Gavel Grab

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Senate Panel Endorses Kagan by 13-6 Vote

The Supreme Court came a step closer today to having three female justices, for the first time in its history.

A generally polarized Senate Judiciary Committee voted 13-6, with one Republican joining the Democratic majority, to endorse confirmation of Elena Kagan. The full Senate is expected to confirm Kagan, the former Harvard Law School dean who was selected by President Obama as his first solicitor general, when it votes within the next few weeks.

Sen. Lindsey Graham of South Carolina was the lone Republican to break ranks with his colleagues on the committee, the Los Angeles Times reported.

“What’s in Elena Kagan’s heart is that of a good person who adopts a philosophy I disagree with,” Graham said, according to an Associated Press article. “She will serve this nation honorably, and it would not have been someone I would have chosen, but the person who did choose, President Obama, I think chose wisely.”

Other Republican senators questioned whether her political viewpoints would take priority over the law, and they criticized what they depicted as her liberal agenda on various issues, including abortion and gun rights and military recruitment at Harvard law.

“Ms. Kagan’s record shows that she supports an activist judicial philosophy, and that her personal and political views drive her legal views,” said Sen. Orrin Hatch, R-Utah.

Democratic senators, on the other hand, applauded her as fair-minded and committed to deciding cases based on the law, not on ideology. Her top rating from the American Bar Association for the Supreme Court bench also was noted, according to a Reuters report.

Obama issued a statement, according to USA Today, saying the committee vote was “a bipartisan affirmation of her strong performance during her confirmation hearings.” Read more

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Politics Behind Looming Kagan Vote Examined

Senate Republican leaders are pressing to gain more “no” votes on the Supreme Court nomination of Elena Kagan than the 31 cast against nominee Sonia Sotomayor when Sotomayor was confirmed last year, NPR reports.

What’s it all about? By way of explanation, NPR quotes Curt Levey, director of the Committee for Justice, as saying Solicitor General Kagan is “probably no worse in terms of judicial activism” than Justice Sotomayor.

Levey identifies, however, “a different political situation. I think a strong vote against Kagan, perhaps even 40 votes, will definitely send a message about the type of nominee Obama can send to the Senate in the next two years, especially if the Republicans win a bunch of seats.”

The Senate Judiciary is expected to vote Tuesday on Kagan’s nomination, with the Senate likely to follow soon. Her confirmation is widely expected.

On Monday, Kagan said in response to questions from Republican senators that she wasn’t involved in developing the U.S. response to a lawsuit challenging the new health care law, and she didn’t give her views about it. She said she would consider stepping aside from hearing challenges to the law on a case-by-case basis, the Associated Press reported. Read more

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More Senators Announce Votes on Kagan

Democratic Sen. Arlen Specter said Elena Kagan “did just enough to win my vote” for confirmation to the Supreme Court.

But in a USA Today op-ed outlining his views, the Pennsylvanian also said Kagan continued a practice of Supreme Court nominees hedging their answers to senators. “But her non-answers were all the more frustrating, given her past writings that the hearings were vacuous and lacked substance,” he wrote.

Republican Sen. John Cornyn of Texas said he will vote no on Kagan. “I don’t believe that any nominee should be confirmed to the Supreme Court unless he or she has made clear that they will protect the fundamental rights written in our Constitution, and will not abuse judicial power to impose their own policy standards on the American people,” he was quoted by The Washington Independent as saying.

The Judiciary Committee, to which both senators belong, is expected to vote July 20 on Kagan’s nomination to succeed Justice John Paul Stevens, and to support her confirmation. Read more

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On Supreme 'Judicial Modesty'–or Not

If so many nominees for the Supreme Court pledge an approach of judicial modesty, as Elena Kagan has, why do they typically end up voting to increase their own powers and to impose preferred policies in the name of interpreting the Constitution?

That’s a question Stuart Taylor lays out, then wrestles with in an intriguing Washington Post commentary entitled “Supreme immodesty: Why the justices play politics.”

It’s not so much that justices are insincere, he suggests, when they say they set aside their personal politics to rule on cases. Here’s one plank of Taylor’s analysis:

“[N]one admits that interpreting the Constitution is an inescapably subjective enterprise in which policy and political preferences unavoidably play a big part. This is especially true at the Supreme Court, which is not strictly bound by its own precedents.”

If one accepts his premise, it can lead to another question that Taylor poses:

“Imagine yourself as a justice, confronted with highly persuasive legal arguments on both sides of most big cases. How would you break the ties? By flipping coins? Or, perhaps, by persuading yourself that the interpretations that suit your policy preferences are the better ones?”

As for pledges  of judicial modesty that are broken, Taylor concludes with a view about approval-rating politics:

“Perhaps..the justices know that as long as they stop short of infuriating the public, they can continue to enjoy better approval ratings than Congress and the president even as they usurp those branches’ powers.”

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Senate Committee to Vote on Kagan July 20

The Senate Judiciary Committee has postponed until July 20 a vote on whether to confirm U.S. Solicitor General Elena to the Supreme Court.

The panel agreed Tuesday to a request by the committee’s senior Republican, Sen. Jeff Sessions of Alabama, for the one-week delay, which is permitted by committee rules and is customary in such high-profile cases.

Sessions voiced concerns about Kagan’s nomination, according to a Wall Street Journal article. “Fundamentally, the nominee lacks the experience and the intellectual rigor that you develop from full-time practice of the law or from serving as a judge,” Sessions said. “She’s had neither of those experiences and I think it shows from her testimony.”

Chairman Patrick Leahy, D-Vt., disagreed.  “I will cast my vote in support of Solicitor General Kagan’s nomination,” Leahy was quoted by Bloomberg as saying. “I believe she will ably fill the seat occupied for decades by Justice [John Paul] Stevens with dignity and honor.”

Some activists urged her to step aside, if confirmed, from hearing a legal challenge that states have submitted to the federal government’s health-care overhaul. A Wall Street Journal editorial also took that tack, saying it was likely she expressed an opinion on the litigation as a senior Justice Department official. Read more

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In Writing, Kagan Fields Senators' Questions

Just when you thought Elena Kagan had nothing more to say publicly, the Supreme Court nominee has furnished in response to senators’ written questions a few of her…opinions.

Answering questions from Senate Judiciary Committee Republicans, Kagan “rejected several influential liberal legal theories…, distancing herself from intellectual movements conservatives have criticized,” according to a Wall Street Journal article. They included an international legal theory put forward by Harold Hongju Koh, the chief lawyer for the State Department, and also the Critical Legal Studies movement.

Kagan selected Justice Oliver Wendell Holmes as the most influential justice of the past century.

Asked to name the most poorly reasoned Supreme Court case of the past 50 years, she reached back slightly further to 1944 and named Korematsu v. United States, upholding the internment in this country of Japanese Americans, according to a Politico article. Read more

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Kagan Still Sparking Controversy

Even as Supreme Court nominee Elena Kagan seems on a steady march toward Senate confirmation, dissenting voices still are heard.

Sen. John McCain, R-Arizona, announced in a USA Today column that he will not support her due to stance on military recruiting when she was Harvard Law School dean.

The Washington Times published another editorial critical of Kagan, this one seizing on her answer at her confirmation hearings last week to a hypothetical question about the federal government requiring citizens to buy and eat three vegetables and three fruits per day.

Her response “made clear that Solicitor General Kagan views the federal government’s power as almost unlimited,” the editorial concluded.

An opinion piece by George Curry in The Washington Informer asserted that two lawyers’ groups, the National Bar Association and the Lawyers’ Committee for Civil Rights Under Law, “have so far refrained from endorsing the former Harvard law dean amid questions about whether she would be a strong civil rights advocate on the court.” Both groups are partners of Justice at Stake. Read more

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What if Former Fundraiser Kagan Judges Donors?

As Harvard Law School dean, Elena Kagan raised more than $300 million between 2003 and 2008.

Does her success raise issues if Kagan is confirmed to the Supreme Court, and then sees Harvard donors appearing before her as attorneys or parties in a case? An Associated Press article raises the question, and it seeks out experts for their views:

  • To require Kagan as justice to recuse herself from a case, the link probably would not be close enough if lawyers or law firms who gave money to Harvard were to represent parties appearing before the court, said Arthur Hellman, a University of Pittsburgh law school professor.
  • But it’s “a closer question” if a party in a case before the court was an individual or company who donated to Harvard at her request, Hellman said.
  • “You need two things,” said Stephen Gillers of the New York University Law School. “You need a contribution so large that we could say that Dean Kagan would feel a sense of great personal gratitude and then you need a case in which the donor had a significant personal or business interest before the court.”

With her confirmation hearings concluded, Kagan  awaits a vote by the Senate Judiciary Committee, which is expected later this month. Justice at Stake covered the Kagan hearings on Twitter, and you can check out the Twitter reports by clicking on http://twitter.com/justicestake. You also can learn more about Kagan from Gavel Grab and from the JAS Replacing Justice Stevens page.

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Life Tenure for Justices Questioned

If confirmed, 50-year-old  Elena Kagan could become the longest-serving Supreme Court justice ever if she retired at the age of Justice John Paul Stevens, who is 90.

And while life tenure for justices is seen by many as ensuring judicial independence, some critics are asking whether life tenure makes for the best jurisprudence. The debate gets a close look in an ABC News article, headlined “Elena Kagan Hearings and Politics of Life Tenure on Supreme Court.”

Some key points from the article:

  • Fifty-three percent of the people surveyed in a recent CNN poll said they “disagree” that Supreme Court justices should serve on the bench as long as they show “good behavior.”
  • Northwestern University law school professors Steven Calabresi and James Lindgren, advocating Supreme Court term limits, said life tenure is inappropriate now “given the enormous power that Supreme Court justices have come to wield.” They also said that with fewer regular high court vacancies, the political stakes are high and “the confirmation battles have become much more intense.”
  • But “lifetime appointments contribute to the stability of the law,” said Richard Vining, who teaches political science at the University of Georgia. He contended the “problem” of life tenure is exaggerated, for the most part. Read more
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Crosscurrents of Kagan Hearings Examined

Tea Party, Democratic Party, Republican Party.

All of them figured into the political crosscurrents behind the recently completed confirmation hearings for Supreme Court nominee Elena Kagan.  Here are a few of the latest reports about the swirling politics, published as Congress took a recess for the Fourth of July.

A New York Times article discussed the first Supreme Court confirmation hearings of  “the Tea Party era.” When Republican senators asked about the Constitution’s commerce clause and whether she was a “legal progressive,” the article said, the questions were “not just about academic abstractions, but about the very ideas that animate the rebellious, conservative movement.”

In Slate, Dahlia Lithwick contended that Republicans “inadvertently made the case for confirming Elena Kagan” by driving home, with their attacks on Justice Thurgood Marshall, the same message the Democrats wanted to make–”that the court has a critical function to play when the other two branches of government let the American people down.”

Democrats, meanwhile, used a bumper sticker-style headline reading “Kagan for Justice” on a political website to sign up voters and raise money for the Democratic National Committee, the Associated Press reported.

Two more Republican senators, Mitch McConnell of Kentucky and Lisa Murkowski of Alaska, announced they would oppose confirmation of President Obama’s U.S. solicitor general to replace Justice John Paul Stevens, according to a CNN article. Read more

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