Gavel Grab

Archive for the 'Supreme Court Vacancy' Category

President Suggests SCOTUS Vacancy Before Leaving Office

obamaPresident Obama said that keeping the Senate in Democratic hands is important because of the possibility of a Supreme Court vacancy, suggesting that he will have the opportunity to appoint at least one more justice before he leaves office in January 2017, the Wall Street Journal reports.

The blog post goes on to describe the likelihood that President Obama will have such an opportunity, stating, “Since 1789, 43 men have served as president across 56 four-year terms. By Law Blog’s count, 46 of those 56 terms — or 82% — overlapped with at least one Supreme Court vacancy.”

President Obama has appointed two Supreme Court justices since assuming office: Justice Elena Kagan and Justice Sonia Sotomayor.

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Editorial: Montana Ruling Clouds Democracy’s Future

The Supreme Court has “blocked off sensible solutions” for reasonable campaign finance rules, a USA Today editorial commented on a ruling in a Montana case this week.

The court overturned a century-old Montana anti-corruption law that prohibited independent expenditures by corporations on state elections. The law had held up for decades with backing by governors and legislatures from both parties in a state where political corruption, and the big money enabling it, earlier was  king.

In striking down Montana’s law, the Supreme Court found that it conflicted with its own landmark Citizens United ruling from 2010. In Citizens United, the court had said it did not believe unlimited political expenditures would give rise to corruption or its appearance. The editorial disagreed:

“Perhaps the majority has not been paying attention. Already this year, several congressional primaries have been won by candidates who benefited from a flood of last-minute money into independent advertising. In some cases, voters didn’t know the identity of the people giving this money or the donors’ agendas.”

The editorial concluded, “The future, it seems, might not be so far removed from Montana’s past.”

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Justices Scalia, Breyer Testify Before Senate Panel

Americans “should learn to love gridlock” from Washington, Supreme Court Justice Antonin Scalia told the Senate Judiciary Committee Wednesday, because the framers of the Constitution made it possible.

“The framers would say, yes, ‘That’s exactly the way we set it up. We wanted power contradicting power (to prevent) an excess of legislation,’ ” Justice Scalia said, according to a Los Angeles Times article.

Justices Scalia and Stephen G. Breyer discussed the role of justices, and their own thoughts on the Constitution and the law, in a rare appearance by justices before the panel. It was scheduled to coincide with the recent observance of Constitution Day.

On related topics:

  • Justice Breyer was asked whether justices should be required to follow the Judicial Conference Code of Conduct, according to a New York Times article.  “Every asset has to be listed in depth, and it’s all filed,” he replied. “I don’t think that the life of the judge in terms of ethics is less restrictive than the life of any other member of the government.” Read more
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NRA Judge-Targeting 'In Pursuit of Power'

The NRA has gone from no involvement in Supreme Court nomination battles to engaged opposition to President Obama’s two nominees. Why?

In Slate, Dahlia Lithwick explores an answer in an essay entitled “Shoot First, Confirm Later.” She questions why, when Solicitor General Elena Kagan “endorsed the NRA’s view of the Second Amendment,” it ended up opposing her aggressively.

Lithwick examines the influential lobby’s opposition to Sonia Sotomayor, to Kagan, and most recently its failure to endorse Senate Majority Leader Harry Reid of Nevada, as punishment for his backing Kagan for the Supreme Court. Reid is a politician who had sought to “appease the NRA over the years,” she writes. With the NRA’s stance on Reid, “it became clear that judicial nominations are now a life-or-death issue for the group,” Lithwick asserts. Read more

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Republican McConnell Urged 'Rise Above Partisanship'

Shortly after Solicitor General Elena Kagan was nominated to the Supreme Court, observers highlighted a book review article she wrote years earlier depicting the confirmation process as a “vapid and hollow charade.”

It turns out Kagan, who recently won confirmation to the high court, wasn’t the only player who had penned an old article that could be useful in examining the process today.

Republican Senate Leader Mitch McConnell of Kentucky wrote a law review article in 1971, according to a Washington Post commentary by Ruth Marcus, in which McConnell described how a true statesman should respond to a president’s Supreme Court nomination:

“It will always be difficult to obtain a fair and impartial judgment from such an inevitably political body as the United States Senate. However . . . the true measure of a statesman may well be the ability to rise above partisan political considerations to objectively pass upon another aspiring human being.” Read more

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Kagan Confirmed by 63-37 Senate Vote

The Senate has voted 63 to 37 to confirm Solicitor General Elena Kagan to the U.S. Supreme Court, handing President Barack Obama his second appointee for the nine-member court.

The vote Thursday for Kagan, a former Harvard Law School dean who has not served as a judge, fell short of the 68 votes cast last summer to elevate then-Judge Sonia Sotomayor to the high court.

Kagan, with her strong academic credentials and no judicial paper trial, did not draw an all-out confirmation fight, and her successful vote today had been assured. She is expected to take the oath of office soon.

When she takes her seat on the Supreme Court, it will mark the first time in history three female justices have served simultaneously.

Economic news and the Gulf oil spill have preoccupied some elected officials this summer, and the three-day floor debate in the Senate this week over her confirmation to succeed Justice John Paul Stevens did not draw widespread public attention.

In a debate marked by partisanship, Kagan, 50, was criticized by Republicans as a liberal and political activist who would be unable to deliver impartial justice. Democrats, on the other hand, defended Kagan as a legal scholar who could put her intellectual talents to work seeking consensus on a sharply divided court. Read more

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Senate Launches Debate over Kagan

With partisanship on display, the Senate began debating on Tuesday President Obama’s nomination of Elena Kagan, 50, to the Supreme Court.

Five Republican senators have signaled their intention to vote for her confirmation, and their Republican colleagues who oppose Kagan’s confirmation have pledged not to filibuster.

With Democrats nearly united in her support, Kagan is expected to win a confirmation vote late in the week.

Sen. Jeff Sessions of Alabama, the senior Republican on the Senate Judiciary Committee, contended Kagan would be “an activist, liberal, progressive, politically-minded judge who will not be happy simply to decide cases but will seek to advance her causes under the guise of judging,” according to a New York Times article.

But Sen. Patrick Leahy, D-Vt. and the committee chairman, said Kagan “will do her best to consider every case impartially, modestly with commitment to principle and accordance to the law,” the Los Angeles Times reported.

If Kagan is confirmed, it would mark the first time in history the nation’s highest court has had three female justices sitting simultaneously. Kagan, the U.S. solicitor general, has no experience as a judge; she has served as dean of Harvard Law School, and as a lawyer and policy adviser in the Clinton White House.

One Democratic senator, Ben Nelson of Nebraska, has said he will not support Kagan’s confirmation. She is not expected to win as many votes as the 68 that then-Judge Sonia Sotomayor garnered last year.

You can learn more about Kagan from Gavel Grab and from the JAS Replacing Justice Stevens page.

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Kagan Would Sit Out Some Cases

If she is confirmed, you can count Elena Kagan out from 11 cases the Supreme Court will hear in the opening weeks of its next term.

Those are cases in which Kagan has said she will step aside, or recuse herself, given her contact with them as U.S. solicitor general. But her planned recusal in these cases is only one part of the overall picture, a New York Times article states.

“[Her] confirmation hearings…highlighted how vague the standards for recusal by Supreme Court justices are,” the article reports.

Some Senate Republicans tried to elicit a promise from Kagan, for example, that she would not hear any legal challenges to the federal health care overhaul law.

They failed. The nominee replied that no only had she nothing to do with the legislation, or litigation against it, but she hadn’t given her views on either. Read more

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Confirmation Votes Part of 'Partisan Battleground' Now

Don’t expect to see Senate votes to confirm a Supreme Court nominee soon that resemble Justice Anthony Kennedy’s 97-0 tally in 1988 or Justice Ruth Bader Ginsburg’s 96-3 total in 1993.

A Wall Street Journal article discusses this trend and offers a conclusion: “Supreme Court confirmations are now part of the partisan battleground, with groups on both sides aggressively pressuring senators.” But the article also asks scholars and senators why nominees for the highest court now face such strong opposition votes in the Senate.

Tracing current trends back to the defeat of nominee Robert Bork in 1987 and the nasty fight over Clarence Thomas four years later, the article suggests confirmation battles have become almost a ritual in our culture wars:

“These fights whetted appetites on both sides to claim judicial scalps, and, over time, judicial battles developed into a full-scale part of culture wars.” Read more

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Real Change Coming to Supreme Court?

Perhaps the common view that the Supreme Court’s ideological lineup will not change if Elena Kagan is confirmed actually misses the point, a veteran political commentator says.

David Broder suggests in a Washington Post commentary that the high court  might change in unforeseen ways with three female justices on it. His column is headlined, “With another woman, the Supreme Court can’t help but change.”

Broder bases his idea heavily on his experience when female editors and reporters brought gender diversity to the news business. They changed its culture, asked political candidates new questions and “saw the candidates’ lives whole,” he writes. The chauvnistic culture of the campaign press corps changed dramatically too, he adds. Broder concludes:

“I don’t know how having three strong-minded female justices serving simultaneously for the first time will change the world of the Supreme Court. But I will not be surprised if this small society does not change for all its members.” Read more

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