Elena Kagan nominated to Supreme Court

Well, President Obama has nominated his second Supreme Court justice, Elena Kagan.

She has never been a judge before–is that an asset or a liability?

Rather, she is an academic, the former dean of Harvard Law–is that an asset or a liability?

She has also been a government official and presidential advisor, currently serving as the Solicitor General–is that an asset or a liability?

As Dean, she refused to allow military recruiters at the law school, due to the military’s policies about gays.

Should Republicans in the Senate fight her nomination, or let the president have his way?

See Obama taps Kagan to give court historic 3rd female – Yahoo! News.

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • http://www.roundunvarnishedtale.blogspot.com Cheryl

    I think Republicans should fold. I don’t think they can stop this nomination, anyway. And she will be a liberal justice replacing a liberal justice. She will not change the balance of the court. If somehow she was blocked, Obama would appoint another liberal, maybe even further left, to take her place. The Republicans’ role should be to make sure it is revealed exactly who she is during the hearings so we at least know as well as we can what sort of justice we are getting.

  • http://www.roundunvarnishedtale.blogspot.com Cheryl

    I think Republicans should fold. I don’t think they can stop this nomination, anyway. And she will be a liberal justice replacing a liberal justice. She will not change the balance of the court. If somehow she was blocked, Obama would appoint another liberal, maybe even further left, to take her place. The Republicans’ role should be to make sure it is revealed exactly who she is during the hearings so we at least know as well as we can what sort of justice we are getting.

  • Winston Smith

    The President — any President — deserves a certain amount of deference when he puts forward a nominee. That sword cuts both ways; politicians of one party cannot demonize the other party’s nominee, and then turn around and cry foul when their own party’s nominees face a hostile Senate in later years (without sounding like opportunistic hypocrites). That, of course, is exactly how judicial nominations have been handled since the Bork hearings in 1987.

    A lot of acrimony could be avoided if both parties would confirm the other party’s nominees without harrassment. Of course, a lot of political point-scoring and fund-raising opportunities would also be lost.

    Ms. Kagan is eminently qualified to be a modern Supreme Court Justice, which is to say that she will fit right in with the other Harvard- or Yale-trained, non-Protestant Justices already on the bench.

  • Winston Smith

    The President — any President — deserves a certain amount of deference when he puts forward a nominee. That sword cuts both ways; politicians of one party cannot demonize the other party’s nominee, and then turn around and cry foul when their own party’s nominees face a hostile Senate in later years (without sounding like opportunistic hypocrites). That, of course, is exactly how judicial nominations have been handled since the Bork hearings in 1987.

    A lot of acrimony could be avoided if both parties would confirm the other party’s nominees without harrassment. Of course, a lot of political point-scoring and fund-raising opportunities would also be lost.

    Ms. Kagan is eminently qualified to be a modern Supreme Court Justice, which is to say that she will fit right in with the other Harvard- or Yale-trained, non-Protestant Justices already on the bench.

  • Joe

    “A lot of acrimony could be avoided if both parties would confirm the other party’s nominees without harrassment. Of course, a lot of political point-scoring and fund-raising opportunities would also be lost.”

    Winston – I agree with you that the process is off the rails, but I think it is a deeper issue that just petty politics. Once the Court began overreaching its rightful sphere (read invention of the living constitution) the Court became a political body. It is only rational for people and parties in a society such as ours that values citizen control over the political process to want to have a say.

    But as far as this nominee, she is qualified (many people are). The lack of prior experience as a judge is not a benefit but it is also not a disqualification, nor is it unique to Kagan. Many Justices were not judges before being appointed.

    While I am sure we will find out many things about her judicial philosophy in the next weeks, Kagan has one attribute that is absolutely necessary to the job: She has a pretty solid track record for actually listening to, and taking seriously, the arguments of those who disagree with her. As someone who disagrees with what I understand many of her positions to be, I find this a very important quality in a judge. In her time at Harvard she we very supportive of the activities of the Federalist Society (i.e. bringing debates to the campus to allow both sides of an issue to be heard).

  • Joe

    “A lot of acrimony could be avoided if both parties would confirm the other party’s nominees without harrassment. Of course, a lot of political point-scoring and fund-raising opportunities would also be lost.”

    Winston – I agree with you that the process is off the rails, but I think it is a deeper issue that just petty politics. Once the Court began overreaching its rightful sphere (read invention of the living constitution) the Court became a political body. It is only rational for people and parties in a society such as ours that values citizen control over the political process to want to have a say.

    But as far as this nominee, she is qualified (many people are). The lack of prior experience as a judge is not a benefit but it is also not a disqualification, nor is it unique to Kagan. Many Justices were not judges before being appointed.

    While I am sure we will find out many things about her judicial philosophy in the next weeks, Kagan has one attribute that is absolutely necessary to the job: She has a pretty solid track record for actually listening to, and taking seriously, the arguments of those who disagree with her. As someone who disagrees with what I understand many of her positions to be, I find this a very important quality in a judge. In her time at Harvard she we very supportive of the activities of the Federalist Society (i.e. bringing debates to the campus to allow both sides of an issue to be heard).

  • Winston Smith

    Joe @2: “She has a pretty solid track record for actually listening to, and taking seriously, the arguments of those who disagree with her. As someone who disagrees with what I understand many of her positions to be, I find this a very important quality in a judge. ”

    I absolutely agree.

    It’s also true that being a judge is not a prerequisite for the Supreme Court. Former Chief Justice Rehnquist (just to name one) had no prior judicial experience, and he turned out okay.

  • Winston Smith

    Joe @2: “She has a pretty solid track record for actually listening to, and taking seriously, the arguments of those who disagree with her. As someone who disagrees with what I understand many of her positions to be, I find this a very important quality in a judge. ”

    I absolutely agree.

    It’s also true that being a judge is not a prerequisite for the Supreme Court. Former Chief Justice Rehnquist (just to name one) had no prior judicial experience, and he turned out okay.

  • Kirk

    Kagan seems to be fairly non-political, which is something that I think is valuable in a judge. It suggests that she may (and this is speculation) be less susceptible to waves of political trend and my stick by her own educated opinion on constitutional interpretation. Plus, he academic record is about as solid as solid can get. Straight Ivy. I think that Obama actually made a good call on this one. Is she a nominee that a Republican president would have chosen? No, but she’s about as inoffensive to conservatives as a liberal can be.

  • Kirk

    Kagan seems to be fairly non-political, which is something that I think is valuable in a judge. It suggests that she may (and this is speculation) be less susceptible to waves of political trend and my stick by her own educated opinion on constitutional interpretation. Plus, he academic record is about as solid as solid can get. Straight Ivy. I think that Obama actually made a good call on this one. Is she a nominee that a Republican president would have chosen? No, but she’s about as inoffensive to conservatives as a liberal can be.

  • Carl Vehse

    Paul on Power Line notes:

    “If Elena Kagan is confirmed, as she is expected to be, the Supreme Court will contain three female Justices. And it will be a diverse group of women too — one originally from Brooklyn, one originally from Manhattan, and one originally from the Bronx.”

  • Carl Vehse

    Paul on Power Line notes:

    “If Elena Kagan is confirmed, as she is expected to be, the Supreme Court will contain three female Justices. And it will be a diverse group of women too — one originally from Brooklyn, one originally from Manhattan, and one originally from the Bronx.”

  • Kirk

    What I meant to say was

    “SHE’S A GODLESS LIBERAL THAT’S BENT ON DESTROYING AMERICA AND MAKING YOUNG GIRLS INTO AN ARMY OF BRA BURNING FEMINISTS!!! SHE’S LACKING IN EXPERIENCE AND HATES AMERICA, JUST LIKE OUR PRESIDENT!!1 WHERE’S THE BIRTH CERTIFICATE!?!?!?!?”

  • Kirk

    What I meant to say was

    “SHE’S A GODLESS LIBERAL THAT’S BENT ON DESTROYING AMERICA AND MAKING YOUNG GIRLS INTO AN ARMY OF BRA BURNING FEMINISTS!!! SHE’S LACKING IN EXPERIENCE AND HATES AMERICA, JUST LIKE OUR PRESIDENT!!1 WHERE’S THE BIRTH CERTIFICATE!?!?!?!?”

  • Rose

    Kagan and Sotomayor are both never-married and childless.

  • Rose

    Kagan and Sotomayor are both never-married and childless.

  • Kirk

    @8

    Yes…?

  • Kirk

    @8

    Yes…?

  • kerner

    Never been a judge before: In and of itself, don’t care.

    Academic=Understands legal theory: +
    Dean=administrator=plays well with others: +
    Harvard Law=Liberal=uh oh: -

    government official/prsidential advisor=political=has agenda=knows how to maneuver to achieve agenda: could be + or -, depending on agenda.

    Harvard policy towards th military/gays=high priority pro gay agenda (not necessarily anti military, gays just more important)=expect support for constitutional right to gay lifestyle: -

    Should republicans oppose her or just let her through?

    Too soon to tell. There will be no really good nominee from this administration, so the question is who will be their least bad nominee. I reject the principle that mere abstract qualifications should be the only issue. The left abandonned that principle long ago while conservatives have tried to unilaterally tried to retain it. The result has been that the court has skewed liberal even though republicans have done most of the appointing. The right may not like to play that game, but to do otherwise is like unilateral nuclear disarmament. We won’t win the cold war that way.

    It is encouraging to hear from Joe that she listens to and takes seriously opinions she disagrees with. This issue needs to be developed and there must be examples of times when she not only took those opposing view seriously, but changed her position in response to it. Anything less is just patronizing.

    Could it get worse if she is rejected? Sure, but that depends on how all parties play the game.

  • kerner

    Never been a judge before: In and of itself, don’t care.

    Academic=Understands legal theory: +
    Dean=administrator=plays well with others: +
    Harvard Law=Liberal=uh oh: -

    government official/prsidential advisor=political=has agenda=knows how to maneuver to achieve agenda: could be + or -, depending on agenda.

    Harvard policy towards th military/gays=high priority pro gay agenda (not necessarily anti military, gays just more important)=expect support for constitutional right to gay lifestyle: -

    Should republicans oppose her or just let her through?

    Too soon to tell. There will be no really good nominee from this administration, so the question is who will be their least bad nominee. I reject the principle that mere abstract qualifications should be the only issue. The left abandonned that principle long ago while conservatives have tried to unilaterally tried to retain it. The result has been that the court has skewed liberal even though republicans have done most of the appointing. The right may not like to play that game, but to do otherwise is like unilateral nuclear disarmament. We won’t win the cold war that way.

    It is encouraging to hear from Joe that she listens to and takes seriously opinions she disagrees with. This issue needs to be developed and there must be examples of times when she not only took those opposing view seriously, but changed her position in response to it. Anything less is just patronizing.

    Could it get worse if she is rejected? Sure, but that depends on how all parties play the game.

  • Cincinnatus

    I don’t doubt that she is qualified–becoming an academic dean is no small achievement–nor do I doubt her knowledge of constitutional jurisprudence. In fact, I am rather pleased that we’ve picked someone without career judicial experience; she will thus join a long and esteemed line of Supreme Court justices that have done much to shape our current understanding of the Constitution: Jackson, Warren, Douglas, Rehnquist, and Douglas, amongst others.

    What I do have a problem with is that she is yet another alumna of the Harvard-Yale axis. This means all nine of our justices will have received their legal educations in the Ivy League. This does not signal intellectual diversity on the court. It would be nice to spice up the court with someone hailing from a different intellectual background. There are, after all, good law schools east of Connecticut.

  • Cincinnatus

    I don’t doubt that she is qualified–becoming an academic dean is no small achievement–nor do I doubt her knowledge of constitutional jurisprudence. In fact, I am rather pleased that we’ve picked someone without career judicial experience; she will thus join a long and esteemed line of Supreme Court justices that have done much to shape our current understanding of the Constitution: Jackson, Warren, Douglas, Rehnquist, and Douglas, amongst others.

    What I do have a problem with is that she is yet another alumna of the Harvard-Yale axis. This means all nine of our justices will have received their legal educations in the Ivy League. This does not signal intellectual diversity on the court. It would be nice to spice up the court with someone hailing from a different intellectual background. There are, after all, good law schools east of Connecticut.

  • Tom Hering

    Cincinnatus, this morning I listened to an hour-long interview with Paul Campos on the Ideas Network of Wisconsin Public Radio. He made the same point you did about the lack of diversity in the Court’s legal education (no one educated in the Midwest or West).

    Campos’ article about Kagan is worth a read.

  • Tom Hering

    Cincinnatus, this morning I listened to an hour-long interview with Paul Campos on the Ideas Network of Wisconsin Public Radio. He made the same point you did about the lack of diversity in the Court’s legal education (no one educated in the Midwest or West).

    Campos’ article about Kagan is worth a read.

  • DonS

    LOL @ Carl @ 6 :-). That’s diversity for you, in the liberal world. Just like the diversity of those representing California in the U.S. Senate. Two old, white, Jewish women from San Francisco. Awesome! The only good news for those of us in California is that we got to export them and their great wisdom to the entire U.S.

    Elena Kagan is less offensive than some because she is, according to report, a pleasant person who doesn’t hate conservatives. Among the liberal set, that lack of hatred and elitist condescension is refreshing in itself. However, make no mistake, she is on the far left politically, and she has a strong agenda. I cannot think of any significant issue that will come before the Court where she will not be expected to vote in the same way as Justice Stevens would.

    Democrats make it a habit to fight every Republican nominee. John Roberts was the most qualified nominee to the Court in most of our lifetimes, and still garnered over 40 Democratic “no” votes. So, if that’s the way they want to play it, then Republicans need to give it a good hard go as well. I had to laugh at Sen. Leahy’s comments yesterday, condemning any Republican attempt to fight Kagan’s nomination. Leahy has NEVER voted for confirmation of a Republican nominee to the Supreme Court. Clearly, Kagan will be confirmed, short of a scandal discovered during her vetting, and I don’t believe in judicial filibusters of qualified nominees. But, she herself wrote much during earlier confirmation hearings about the need to thoroughly review nominees’ records and views, and has thus opened the door to such a review of her views. It will be important for Republicans to define her as a person of the far left, and to help the voters understand what they did when they voted for President Obama.

    Cheryl @ 1, the sad thing is not that Kagan will immediately change the balance of the Court, but rather, that she is 50 and Stevens is 90. We will have ensured ourselves a reliably liberal vote for 30 or 40 more years. It is a shame, but elections have consequences, and voters seldom stop to consider the issue of the courts when they cast a vote.

  • DonS

    LOL @ Carl @ 6 :-). That’s diversity for you, in the liberal world. Just like the diversity of those representing California in the U.S. Senate. Two old, white, Jewish women from San Francisco. Awesome! The only good news for those of us in California is that we got to export them and their great wisdom to the entire U.S.

    Elena Kagan is less offensive than some because she is, according to report, a pleasant person who doesn’t hate conservatives. Among the liberal set, that lack of hatred and elitist condescension is refreshing in itself. However, make no mistake, she is on the far left politically, and she has a strong agenda. I cannot think of any significant issue that will come before the Court where she will not be expected to vote in the same way as Justice Stevens would.

    Democrats make it a habit to fight every Republican nominee. John Roberts was the most qualified nominee to the Court in most of our lifetimes, and still garnered over 40 Democratic “no” votes. So, if that’s the way they want to play it, then Republicans need to give it a good hard go as well. I had to laugh at Sen. Leahy’s comments yesterday, condemning any Republican attempt to fight Kagan’s nomination. Leahy has NEVER voted for confirmation of a Republican nominee to the Supreme Court. Clearly, Kagan will be confirmed, short of a scandal discovered during her vetting, and I don’t believe in judicial filibusters of qualified nominees. But, she herself wrote much during earlier confirmation hearings about the need to thoroughly review nominees’ records and views, and has thus opened the door to such a review of her views. It will be important for Republicans to define her as a person of the far left, and to help the voters understand what they did when they voted for President Obama.

    Cheryl @ 1, the sad thing is not that Kagan will immediately change the balance of the Court, but rather, that she is 50 and Stevens is 90. We will have ensured ourselves a reliably liberal vote for 30 or 40 more years. It is a shame, but elections have consequences, and voters seldom stop to consider the issue of the courts when they cast a vote.

  • Tom Hering

    “… make no mistake, she is on the far left politically, and she has a strong agenda.” – DonS @ 13

    Evidence?

  • Tom Hering

    “… make no mistake, she is on the far left politically, and she has a strong agenda.” – DonS @ 13

    Evidence?

  • DonS

    Tom @ 14: There is plenty of evidence that Kagan is a committed liberal. She clerked for Judge Abner Mikva in the 2nd Circuit, and Justice Thurgood Marshall, two of the most committed liberal jurists ever to sit on the bench. There are plenty of articles out there now reporting her views. See http://www.salon.com/news/opinion/feature/2010/05/09/liberals_should_kagan_chance

    as just one of many examples. I read an article yesterday interviewing many of her law school colleagues and fellow law clerks, all indicating that she is a definite liberal. She was nominated by Barack Obama. What evidence, exactly, do you need? I don’t understand.

  • DonS

    Tom @ 14: There is plenty of evidence that Kagan is a committed liberal. She clerked for Judge Abner Mikva in the 2nd Circuit, and Justice Thurgood Marshall, two of the most committed liberal jurists ever to sit on the bench. There are plenty of articles out there now reporting her views. See http://www.salon.com/news/opinion/feature/2010/05/09/liberals_should_kagan_chance

    as just one of many examples. I read an article yesterday interviewing many of her law school colleagues and fellow law clerks, all indicating that she is a definite liberal. She was nominated by Barack Obama. What evidence, exactly, do you need? I don’t understand.

  • Cincinnatus

    I, for one, think it is silly to criticize Kagan for being a liberal: that ship sailed long ago, you’re barking up the wrong tree, and other assorted cliches that match in banality the critique that she is liberal.

    Of course she is liberal.

    It is childish to expect anything other than a liberal appointee to replace a retiring liberal under a liberal president, and opposing her because she is liberal will not do the Republicans any favors (unless they would like a more liberal appointee).

    There are other reasons either to like or loathe her. I, for one, like her position on intellectual property. I do not like that she is yet another member of the Harvard “good ole’ boys (girls?) club.” I do not like her belief, which she shares with both conservatives and liberals, in the inherent constitutional supremacy of the executive branch. That is a dangerous proposition, though the party holding the presidency always favors it.

  • Cincinnatus

    I, for one, think it is silly to criticize Kagan for being a liberal: that ship sailed long ago, you’re barking up the wrong tree, and other assorted cliches that match in banality the critique that she is liberal.

    Of course she is liberal.

    It is childish to expect anything other than a liberal appointee to replace a retiring liberal under a liberal president, and opposing her because she is liberal will not do the Republicans any favors (unless they would like a more liberal appointee).

    There are other reasons either to like or loathe her. I, for one, like her position on intellectual property. I do not like that she is yet another member of the Harvard “good ole’ boys (girls?) club.” I do not like her belief, which she shares with both conservatives and liberals, in the inherent constitutional supremacy of the executive branch. That is a dangerous proposition, though the party holding the presidency always favors it.

  • fws

    I am interested in the fact that Kagan is a lesbian, has not seemed to worry about this fact being known in a casual way, and this is not brought up. It seems relevant.

    I also note that when CBS tried to comment on it, the White House called this a “smear campaign” and managed to get CBS to delete the article without so much as a comment. as in poof!

    I for one, do not consider it an insult to call someone gay or lesbian or a “smear”.

    sigh!

  • fws

    I am interested in the fact that Kagan is a lesbian, has not seemed to worry about this fact being known in a casual way, and this is not brought up. It seems relevant.

    I also note that when CBS tried to comment on it, the White House called this a “smear campaign” and managed to get CBS to delete the article without so much as a comment. as in poof!

    I for one, do not consider it an insult to call someone gay or lesbian or a “smear”.

    sigh!

  • Joe

    Is it confirmed that she is a lesbian? Personally, I don’t really think it matters unless she is allowing that to define every legal issue. If she is, is this the definition of in the closet?

  • Joe

    Is it confirmed that she is a lesbian? Personally, I don’t really think it matters unless she is allowing that to define every legal issue. If she is, is this the definition of in the closet?

  • fws

    I have a friend who is an adjunct professor at Harvard.it is not an open secret . it is not a secret. she can often be seen holding the hand of her other half coming out of local restaurants. This would look like gossip only to those who think there is something wrong with that. as for me. yawn. but why the silence about it then?

  • fws

    I have a friend who is an adjunct professor at Harvard.it is not an open secret . it is not a secret. she can often be seen holding the hand of her other half coming out of local restaurants. This would look like gossip only to those who think there is something wrong with that. as for me. yawn. but why the silence about it then?

  • Joe

    Frank – perhaps she doesn’t feel the need to bring it up. Maybe that is why the silence. After all, strait nominees don’t run around talking about being strait all the day long. May be she doesn’t want to be the “first gay Justice” and has decided not to make an issue of it.

  • Joe

    Frank – perhaps she doesn’t feel the need to bring it up. Maybe that is why the silence. After all, strait nominees don’t run around talking about being strait all the day long. May be she doesn’t want to be the “first gay Justice” and has decided not to make an issue of it.

  • Cincinnatus

    fws@19: “Why the silence about it then?”

    Because her sexual orientation should have no bearing on her jurisprudence or her interpretation of the constitution, in same way that it should be irrelevant that Sotomayor has a “great story” of Latina heritage, that Thomas is black, or that Ginsberg is a woman. None of those things should matter.

    But apparently they do.

  • Cincinnatus

    fws@19: “Why the silence about it then?”

    Because her sexual orientation should have no bearing on her jurisprudence or her interpretation of the constitution, in same way that it should be irrelevant that Sotomayor has a “great story” of Latina heritage, that Thomas is black, or that Ginsberg is a woman. None of those things should matter.

    But apparently they do.

  • fws

    joe and cincinnatus.

    Exactly. For exactly the reasons you both state.

  • fws

    joe and cincinnatus.

    Exactly. For exactly the reasons you both state.

  • kerner

    I disagree with the proposition that there is no point in opposing a liberal nominee, simply because the next one will probaly be liberal too. The democrats have forced the republicans to nominate justices like David Souter, and to a lesser extent Sandra Day O’Connor ad Anthony Kennedy, and even John Paul Stevens, by simply refusing to confirm conservatives. The problem is that conservatives have chosen to oppose this on (perhaps misplaced) principle, going so far as to claim that the practice of refusung to confirm an appointee based on the appointee’s judicial philosophy is unconstitutional, and threatening to change Senate rules such that filibustering a nominee becomes impossible.

    Now that the shoe is on the other foot the problems with that position are apparent. Unfortunately, I can’t see republicans being sufficiently willing to do a 180 on that position. And given their slim numbers in the Senate, I have trouble believing they could be sufficiently disciplined to stand up to the white house on a Supreme Court appointment.

    But I really wish Republicans would find it in themselves. The prospect of President Obama nominating someone whose record of liberal judicial philosophy was so thin that the nominee, after confirmation, began to display an unexpected tendency to embrace a conservative judicial philosophy would be sublimely ironic.

  • kerner

    I disagree with the proposition that there is no point in opposing a liberal nominee, simply because the next one will probaly be liberal too. The democrats have forced the republicans to nominate justices like David Souter, and to a lesser extent Sandra Day O’Connor ad Anthony Kennedy, and even John Paul Stevens, by simply refusing to confirm conservatives. The problem is that conservatives have chosen to oppose this on (perhaps misplaced) principle, going so far as to claim that the practice of refusung to confirm an appointee based on the appointee’s judicial philosophy is unconstitutional, and threatening to change Senate rules such that filibustering a nominee becomes impossible.

    Now that the shoe is on the other foot the problems with that position are apparent. Unfortunately, I can’t see republicans being sufficiently willing to do a 180 on that position. And given their slim numbers in the Senate, I have trouble believing they could be sufficiently disciplined to stand up to the white house on a Supreme Court appointment.

    But I really wish Republicans would find it in themselves. The prospect of President Obama nominating someone whose record of liberal judicial philosophy was so thin that the nominee, after confirmation, began to display an unexpected tendency to embrace a conservative judicial philosophy would be sublimely ironic.

  • Trey

    The GOP should use the confirmation as a political tool for the election in November. The opportunity to change the balance of the court is slipping especially if Ginsberg retires before the next Presidential election. My fear is that it will shift liberal.

  • Trey

    The GOP should use the confirmation as a political tool for the election in November. The opportunity to change the balance of the court is slipping especially if Ginsberg retires before the next Presidential election. My fear is that it will shift liberal.

  • DonS

    Kerner @ 23: Well said. In particular, the point in fighting this nomination is not necessarily to prevent Kagan’s confirmation, which is a tall order, but to establish her liberalism, something the MSM doesn’t like to do, and to set the stage for fighting future nominations after November, when Republicans WILL have the numbers required to force a truly moderate nomination.

  • DonS

    Kerner @ 23: Well said. In particular, the point in fighting this nomination is not necessarily to prevent Kagan’s confirmation, which is a tall order, but to establish her liberalism, something the MSM doesn’t like to do, and to set the stage for fighting future nominations after November, when Republicans WILL have the numbers required to force a truly moderate nomination.

  • Rose

    Kirk,
    1. Unmarried women are a large demographic for Obama. Unfortunately, they look to the government to husband them, like the Brink’s home security man who is always at the phone ready to assist and is one of the few husband-figures allowed on tv.
    2. We are increasingly governed by a childless elite. Not healthy.

  • Rose

    Kirk,
    1. Unmarried women are a large demographic for Obama. Unfortunately, they look to the government to husband them, like the Brink’s home security man who is always at the phone ready to assist and is one of the few husband-figures allowed on tv.
    2. We are increasingly governed by a childless elite. Not healthy.

  • http://www.toddstadler.com/ tODD

    Kerner (@23), you said, “The problem is that conservatives have chosen to oppose this on (perhaps misplaced) principle, going so far as to claim that the practice of refusung to confirm an appointee based on the appointee’s judicial philosophy is unconstitutional, and threatening to change Senate rules such that filibustering a nominee becomes impossible.”

    I’m having a hard time reconciling your claim with the 31 “no” votes that Sotomayor got from the Republicans. Can you help me out? Did all 31 of them have problems with her qualifications only, and not her philosophy? Were all 31 of them Republicans, but not conservatives? When it came to Sotomayor’s confirmation, the results didn’t look much different than the intense partisan nature of the Aliton confirmation. So why do you maintain there’s still a difference in how conservatives approach this matter?

  • http://www.toddstadler.com/ tODD

    Kerner (@23), you said, “The problem is that conservatives have chosen to oppose this on (perhaps misplaced) principle, going so far as to claim that the practice of refusung to confirm an appointee based on the appointee’s judicial philosophy is unconstitutional, and threatening to change Senate rules such that filibustering a nominee becomes impossible.”

    I’m having a hard time reconciling your claim with the 31 “no” votes that Sotomayor got from the Republicans. Can you help me out? Did all 31 of them have problems with her qualifications only, and not her philosophy? Were all 31 of them Republicans, but not conservatives? When it came to Sotomayor’s confirmation, the results didn’t look much different than the intense partisan nature of the Aliton confirmation. So why do you maintain there’s still a difference in how conservatives approach this matter?

  • Cincinnatus

    Rose,

    I still don’t see the relevance of your point(s). First of all, the supposition that unmarried women are a large demographic for Obama (I don’t know whether they are or are not, though I wouldn’t be surprised if they are) has no bearing on whether Kagan would be a good justice or not. Even if they are, it’s not as if he needs to “reward” that demographic by throwing them the bone of an unmarried Supreme Court Justice.

    Your second point–that we are “increasingly governed by a childless elite”–is quite simply dubious. Upon what grounds are you making this claim? If it were true–which I find dubious, as most of the Presidents, Governors, Justices, Congressmen, etc., I know are married with children–I could see your concern: I suppose there are moral and sociological problems with having a society ruled by a cabal of childless eunuchs or something along those lines. But even if true–again, unlikely–I fail to see the relevance of your concern to Kagan specifically. How on earth does the presence of a family with children shape one’s interpretation of the Constitution? Why should it concern us? Has the possession of “x” number of children become another litmus test for government appointees? I would have to submit that such a test would be patently absurd.

    In short, I’m confused by your logic.

  • Cincinnatus

    Rose,

    I still don’t see the relevance of your point(s). First of all, the supposition that unmarried women are a large demographic for Obama (I don’t know whether they are or are not, though I wouldn’t be surprised if they are) has no bearing on whether Kagan would be a good justice or not. Even if they are, it’s not as if he needs to “reward” that demographic by throwing them the bone of an unmarried Supreme Court Justice.

    Your second point–that we are “increasingly governed by a childless elite”–is quite simply dubious. Upon what grounds are you making this claim? If it were true–which I find dubious, as most of the Presidents, Governors, Justices, Congressmen, etc., I know are married with children–I could see your concern: I suppose there are moral and sociological problems with having a society ruled by a cabal of childless eunuchs or something along those lines. But even if true–again, unlikely–I fail to see the relevance of your concern to Kagan specifically. How on earth does the presence of a family with children shape one’s interpretation of the Constitution? Why should it concern us? Has the possession of “x” number of children become another litmus test for government appointees? I would have to submit that such a test would be patently absurd.

    In short, I’m confused by your logic.

  • kerner

    tODD @27:

    Hmm. You could have point there. Maybe conservatives are changing faster than I thought. And I just read a Salon article that said that Republicans blocked a Clinton nomination of Kagan to the Court of Appeals.

    I also just read an article from the Cato Institute on Kagan’s position on limited government, which they claim is pretty much that there aren’t any limits.

    http://www.cato-at-liberty.org/2010/05/10/does-elena-kagan-support-limited-government/

    Maybe the republicans will rise to the occasion. Happy surprise for me if they do.

  • kerner

    tODD @27:

    Hmm. You could have point there. Maybe conservatives are changing faster than I thought. And I just read a Salon article that said that Republicans blocked a Clinton nomination of Kagan to the Court of Appeals.

    I also just read an article from the Cato Institute on Kagan’s position on limited government, which they claim is pretty much that there aren’t any limits.

    http://www.cato-at-liberty.org/2010/05/10/does-elena-kagan-support-limited-government/

    Maybe the republicans will rise to the occasion. Happy surprise for me if they do.

  • http://www.toddstadler.com/ tODD

    Kerner (@29), if the article you linked to was the article you referred to in your second paragraph, it doesn’t say what you said it says. Nor do I suspect that you, as a lawyer, would allow such slim “evidence” into your case:

    [Kagan's rise] surely has acquainted her with the modern conception of the Constitution, which is at some remove from the document itself. Whereas the Constitution as written creates a government of limited powers, modern “constitutional law” has allowed an all but unlimited federal government – nowhere more evident than in Ms. Kagan’s sponsor’s cardinal achievement to date, ObamaCare. … The question, “Are there any longer any limits on federal power?” will doubtless be prominent during the upcoming Senate confirmation hearings. Ms. Kagan has a slim publishing record for someone with her background, so the hearings will be especially important for answering that question.

    The article at that link is nothing but one big question mark. Come on.

  • http://www.toddstadler.com/ tODD

    Kerner (@29), if the article you linked to was the article you referred to in your second paragraph, it doesn’t say what you said it says. Nor do I suspect that you, as a lawyer, would allow such slim “evidence” into your case:

    [Kagan's rise] surely has acquainted her with the modern conception of the Constitution, which is at some remove from the document itself. Whereas the Constitution as written creates a government of limited powers, modern “constitutional law” has allowed an all but unlimited federal government – nowhere more evident than in Ms. Kagan’s sponsor’s cardinal achievement to date, ObamaCare. … The question, “Are there any longer any limits on federal power?” will doubtless be prominent during the upcoming Senate confirmation hearings. Ms. Kagan has a slim publishing record for someone with her background, so the hearings will be especially important for answering that question.

    The article at that link is nothing but one big question mark. Come on.

  • http://www.toddstadler.com/ tODD

    FWS (@17), you appear to be incorrect in discussing “the fact that Kagan is a lesbian”: “Elena Kagan is not a lesbian, one of her best friends told POLITICO Tuesday night, responding to persistent rumors and innuendo about the Supreme Court nominee’s personal life.”

    Not sure why you were making an issue out of it while simultaneously claiming to be uninterested in it, but she appears to be straight.

  • http://www.toddstadler.com/ tODD

    FWS (@17), you appear to be incorrect in discussing “the fact that Kagan is a lesbian”: “Elena Kagan is not a lesbian, one of her best friends told POLITICO Tuesday night, responding to persistent rumors and innuendo about the Supreme Court nominee’s personal life.”

    Not sure why you were making an issue out of it while simultaneously claiming to be uninterested in it, but she appears to be straight.

  • fws

    todd @ 31

    Interesting Todd. I have to say that I just don´t know. I know people who work at harvard and I am told there that it is just assumed that she is.

    I am glad to see here that most think that the question is irrelevant to her nomination as a justice.

    I think i was dismayed hearing the white house say that saying she was a lesbian was somehow slander. It really is on the same level as someone mistakenly confusing me with being republican ;)

    I was hearing from reliable sources that she is a lesbian, and now another reliable source you present says she is not. Ok. Interesting. and the burning issue in all this is….

  • fws

    todd @ 31

    Interesting Todd. I have to say that I just don´t know. I know people who work at harvard and I am told there that it is just assumed that she is.

    I am glad to see here that most think that the question is irrelevant to her nomination as a justice.

    I think i was dismayed hearing the white house say that saying she was a lesbian was somehow slander. It really is on the same level as someone mistakenly confusing me with being republican ;)

    I was hearing from reliable sources that she is a lesbian, and now another reliable source you present says she is not. Ok. Interesting. and the burning issue in all this is….

  • Cincinnatus

    The burning issue, in relation to her sexual orientation, is nothing. Why do you care?

    If she were openly homosexual (which she is not), I would be personally concerned about the inseparability of “personal” ethics and public virtue, but such concerns will not resonate with the American public, as a majority do not have a moral objection to homosexuality.

    There are many other issues with her nomination that are of relevant interest to the American public, such as:

    1. She has, as announced today (and published 14 years ago in a Chicago Law Review article), “interesting” views on the First Amendment, of which I do not entirely approve. In fact, I don’t think the vast sweep of constitutional jurisprudence agrees with her. She thinks speech (and consequent limits on speech) should be regulated based on its effects rather than on its nature (for instance, racist speech is a protected viewpoint, but Kagan would ostensibly argue that in many contexts it can have dangerous or harmful consequences–and thus should always be limited). This would be a dangerous precedent to advocate, and would take us back about 90 years in first amendment jurisprudence.

    2. She believes in the constitutional supremacy of the executive branch. I vehemently disagree with this statement, though most conservatives probably favor it (or they did for the last eight years, anyway).

    3. She has “up-t0-date” views on intellectual property law, which I can summarize by saying that she does not take the side of the RIAA. This, in my opinion, is a large point in her favor.

    There may be others. Let’s talk about that, not the rumormongering surrounding her sexual orientation, or whether she is “liberal” or not. Again, of course she is liberal. And kerner’s argument that Republicans should oppose her nomination tooth-and-nail because of a chain of reasoning that essentially boils down to “because Democrats did it first” is not constructive. In fact, it’s rather tiresome.

    There are, as I say, other reasons to oppose (or support) her.

  • Cincinnatus

    The burning issue, in relation to her sexual orientation, is nothing. Why do you care?

    If she were openly homosexual (which she is not), I would be personally concerned about the inseparability of “personal” ethics and public virtue, but such concerns will not resonate with the American public, as a majority do not have a moral objection to homosexuality.

    There are many other issues with her nomination that are of relevant interest to the American public, such as:

    1. She has, as announced today (and published 14 years ago in a Chicago Law Review article), “interesting” views on the First Amendment, of which I do not entirely approve. In fact, I don’t think the vast sweep of constitutional jurisprudence agrees with her. She thinks speech (and consequent limits on speech) should be regulated based on its effects rather than on its nature (for instance, racist speech is a protected viewpoint, but Kagan would ostensibly argue that in many contexts it can have dangerous or harmful consequences–and thus should always be limited). This would be a dangerous precedent to advocate, and would take us back about 90 years in first amendment jurisprudence.

    2. She believes in the constitutional supremacy of the executive branch. I vehemently disagree with this statement, though most conservatives probably favor it (or they did for the last eight years, anyway).

    3. She has “up-t0-date” views on intellectual property law, which I can summarize by saying that she does not take the side of the RIAA. This, in my opinion, is a large point in her favor.

    There may be others. Let’s talk about that, not the rumormongering surrounding her sexual orientation, or whether she is “liberal” or not. Again, of course she is liberal. And kerner’s argument that Republicans should oppose her nomination tooth-and-nail because of a chain of reasoning that essentially boils down to “because Democrats did it first” is not constructive. In fact, it’s rather tiresome.

    There are, as I say, other reasons to oppose (or support) her.

  • Carl Vehse

    Kagan’s refusal to even have sympathy for the right to bear arms under the Second Amendment is a valid reason to oppose her nomination (not that any of Barry Soetoro’s SCOTUS choices would be any better).

    It did lead to Kagan’s awkward photo-op in Orin Hatch’s Senate office, with a gun hanging on the wall noting Hatch as “Man of the Year from the National Rifle Association.”

    Kagan, an amused look on her face, nodded. “It’s beautiful,” she said, staring at the gun.

    “It’s a handmade flintlock, and it’s beautiful,” Hatch said.

    “It’s gorgeous,” Kagan replied, as the press was hustled out of the room.

    Cute!

  • Carl Vehse

    Kagan’s refusal to even have sympathy for the right to bear arms under the Second Amendment is a valid reason to oppose her nomination (not that any of Barry Soetoro’s SCOTUS choices would be any better).

    It did lead to Kagan’s awkward photo-op in Orin Hatch’s Senate office, with a gun hanging on the wall noting Hatch as “Man of the Year from the National Rifle Association.”

    Kagan, an amused look on her face, nodded. “It’s beautiful,” she said, staring at the gun.

    “It’s a handmade flintlock, and it’s beautiful,” Hatch said.

    “It’s gorgeous,” Kagan replied, as the press was hustled out of the room.

    Cute!

  • Carl Vehse

    Another questionable aspect of Kagan’s character, or lack of it, is noted in “Kagan, Obama, and the Harvard Legacy of Literary Fraud

    When Barack Obama’s two faculty mentors at Harvard Law got in trouble for plagiarism, they were rescued by Dean Elena Kagan….

    In reviewing the case, Kagan and then Harvard President Larry Summers faced an obvious challenge: Ogletree was a black star on a faculty often criticized for being overly white; even more problematic, Tribe was the superstar of the judicial left.

    Had they been a couple of untenured white guys, Summers and Kagan would have promptly ground them into hamburger, but these two were sacred cows. So they duly appointed a three-person committee of Harvard insiders, headed by former and future (replacing Summers after his resignation) Harvard president Derek Bok. After several months of reluctant inquiry, Summers and Kagan chose not to see the obvious and let the miscreants go essentially unpunished.

    Given the politics of Ogletree and Tribe, the media had no interest in pursuing the case or pointing out the injustice of their non-punishment.

    This is what 0bama wants to deposit on the SCOTUS bench.

    One might as well nominate another former Harvard professor. leftist, and multiple plagiarist, Doris Kearns Goodwin, who has just as much experience on the judicial bench.

  • Carl Vehse

    Another questionable aspect of Kagan’s character, or lack of it, is noted in “Kagan, Obama, and the Harvard Legacy of Literary Fraud

    When Barack Obama’s two faculty mentors at Harvard Law got in trouble for plagiarism, they were rescued by Dean Elena Kagan….

    In reviewing the case, Kagan and then Harvard President Larry Summers faced an obvious challenge: Ogletree was a black star on a faculty often criticized for being overly white; even more problematic, Tribe was the superstar of the judicial left.

    Had they been a couple of untenured white guys, Summers and Kagan would have promptly ground them into hamburger, but these two were sacred cows. So they duly appointed a three-person committee of Harvard insiders, headed by former and future (replacing Summers after his resignation) Harvard president Derek Bok. After several months of reluctant inquiry, Summers and Kagan chose not to see the obvious and let the miscreants go essentially unpunished.

    Given the politics of Ogletree and Tribe, the media had no interest in pursuing the case or pointing out the injustice of their non-punishment.

    This is what 0bama wants to deposit on the SCOTUS bench.

    One might as well nominate another former Harvard professor. leftist, and multiple plagiarist, Doris Kearns Goodwin, who has just as much experience on the judicial bench.

  • Cincinnatus

    Carl, don’t be silly. I’m as attentive as anyone to the problems of plagiarism, racial tensions, and political agendas in the academy, but your quoted article is heavy on bloviations and opinions and desperately short on facts.

    Here are the sole facts in that article:

    -Two professors at Harvard were accused of plagiarism (notice there is nothing that necessarily indicates that they were guilty) and Kagan participated on the academic judicial committee that vindicated them.

    The article you cite then proceeds to engage in all sorts of partisan hackery and unsubstantiated opinions: that she tried to save them because she is racist and/or flamingly leftist, that the two professors were undeniably plagiarists (which none of us on this blog really have the authority or knowledge to know), that she vindicated them with full knowledge that they were guilty, that she did it because of political pressures or because she wanted to save Obama’s face (though I’m not entirely sure of the connection between these two professor’s and Obama’s current administration: I certainly wouldn’t want or deserve to be penalized if my advisor were caught plagiarizing), et al. Worst of all, we’re told that they would have been punished had they been white. Really?

    All of those assumptions may or may not be true, but it is simply unfair (and probably dishonest) to trumpet them as divine fact, and thus as a credible reason to oppose Kagan.

  • Cincinnatus

    Carl, don’t be silly. I’m as attentive as anyone to the problems of plagiarism, racial tensions, and political agendas in the academy, but your quoted article is heavy on bloviations and opinions and desperately short on facts.

    Here are the sole facts in that article:

    -Two professors at Harvard were accused of plagiarism (notice there is nothing that necessarily indicates that they were guilty) and Kagan participated on the academic judicial committee that vindicated them.

    The article you cite then proceeds to engage in all sorts of partisan hackery and unsubstantiated opinions: that she tried to save them because she is racist and/or flamingly leftist, that the two professors were undeniably plagiarists (which none of us on this blog really have the authority or knowledge to know), that she vindicated them with full knowledge that they were guilty, that she did it because of political pressures or because she wanted to save Obama’s face (though I’m not entirely sure of the connection between these two professor’s and Obama’s current administration: I certainly wouldn’t want or deserve to be penalized if my advisor were caught plagiarizing), et al. Worst of all, we’re told that they would have been punished had they been white. Really?

    All of those assumptions may or may not be true, but it is simply unfair (and probably dishonest) to trumpet them as divine fact, and thus as a credible reason to oppose Kagan.

  • Carl Vehse

    Cincinnatus, Harvard professors Laurence Tribe and Charles Ogletree both admitted to plagiarism. But you go ahead and continue to dance to the tunes in your head.

  • Carl Vehse

    Cincinnatus, Harvard professors Laurence Tribe and Charles Ogletree both admitted to plagiarism. But you go ahead and continue to dance to the tunes in your head.

  • sg

    The real honest to goodness problem with Kagan is that her philosophy is inherently unfair. She does not believe in fairness as a fundamental principle. She wants to use her position on the court to punish political enemies. It is the old Soviet who? whom? She can’t decide which side of an argument to take until she determines who will benefit.

    She is the antithesis of blind justice.

    She desires to be a champion of the underdog, not a champion of truth and justice.

  • sg

    The real honest to goodness problem with Kagan is that her philosophy is inherently unfair. She does not believe in fairness as a fundamental principle. She wants to use her position on the court to punish political enemies. It is the old Soviet who? whom? She can’t decide which side of an argument to take until she determines who will benefit.

    She is the antithesis of blind justice.

    She desires to be a champion of the underdog, not a champion of truth and justice.

  • sg

    It is the old Soviet “who? whom?”.

    I don’t think that was clear. So just to clarify.

  • sg

    It is the old Soviet “who? whom?”.

    I don’t think that was clear. So just to clarify.


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