course this would have been fairly early in her legal career, around 1988, IIRC. It would have also predated a lot of the more recent scholarship on the Second Amendment.

Not too sure what it says about Kagan's feelings on the Second Amendment; since in all probability, having cert granted on that case would have been very bad for us. My guess is pretty much the same as it was before I knew this - she isn't going to be much help for Second Amendment votes; but she won't be any worse than Justice Stevens at least.

[MTT TL]

You would have to work pretty hard to find one worse than Stevens.

[Tom Servo]

Not too sure what it says about Kagan's feelings on the Second Amendment; since in all probability, having cert granted on that case would have been very bad for us.

I'm still unclear as to the context. Was she "not sympathetic" to the cause, the case at hand, or just to Sandidge as a plaintiff? IIRC, Sandidge was already a felon when he was busted for illegally carrying a concealed weapon.

That was exactly the sort of plaintiff we've been trying to avoid these last few years.

You would have to work pretty hard to find one worse than Stevens.

I dunno, how about Breyer? "Ordered liberty," indeed.

[Bartholomew Roberts]

I dunno, how about Breyer? "Ordered liberty," indeed.

Well Breyer is bad; but his legal reasoning is also pretty bad. He is starting to hit that "crazy uncle" stage I think. Even the rest of the Justices seemed a bit confused by where he was trying to go in the McDonald oral arguments. Stevens disliked RKBA and was a better strategist, although he hasn't been at his sharpest for awhile either.