Obama nominates Kagan for Supreme Court to replace John Paul Stevens Su

I can understand why liberals like yourself and Deckard are unhappy with this choice but the track record of other pragmatic justices such as Souter and Stevens should give you some hope. In fact Warren (Cal grad) was brought in as a conservative and we know what his court was like.

At the moment I don't think we know enough to get a sense of what sort of justice Kagan will be.

 

This is certainly true. The vast majority of well qualified lawyers for the S. Ct did not go to the Ivies for law school. What are there about 4 Ivy law schools? Admittance to Ivies is mainly based on your LSAT score. Anyone who has taken it and been a lawyer realizes that the score alone is a relatively poor predictor of who will good be a good lawyer.

Now apparently being on the S. Ct has a near 100% correlation with having gone to an Ivy. Another example of class stratification in US society.


Sam is right it would be good to have had some trial judges and lawyers who represented say criminal or immigration or middle class or poor folks in family, accidents, worker's compensation etc. Or some lawyer politicos who have had to talk to ordiary folks about their problems. Too many of these folks were either born with a silver spoon in their mouth or left their modest beginnings at age 18 to be only surrounded educationally and professionally by the elite.

 

Have to agree with Major on this.

 

Considering that her stated judicial hero is one of the best known and regarded activist judges (Aharon Barak), I think we know exactly what kind of justice she will be

 

The Next Harriet Miers?

http://www.thedailybeast.com/blogs-and-stories/2010-05-01/the-next-harriet-miers/full/#

by Paul Campos
May 1, 2010 | 7:30pm

Top Supreme Court contender Elena Kagan, is an able administrator with a shamefully thin record of legal scholarship. Paul Campos compares her to the hapless Bush nominee who got laughed out of town.

As the rumblings become louder that President Obama is going to choose U.S. Solicitor General Elena Kagan as our next Supreme Court justice, somebody needs to ask a rather impolitic question: How, precisely, is Kagan's prospective nomination different from George W. Bush's ill-fated attempt to put Harriet Miers on the nation's highest court?

On its face, the question seems absurd. Five years ago, Miers was derided as a careerist mediocrity whose primary qualification to be on the Supreme Court was a slavish devotion to President Bush. Kagan, by contrast is a purportedly "brilliant" legal scholar who was granted tenure at the University of Chicago and Harvard, before becoming dean of the latter's law school.

Kagan's work reminded me of Orwell's observation that, if book reviewers were honest, 19 of 20 reviews would consist of the sentence, "this book inspires in me no thoughts whatever."

Yesterday, I read everything Elena Kagan has ever published. It didn't take long: In the nearly 20 years since Kagan became a law professor, she's published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review—a scholarly journal edited by Chicago's own faculty—and a short essay in the school's law review. She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing. (While it's true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard's dean, and for never having written anything intended for a more general audience, either before or after taking that position.)

Kagan's handful of publications touch on topics like regulating offensive speech, analyzing legislative motivations for speech regulations, and evaluating the process of administrative law-making. But on the vast majority of issues before the court, Kagan has no stated opinion. Her scholarship provides no clues regarding how she would rule on such crucial contemporary issues as the scope of the president's power in wartime, the legality of torture, or the ability of Congress to rein in campaign spending by corporations. (Of course cynics have noted that today Supreme Court nominees are often better off not having an extensive "paper trail" regarding their views on controversial legal issues. Who would have guessed it would be possible to retain this virtue while obtaining tenure at two of the nation's top law schools?)

At least in theory Kagan could compensate somewhat for the slenderness of her academic resume through the quality of her work. But if Kagan is a brilliant legal scholar, the evidence must be lurking somewhere other than in her publications. Kagan's scholarly writings are lifeless, dull, and eminently forgettable. They are, on the whole, cautious academic exercises in the sort of banal on-the-other-handing whose prime virtue is that it's unlikely to offend anyone in a position of power.

Take, for example, Kagan's article, "Presidential Administration," which appeared in the Harvard Law Review in 2001. The piece is dedicated largely to reviewing the extant literature on the power of Congress and the president to control the actions of administrative agencies. Kagan's thesis consists of presenting a fairly standard view within administrative law scholarship—that relatively tight presidential oversight of administrative agencies can have beneficial regulatory effects—as if it were a novel argument. She maintains, on the basis of thin evidence, that such oversight increased significantly under the Reagan and Clinton presidencies, and concludes with the tautological insight that presidential oversight can be a good thing if it doesn't go too far.

Kagan's work reminded me of Orwell's observation that, if book reviewers were honest, 19 of 20 reviews would consist of the sentence, "this book inspires in me no thoughts whatever." The bottom line regarding Kagan's scholarly career is that there's no there there. This is a problem not only because we have no evidence regarding what her views might be on almost any important legal question, but also because Kagan's supposed academic achievements are being touted as the primary justification for putting someone who has never been a judge on the nation's highest court. Now the fact that Kagan is more or less an academic nonentity would be of merely academic interest if she possessed unrelated but compelling qualifications for ascending to the nation's highest court. But what else, exactly, has she done?

Besides her law-school career, Kagan's resume consists of four years in the Clinton White House, where she was associate White House counsel—a full rung down from Harriet Miers' position in the Bush White House—and deputy director of the Domestic Policy Council, and six years as the dean of Harvard's law school. (Last year, Obama chose her as his solicitor general.)

Apparently her main accomplishment as dean at Harvard was raising a lot of money, which, given that it's the Harvard Law School, sounds roughly as impressive as managing to sell a lot of pot at a Grateful Dead concert. (She's also been given credit for improving the collegial atmosphere at the school, aka, getting a bunch of egomaniacs to engage in less backstabbing, which anyone familiar with law school faculties can attest is not a negligible accomplishment. Whether it's a sufficient basis for putting somebody on the Supreme Court is another matter.)

It seems clear Kagan is a bright person and an able administrator. But Harriet Miers was those things as well: She had a long and successful career in the private practice of law, she was the first woman president of the Texas Bar Association, and she was the top lawyer in the White House for several years prior to her nomination to the Court.

Miers' nomination was derailed by two complaints: that her primary qualification was that she was a "crony" of the president, and that nobody knew what views she had, if any, on the vast majority of questions facing the Supreme Court. Both criticisms are just as relevant to Kagan's potential selection.

Consider that Obama and Kagan joined the Chicago law faculty in the very same year, after both were Harvard Law students and members of the Harvard Law Review. (The difference between a "crony" and a "colleague" is often something of a sociological mystery.) Indeed, the most impressive thing about Kagan is that she seems to have a remarkable ability to ingratiate herself with influential people across the ideological spectrum.

The second criticism of the Miers nomination applies with even greater force to Kagan. As a private lawyer, Miers, after all, had a fairly good excuse for having no public views on the great legal issues of our day. For most of the past 20 years, Kagan's job has been to both develop and publicize such views. That she has nevertheless managed to almost completely avoid doing so is rather extraordinary.

Paul Campos is a professor of law at the University of Colorado at Boulder.

 

i think kagan's lack of opinions is VERY troubling. especially being a liberal.

i think comparing her to harriet miers is stupid. campos forgot to mention how kagan clerked for marshall and mikva. harriet miers graduated from smu law and clerked in the northern district of texas, which notably is not the same thing as clerking for marshall or mikva, and is not the same thing as magna at hls. campos clerked for no one.

 

Interesting article on the history of judges in the court.

http://www.talkingpointsmemo.com/live/kagan-nomination-live-blog/#335336


Elena Kagan is the first Supreme Court nominee in nearly 40 years who is not a sitting judge - since William Rehnquist's nomination in 1971. Should anyone care?

I think the answer is a resounding "yes."

Sitting judges' 40-year monopoly on the Supreme Court is completely inconsistent with the rest of our Nation's history. Dozens of Justices had no judicial experience, including many of the Court's most celebrated Members.

Here's one example: the Court that decided Brown v. Board of Education in 1954 was composed of a former Governor (Earl Warren), two former Senators (Hugo Black and Harold Burton), two former Attorneys General (Robert Jackson and Tom Clark), a law professor (Felix Frankfurter), a former federal agency head (William Douglas), and only one former judge--who also had been a Senator (Sherman Minton).

Indeed, members of Congress and Executive Branch officials routinely were appointed to the Court over the first 180 years of our history. Experience in the other branches of government, and in particular experience in elective office, was deemed highly relevant to service as a Justice.

What's changed?

The argument seems to be that because federal judges "interpret the law and don't make it," judging is a technocratic exercise: the "right" answer can be found, if only the decisionmaker is sufficiently well-versed in the technical tools of statutory or constitutional interpretation to find it.

That overly simplistic view of the judge's role is plainly wrong. In many cases, and certainly most cases heard by the Supreme Court, there are good arguments on both sides. The language of the relevant statutory provision is not clear and the surrounding text and other aids to interpretation point in different directions; or the language and history of the constitutional provision can be interpreted either way.

Judging requires the exercise of judgment. (The similar roots of the two words is no accident.) The judge must weigh the different arguments and decide which is the most persuasive.

And there is no mathematical formula for that process. Every individual does, and should, bring to the exercise of judgment his or her whole life experience. Would anyone seriously argue that when Justices Alito and Sotomayor are called upon to interpret a rule of criminal procedure, or a constitutional guarantee relating to restrictions on prosecutors, they are barred from using their long experience as prosecutors to assess the parties' contentions regarding the potential impact on ability of government to enforce criminal laws?

If the question to be decided is whether a police officer acted "reasonably" under the Fourth Amendment, for example, the Court has said that it "must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Surely these Justices, and other Members of the Court, may look to their own experience in assessing the latter factor.

The long tradition of nominating to the Supreme Court individuals with diverse life experience therefore has an extremely logical, and extremely important, underpinning: to ensure that this group of nine people will bring the widest possible experiences to bear in making decisions regarding the complex issues that come before them.

A Court composed entirely of individuals whose most recent - and in many cases most significant - life experience has been serving as a judge significantly narrows the range of experience on the Court and is therefore likely to result in less-than-optimal decisionmaking. Judging is a lonely job removed from hurly burly of commerce and from the political branches of government; especially on an appellate court, the judge's only professional contacts are with his or her colleagues and clerks. The cloistered nature of the job cannot help but narrow the judge's perspective.

Just as important, nominating only judges reinforces the erroneous perception that judging is some special technical task for which prior experience as a judge is the only legitimate qualification. Undercutting that crabbed view of the judge's role may be the most important reason to nominate non-judges to the Court.

Some observers are no doubt disappointed that President Obama did not return more fully to the traditional approach to Supreme Court appointments and nominate a Senator or a Governor or someone with broad experience at the head of federal cabinet departments. But at least he has taken a first step to break the judges' lock on the Court.

And Elena Kagan has significant experience not reflected on today's Court. She served for years as the "CEO" of a large and complex institution--the Harvard Law School. That required understanding and addressing the concerns of students, faculty, employees, alumni and other constituencies. And it required her to deal with the "real world" concerns of budgets, managing people, revising the curriculum, etc.

But the dean of a leading law school is at most a small step away from an appellate judgeship. Let's hope that the next nominee brings to the Court an even broader range of experiences, and returns the Court to the traditional collection of individuals with diverse backgrounds that served the nation so well.

 

All I am really saying is that in a country that is so diverse, the Supreme Court is starting to (education and geography) look pretty homogeneous. I guess they can sit around agreeing with each other all day.

 

I don't know about this one - she seems a little too - errrr, ummm... _______________.

 

Typical, coming from a man

possibly the first time three women will be on the bench. Isn't the population of America trending toward more women?

 

Now I have to agree with Refman. Oh well.

PS. Or did I just miss some sarcasm? Yep. I missed that trailing

 

just a little

But I'm just amused that Ref alluded to the idea that the court is becoming more of the same (kind of people) when we're about to have the most women ever on the court.

I can't wait for Obama's next pick.

 

Obams has his strengths, but he is somewhat tone deaf to how elitist he comes off. Oh well, I suspect that is the type of black man who was necessarily the first President.

In the elevator today I heard two black lawyers talking about how they felt Obama was a wimp and his choice of Kagan just showed that again. One was a black woman who said that she preferred Hillary. At least she did admit to voting for Obama unlike another black woman lawyer friend of mine who backed Hillary but claims she did not vote for Obama. I still hope she is bs ing me on that.

 

So the idea of appointing women to the SC is elitist? Tell me more glynch.

 

I don't know if I'd go so far as to label myself unhappy. Mystified I think is a better term. The whole Obama admin is mystifying.

 

how the hell is hillary more qualified to be a supreme court justice than kagan?

secondly, i don't like this pick at all. and my preferred choice, wood, is from UT. but i don't see at all how kagan's academic pedigree is a detriment. she's from all accounts brilliant, and her education is simply a testament to that.

i'm not sorry that our supreme court has folks from 'elite' schools. the problem isn't education. all being equal, i'll take a harvard or yale grad over most other law schools. i don't see this is as a problem.

the problem is when someone who is perhaps the most liberal on the court today is replaced, he's being replaced with a moderate. i don't like this. especially when its a moderate with basically no publications, no public opinions.

 

I think people tend to misunderstand Obama, mostly because he was considered so far left on the Iraq war. Obama is - and always has been - a left-center pragmatist. All through his career in the Illinois Senate and US Senate, it was the same thing. He starts with a leftist position to give himself room to maneuver to a center-left bill as a compromise. In situations where he's not maneuvering (like this), he goes with center-left pretty consistently.

 

I know and agree. Problem is that he's too quick to jump to the center when he does not have to. You could argue that intentional, but that reeks of bad strategy IMO.

 

Certainly true - it does feel at times that he's negotiated against himself and things like that (especially with health care). I think in the case of the Supreme Court, he really actually wants moderate left people. They probably most similarly represent his views.