NBC: Obama selects Elena Kagan for high court

[usregimechange]

Source: MSNBC

WASHINGTON - President Barack Obama has nominated U.S. Solicitor General Elena Kagan to serve as an associate justice on the U.S. Supreme Court, NBC News’ Pete Williams reported late Sunday night.

Kagan, 50, served as the Dean of Harvard Law School from 2003 to 2009. Obama nominated her to serve in her current post as solicitor general early in 2009, and she won Senate confirmation by a vote of 61-31. She is the first woman to serve as solicitor general of the United States.

She was widely viewed as a front-runner when Obama was considering candidates for a Supreme Court opening last year, but the president ultimately chose Sonia Sotomayor for the job.

Read more: http://www.msnbc.msn.com/id/36967616/ns/politics-supreme_court/

---

:bounce:

[IndianaGreen]

1. Barf!

The least qualified nominee since Clarence Thomas!

Some liberal critics have said that Kagan's views on executive power and the treatment of terrorist detainees are too conservative.

http://www.msnbc.msn.com/id/36967616/ns/politics-supreme_court/

[usregimechange]

5. Dean of Harvard Law, Solicitor General, Associate White House Counsel, SCOTUS clerk...

[IndianaGreen]

9. No judicial background of any kind, not even traffic court!

And you want to kick her up all the way to the highest court in the land?

[JDPriestly]

55. But, Kagan was already affirmed by this Senate as Solicitor General.

In theory, that makes it harder for Republicans who did not block her appointment as Solicitor General to block her appointment to the Supreme Court. If Republicans did not stop her appointment as Solicitor General, what grounds other than obstruction for the sake of obstruction could they have to stop her appointment to the Court?

Kagan's nomination puts Republicans in a bind. And that fact alone makes Elena Kagan one of the few people Obama could realistically nominate for the Court.

Here is what Above the Law theorizes about the reasons for Kagan's nomination:

. . . .
Kagan turned 50 a week and a half ago. One might well expect to get 30 lucid years out of her and another five or ten basically functional ones. When you’re talking about lifetime appointments in an increasingly fickle polity, longevity is a huge factor. It has to be.

. . . .

While some people feel this is a disadvantage, everything we know about Obama suggests Kagan’s lack of judicial experience is a huge plus in his eyes. The President made noises about “diversity of experiences” on the Court back in the campaign. And we’ve all seen how “No Drama Obama” has barely been able to keep his cool about the Citizens United decision. I bet he thinks that if any of the five conservative judges had spent more time in the rough world of professional politics, they would have seen the potentially disastrous consequences of unfettered corporate money in our electoral process.

That doesn’t make Obama right, but he is the President and so he’s the decider. Kagan is obviously not a politician, but she’s been in the trenches as a government lawyer. From her bio:

From 1995 to 1999, Kagan served in the White House, first as Associate Counsel to the President (1995-96) and then as Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council (1997-99). In those positions she played a key role in the executive branch’s formulation, advocacy, and implementation of law and policy in areas ranging from education to crime to public health.
Not just the theory of law, the “implementation” of law. I bet Obama likes that. The next time Justice Alito mutters “not true,” I think Obama wants Kagan to be standing there to politely remind him how elections work in this country.

. . . .

http://abovethelaw.com/2010/05/its-beginning-to-look-a-lot-like-kagan/#more-16350

Kagan apparently taught constitutional and administrative law and worked in the Clinton administration as well as academia.

But, not only does she entirely lack judicial experience other than perhaps clerking, but from what I can tell she only practiced law in a private firm for three years. (I may have missed something in her bio but that is all that I saw.) She apparently never argued a case before the Supreme Court. I question whether she every tried a case or even was the lead attorney on a case on which she was not representing the government. Very strange.

This information based on the Kagan bio on the following website:

http://www.whorunsgov.com/Profiles/Elena_Kagan

But, she is probably the best choice Obama could make. Time is running out for Obama. He does not need a distracting fight over his appointment to the S.C. at this time. Kagan is young, an expert on constitutional and administrative law and has been affirmed by this Senate once already.

A pragmatic choice, and, if nothing else, Obama is a pragmatist in all things.

[No Elephants]

92. By all means, always do the things to which Republicans are like to have the least objection.

Of course, they will object anyway. And then we can end up fighting hard for something we don't actually want. Or at least something the Democratic wing of the Democratic Party doesn't want.

Ptui!

[izquierdista]

129. Logic? You use logic?

Republicans are not bound by your silly logic, they can oppose anything at any time.

[FedUp_Queer]

68. Not to mention...

another Goldman Sachs toady.

[AngryOldDem]

145. That DQs her for me right there.

I guess she got a nominal fee for advising Goldman, but nevertheless. After the corporations-are-people-too ruling, we don't need to chance any more such decisions being handed down.

[grantcart]

73. most inane reply since your reply above

[Tx4obama]

86. 99.999% of traffic court judges don't have the education or the experience that Kagan has

Education: Princeton University, Worcester College, Oxford, Harvard Law School

Kagan was a law clerk for Judge Abner Mikva of the U.S. Court of Appeals for the District of Columbia Circuit and for Justice Thurgood Marshall of the U.S. Supreme Court.

More good stuff here: http://en.wikipedia.org/wiki/Elena_Kagan

[quaker bill]

102. This actually used to be normal

It is only quite recently that this became sort of a standard. Thw Warren Court had few justices with prior judicial experience.

[No Elephants]

112. I think only 41 of 109 had no judicial experience, and most of those were practicing lawyers,

public or private, for a substantial period of time, not academics or political appointees.

Besides, things in general, and law in particular, have changed a lot since 1953, when Warren was appointed, let alone when the other 41 were appointed. When the Constituiton was written, for example, you became a lawyer by apprenticing to another lawyer. You did not even need a high school diploma.


Warren himself had tons of experience that would give him insight into cases before the court, including military service during WWI, many years as a prosecutor and AG and three terms as Governor of California. That's very, very different from a career primarily as an academic or a political appointee. So, when we deal with the other nonjudges vs. Kagan, we are truly trying to compare apples and oranges and that often obscures issues, rather than shedding light on them.

However, my beef with Kagan is not her lack of judicial experience, although that does make it harder to predict what kind of Justice she will be.

[totodeinhere]

136. Yes I do. Look where all of the ones with vast judicial experience have got us.

I'll take Kagan over any of those "experienced" Republicans on the Court any day.

[No Elephants]

91. Roberts has great credentials.

[dsc]

7. that is nothing short of absurd

I won't say I am in favor of her right now, I am on the fence, but the notion she isn't qualified is outright absurd. She was Dean of Harvard Law and Solicitor General.

[IndianaGreen]

11. Can you elucidate Kagan's views on habeas corpus?

You can't, because there is no record whatsoever!

[dsc]

13. her views are quite different from her qualifications

Stevens, the man she is replacing, was never asked his views on any case that is the way it used to be. I do have some fear about her views on some issues but that is quite different from her qualifications for office. Roberts was qualified by any reasonable standard, his views are terrible and were good reason to oppose him.

[IndianaGreen]

17. She is not qualified for the Supreme Court, or even an appellate court

She hasn't even sat on the bench in state court, not even traffic court.

No judicial background, so there is no way to measure her temperament, a key element in any SCOTUS nominee.

[dsc]

22. Justices Warren, Jackson, and Black all never had been judges

to name three who turned out pretty decent all things considered.

[IndianaGreen]

23. and unlike them, Kagan has never held elective office

Warren was also a Republican, albeit one that today would be far to the left of Obama.

[dsc]

25. I don't think Jackson was elected to anything

but admit to not being sure. But I fail to see why election to the governorship of California or an Alabama Senate seat somehow qualifies you for Supreme Court.

[rpannier]

89. Justice Robert Jackson

Never graduated Law School
He apprenticed and passed the bar at age 21
He was appointed by Roosevelt General Council of the Internal Revenue Bureau (today IRS)
Assistant Attorney of the Tax office
Assistant Attorney for Anti-Trust
He did contemplate running for Governor of New York, but never did
He was Attorney General

It appears he never was elected to anything
I have a biography on all the Supreme Court Justices to Marshall
I can't find anything that says he was ever elected to anything

I would argue that his stint as US Attorney General makes him more qualified to sit on the SCOTUS than Kagan's Dean of Harbard law School

That does not mean that I think she is unqualified to sit. In your earlier post you commented that Roberts is qualified and he is.

I am not overly impressed with someones University credentials. Let's face it, most of the people who caused the financial mess we're in are graduates of some of the finest Universities in the world.
And,some of our best Presidents and Supreme Court judges never graduated college

Do I oppose her? No.
I don't know enough about her to oppose her (or support her nomination)

The only thing I truly dislike about this choice is that he seems to be going for the easy route again.

But, I'm not the President. I didn't sit in on the meetings when nominees were discussed.

I am happy with Sotomayor, so I'm willing to trust his judgment on this pick, as his last one hasn't disappointed

I am also aware, coming from a family that has produced federal judges, that these choices are a crap-shoot.
Bush I appointed Souter and we got a left-center judge
Eisenhower rued the day he appointed Gov Warren to the Court
Ford picked Stevens
Kennedy picked White who turned out to be a center-right homophobe
Roosevelt Frankfuter
The list goes on.

You never know

[mvd]

162. As far as I know, yes, Sotomayor hasn't broken from the liberal justices yet

I'll give Kagan a chance. I don't like some of her opinions, but they appear to be more in line with legalese than personal opinions. Also, what she has said hasn't differed from administration policy, so if she does disappoint on civil liberties, she just may be the kind of justice President Obama wants.

[No Elephants]

99. On civil rights, Warren was, I think, further to the left than anyone on the SCOTUS ever, except

Justice Douglas. Maybe Brennan, but I'm not even sure about Brennan. However, as AG of California, Warren had a significant role in interning Japanese.

Eisenhower said appointing Warren was the biggest mistake he had made in his 8 years of Presidency, a view no doubt influenced by Brown v. Bd. of Education.

[No Elephants]

123. None of those three are remotely comparable to Kagan and all of them were appointed many decades ago

Please see also Reply 112.

[usregimechange]

26. Oh get out of here, she was a law professor, nation's top lawyer, white house counsel, SCOTUS clerk

what else does she need?

[IndianaGreen]

29. What are her views on habeas corpus, telecom immunity, or even Citizens United?

You don't know because there is no record of what her views are.

[usregimechange]

34. which has nothing to do with our discussion of her experience

[IndianaGreen]

35. Her experience is that of a political appointee

and there is zero judicial experience.

[marshall]

157. Experience is SO last century...

The new kids on the block, the ones who are bringing change, don't have any experience yet because they represent the next generation. They haven't had a chance to develop any experience yet.

It's called on the job training.

[defendandprotect]

164. Let's look at it this way, any intelligent person should be fit for the court . . . I'm looking for

a humanist . . .

liberal/progressive --

[elleng]

32. What makes 'temperament' a key element for SCOTUS nominee, in your opinion?

[IndianaGreen]

37. Judicial temperament has always been a key factor in all judicial appointments

and it always comes up in confirmation hearings. Liberals were able to defeat some judicial nominations based on the temperament of the nominee, as seen in the reasoning used in their decisions.

[elleng]

46. Not sure of 'relevancy,' if its not a trial court.

Reasoning is entirely different from temperament, imo.

[No Elephants]

103. Like many things, it depends upon how you define it.

I've seen judicial temperament define as many things, including simple courtesy. Also respect for precedent. I realize that the SCOTUS is the one federal court that can overturn SCOTUS precedent. Still, it doesn't mean respect for precedent should not be a consideration when appointing a SCOTUS Justice.

Some say it is deciding a case narrowly, on the facts and law presented, as opposed to deciding on your own biases. Few would say any judge's preconceived notions should be the basis of a decision in a court case, even at the SCOTUS level.

Some say it is the opposite of "judicial activism" (another term whose definition varies wildly)>

Some say "judicial temperament" is, in reality, a meaningless term.

http://books.google.com/books?id=rHoqAAAAYAAJ&pg=PA66&lpg=PA66&dq=define+judicial+temperament&source=bl&ots=jhonPnv7n0&sig=9Tu7xCY848RX17_ZgbJVMx6Y79A&hl=en&ei=j-DnS4aBOIH68AbIyIC_BA&sa=X&oi=book_result&ct=result&resnum=8&ved=0CCQQ6AEwBw#v=onepage&q=define%20judicial%20temperament&f=false

But, as I said, you can't discuss whether judicial temperament should be a consideration when nominating a SCOTUS Justice until everyone agrees on what the term means for purposes of this discussion, if anything.

Regardless of whether any of us think it SHOULD be considered, Senators mention it again and again as a sine qua non for Justices (often when saying any litmus test is inappropriate).

[elleng]

125. No discussion without a definition of the term.

'Defining' aspects you mentioned are each discussed separately, as they should be.

[Q3JR4]

59. The constitution doesn't really require

that justices of the Supreme Court even have a law degree, so to say she's unqualified is probably not the case from purely a constitutional standpoint. Ultimately congress gets to decide what "unqualified" means, and if they accept her, I think that means she's qualified.

Kind of a "let's do it and see what happens" situation, in my opinion.

Q3JR4.

[No Elephants]

98. Things have changed since 1789.

I think she is highly qualified on paper, but so was Roberts; and I would not have wanted a Democratic President to nominate Roberts to the SCOTUS, either.

In fact, I was not all that happy with the Democratic Senators who voted to confirm that smirking, lying jerk.

Please see also, Reply # 97.

[suzie]

65. Are you a judge?

[No Elephants]

96. The guy who nominated her is not a judge. Neither are those who vote for or against confirmation.

[suzie]

142. I was a little startled at the demeaning sound of "hasn't even sat on the bench in

state court" in the original statement.

As if sitting on a Federal Appellate Bench without ever having sat on a trial level bench wasn't less of a qualification than sitting on the bench in a trial level state court.

[dotymed]

101. Her lack of judicial experience

may be good. It goes a lot to her perspective, sometimes, ideals are are more important, IMO. We need to end corporatism, Obama claims he wants to. If this lady agrees, and the case id brought in front of the SCOTUS again, she might help to reverse the previous, blatantly anti-individual, paid for, decision.

[No Elephants]

104. Implied in your post is that lack of judicial experience transalates to

a perspective that is somehow different from the perspective of those with judicial experieence. I don't know that that is so. I don't think you do, either.

Your post also implies that people with no judicial hold to their ideals more than people with judicial experience. Justice Douglas, to his dying day (or until he became senile, depending upon what you believe), was an idealist and had many years on the bench.

As far as corporatism, I'm sure anyone Obama nominates will be cognizant of the views of their benefactor on that issue. But, that is only one issue among many that will come before the Court.

Important to me is the balance on the Court. After Stevens retires, we will have four far religious right Justices, one liberal who is quite frail, one Democratic moderate and one whose perormance on the Court is not yet known, but who was described as a moderate before her confirmation. I don't think someone who seems center right is the best choice for balancing the Court.

[defendandprotect]

165. Agree with you . . . sadly!! Would have loved to see Eliz. Holtzman get it --

[Green_Lantern]

147. Indiana you're right...the last justice appointed with no judicial...

Experience was Rehnquist and he totally remade the court.

[No Elephants]

97. Things have changed a lot since Ford nominated Stevens.

I don't know anything about Stevens' nomination hearings, but I remember Alito's and Roberts's very well.

According to Stevens, one of the things that has changed a lot since Stevens is the court has gone further and further right. Each person who has taken the place of a retiring Justice has been more conservative than the Justice he or she replaced, "except maybe Ginsburg."

It is a disgrace to Clinton that the most liberal Justice on the current Court is Stevens, the Republican who is retiring. And it is a disgrace to Obama that he has not nominated someone liberal to replace Stevens to stop the Court's drift to the right, which gave you the Citizen's decision.

Now, it may be that Kagan, like Souter and Stevens, will turn out to be more liberal on the bench than she was before she ascended to the bench. But, I would have preferred less of a DLC appointment to begin with, so I don't have to pray she has an epiphany in the future.

[Name removed]

39. Deleted message

Message removed by moderator. Click here to review the message board rules.

[No Elephants]

94. No one is saying she is dumb.

[No Elephants]

95. IIRC, as Solicitor General, she went to court on one case.

Besides, she was Solicitor General bc Obama nominated her and the Republicans had no problem with that.

Being a SCOTUS Justice is an entirely different kind of job.

For me, the issue is not her credentials. Roberts had great credentials, but I would have been angry if Obama had nominated him. Heck, I wasn't even very happy with Democrats who voted to confirm the smirking, lying jerk.

[elleng]

33. What's the difference between 'least qualified' and 'I disagree with her views?'

[No Elephants]

105. His point seems to be that, because she has no judiicial experience, you

cannot determine what her views on any given issue are, or what her M.O. in deciding a case would be.

I think she is almost as well qualified as Roberts, but I would not expect a Democratic President to nominate Roberts.

I think she is a bad choice for the SCOTUS, given both the current composition of the Court and who she is replacing.

[sansatman]

63. The long history of nonjudge justices.

Who is qualified to sit on the Supreme Court is a determination made on a nominee by nominee basis by at least 51 US senators. There are no set rules for qualification. Although every past justice has been a lawyer, 41 of the 109 justices had no prior judicial experience.

But many of the justices who lacked hands-on experience as a jurist nonetheless had achieved a high level of accomplishment and stature as intellectual or political leaders prior to their nominations.

"Judicial experience is not a prerequisite, but what you look for in place of judicial experience is distinguished experience as a law professor or public official, and Miers really doesn't have either of those two," says Michael Comiskey, a political science professor at Penn State University at Fayette.



http://www.csmonitor.com/2005/1007/p01s03-usju.html

[No Elephants]

108. Comisky is wrong. The benefit of nominating a judge with no judicial experience

is supposedly that the judge has real life experience, such as hands on experience as a business executive, not that the judge comes from the "ivory tower" world of academia, rather than from the ivory tower world of the courtroom.

And many of the 41 of 109 Justices who had not been judges at least had been practicing lawyers, though perhaps not litigators.

The idea that a captain of industry should sit on the high court is way too RW for me, especially after the Citizens United Case. And President Carter recently urged that, if Obama chooses someone who has not been a judge, he (Obama) should NOT choose an academic. Said Carter:

"Professors who have not been judges are often poor justices. Take Douglas and Frankfurter. Nobody denies their brilliance, but they were iconoclasts, always writing for themselves, never caring if they were able to change the law, as long as their own opinions were pure. ... In the long run, Douglas and Frankfurter were irrelevant."

Instead, Carter said Warren, the former governor of California who had never been a judge, would be a model for Obama to aim for. "Earl Warren might not have been the greatest legal mind of the century, but he knew how to negotiate and build coalitions," Carter said.

With all due respect to Carter, though, Warren was an exception, a Republican who had served as AG and played a large role in interning Japanese, then went on to preside over the most liberal decisions in the history of the Court (aided by Douglas, whom Carter thinks is irrelevant. Go figure.)

Besides, today's politicians are a lot more rigid and partisan than those of the days of Warren or Stevens, or even Souter. Hell, even SCOTUS Justices today are more partisan than that. Just look at our Court today and all its 5-4 decisions. The only occasion swing vote is Kennedy's, and he was a Ford appointee (as was Stevens), again, a bygone era. A more partisan SCOTUS than modern times seem to give us naturally is the last thing we seem to need today.

As far as a politician who has never studied law on the Court today, absolutely no thanks. Our other two branches have plenty of those. An agency head, like the head of the SEC or the Department of the Interior, who are chosen (in theory) for their intelligence and knowledge in that field, maybe. But not, a politicain like, say, the first Mayor Daley of Chicago, or even Rose Kenedy's dad. Our other two branches have too many of those.

I don't know that I agree with the noticn that non-judge (or non lawyer) justices on the SCOTUS is a good idea at all these days. This is not 1789--when lawyers did not even have to finish high school or college, let alone law school. Law is too complex these days. However, Comisky pulled that bit about academics out of ear, IMO.

[NJmaverick]

106. LOL! She has forgotten more about law than you will ever know

what a joke your comments are

[Unvanguard]

2. She's a fine choice. Pamela Karlan would be better, but that wasn't happening.

Now, here's hoping one of the five conservatives retires soon--preferably before the midterms (haha, not likely).

[No Elephants]

109. Self delete.

[Javaman]

133. not one conservo-fascist will retire before Obama leaves office...

but it would be fun to watch the right wing go all apoplectic if one did. LOL

[New Dawn]

3. Obama's Kagan Choice Will Push Court to the Right

A must read article: http://www.commondreams.org/view/2010/05/09-0

[Unvanguard]

8. ...by replacing the most liberal justice, maybe.

Though that doesn't actually affect the Court's decisions much.

[No Elephants]

110. A liberal Justice doesn't affect the Court's decisons much?

[Unvanguard]

144. What is important is the deciding vote.

Dissenting opinions can sometimes be important also, but a dissenting opinion that only included Stevens probably wouldn't be too significant, and one that could attract a broader group of liberals would be likely to attract Kagan, too.

Just as in any institution that makes decisions by majority vote, partisan shifts (liberal in, conservative out, or vice versa) are what really matters. Kagan's differences from Stevens will make a difference in some cases, but not too many, and not the cases that most people on DU care most about.

[Tx4obama]

10. Nah, she will stay in the middle or go more LEFT ;) n/t

[liberation]

70. Some in DU wouldn't know what the left looks like if it wore a big banana suit and a flashing light

[Hamlette]

79. Why would the left be in a banana suit with a flashing light? n/t

[No Elephants]

113. Isn't everyone?

[Hamlette]

143. well then no wonder we can't recognize him/her/it.

[No Elephants]

111. LOL

[usregimechange]

12. Limited info but liberals delight other tea leaves:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x8300335

[Green_Lantern]

149. it's not that she'll shift it to the right it's that she may expand...

Executive power since she works for the current executive branch.

[Maccagirl]

4. So let the screaming begin

5, 4, 3, 2, 1.......

There simply has to be conflict and controversy!!!!!

[Hissyspit]

6. Meh.

[rosesaylavee]

14. The article at this link doesn't sound very good at all...

http://www.huffingtonpost.com/marvin-ammori/does-elena-kagan-disagree_b_569351.html

Is it certain that she is the choice? I hope not.

[IndianaGreen]

15. Blank Slate: There’s a lot we don’t know about Elena Kagan—because she’s never told us

Blank Slate

There’s a lot we don’t know about Elena Kagan—because she’s never told us.

Paul Campos

Kagan has published very little: three scholarly articles, two shorter essays, two brief book reviews, and two other minor pieces. Compare this record to those of the three other law professors most commonly mentioned as potential replacements for Justice John Paul Stevens: Stanford Law professor Pamela Karlan and Harold Koh, who became Yale Law's dean in 2004, each have more than 100, and Kagan's Harvard colleague Cass Sunstein, who also works for the Obama administration, has several hundred, including more than 20 books. All three have taken stands on numerous legal and political issues, in both the academic and the popular press. All have written extensively on how, in their view, courts should engage in legal interpretation in general and constitutional interpretation in particular.

In contrast, Kagan's opinions on these matters remain unknown. A nominee, even one who has never been a judge, doesn’t have to be a graphomaniac, but Kagan's publications consist largely of cautious descriptions and categorizations of current legal doctrines. And, quite self-consciously, they lack almost any critical component. For example, the thesis of Kagan’s 1996 article “Private Speech, Public Purpose” in the University of Chicago Law Review is that the Supreme Court’s First Amendment doctrine “constitutes a highly, but necessarily, complex scheme for ascertaining the governmental purposes underlying regulations of speech.” She flatly refuses to assert whether this scheme correctly interprets the First Amendment or whether it is a good method for regulating speech. “I have never proposed to show,” Kagan notes, “that the most sensible system of free expression would focus on issues of governmental motive to the extent our system does … I leave for another day the question whether our doctrine, in attempting to discover improper motive, has neglected too much else of importance.”

Similarly, Kagan’s 2001 article “Presidential Administration,” published in the Harvard Law Review, describes how presidential oversight of federal administrative agency decision-making increased significantly during both the Reagan and Clinton administrations. Yet the article is focused almost solely on outlines of the administrative process, rather than its substance, thus sidestepping almost all potential political controversy. Kagan reaches the unobjectionable conclusion that vigorous presidential oversight is desirable to the extent that it increases the political accountability of administrative agencies and furthers regulatory effectiveness. (That Kagan's academic writings tell us so little about what we want to know when evaluating a Supreme Court nominee is especially problematic given that she hasn't published for a general audience; we can't find evidence of her views in the mainstream media, either.)

<snip>

Recently, I asked a law professor—a former student of Kagan's and a political conservative—what she thought of Kagan's prospective nomination. After expressing warm admiration for Kagan's teaching abilities (and gratitude for the letters of recommendation Kagan wrote for her) the professor opined that, as a justice, Kagan probably “wouldn’t be political.” When I pressed her on what she meant by that, she explained that she believed that, if put on the Supreme Court, Kagan "would be a centrist." (Given the professor's own political inclinations, she clearly meant this as praise). Yet, when I asked about how she had made that judgment, the professor acknowledged that it was based on just a "gut feeling."

On the flip side, liberal law professor Walter Dellinger recently claimed in Slate that Kagan’s views on presidential power are “fundamentally progressive.” Yet the sum total of Dellinger’s evidence consists of the “Presidential Administration” article and a 2007 commencement speech in which Kagan criticized John Yoo’s torture memos. Given the uncontroversial nature of the Harvard Law Review article and the fact that the torture memos have been repudiated by the Bush administration’s own lawyers, this is pretty thin evidence for Kagan’s supposedly “progressive” inclinations.

http://www.tnr.com/article/politics/blank-slate

[undeterred]

18. Cass Sunstein would have been a better choice.

[IndianaGreen]

19. Diane Wood would have been an awesome choice!

Not some flunky without a record like Kagan.

[Rockholm]

20. So totally agreed!

[No Elephants]

117. Some say Wood would even have been easier to confirm, too.

[amandabeech]

168. Wood would also offer geographic diversity, religious diversity and non-Ivy League diversity.

Wood is from Texas and went to Univ. of Texas for undergrad and law school. She did some stuff in D.C., then went out to Chicago and is on the 7th Federal Judicial Circuit there. She is protestant.

All the remaining justices are from the East Coast and have Ivy League degrees. Six are Catholic and two are Jewish. Both women are from NYC, one from the Bronx and one from the Upper West Side of Manhattan, admittedly, before it became fashionable.

I'm a hick from the midwest who went to a big state U and then an Ivy League law school. There are some really decent people in the Ivies, but in my opinion, too many real assholes. There is a definite East Coast flavor to the Ivies. They are very clubby, and there is a group-think even in the most raucous of intellectual disagreements. They really do look down on state schools, except maybe U-C Berkeley. There is also very little socio-economic diversity. I mean almost none.

Judge Wood does not come from that milieu and she has decidedly liberal opinions. She has successfully taken on Judges Posner and Easterbrook in oral argument. They are tough, ideological conservative nuts.

Ms. Kagan is clearly very bright, and she has clearly worked hard and played her hand very well. She is not known for anything other than very careful legal scholarship. If she had made waves in her teaching positions, she wouldn't have been chosen to be dean at Harvard. Those folks can't make intellectual waves and still pull in the bucks from the alums.

Ms. Kagan will do her job, but I doubt that she will really add much to the current court.

[Hawaii Hiker]

21. And so would Harold Koh, Pam Karlan, Kathleen Sullivan, & Goodwin Liu

A democratic president w/a 59-41 majority in the senate picking a moderate like Kagan, would be like an NFL team w/the #1 draft pick trading that #1 pick for the 23rd. pick (and no other players, cash, etc.) - just makes no sense...

Hillary Clinton would have made better Supreme Court picks, she wouldn't have worried about pleasing Senators Hatch & Sessions....President Obama is more concerned about being liked by Republicans than going to bat for the liberal base that worked tirelessly & donated considerably to get him elected....

[Tx4obama]

31. Goodwin Liu is having hard time getting confirmation on Circuit Court

He would have even a harder time getting a SCOTUS confirmation.

[No Elephants]

118. Really? What are the Republicans going to do? Leave a SCOTUS seat empty for the next 2.5 to

6.5 years?

AFAIK, no appointment to the SCOTUS has been fillibustered, ever, even though lower court appointments have been fillibustered or allowed to die of inaction. Abe Fortas's promotion to Chief Justice was fillibustered, but there was inappropriate activity while he was a Justice-and, more importantly, he was already on the Court at the time and the President was tacitly in agreement with the Republicans on the promotion.

And, please see Reply 92.

I'm sick of giving into Republicans before they object because they MIGHT object. Reality is, they WILL object. Deal with it.

[DonCoquixote]

72. reliving 2008 are we?

Hillary had enough friends on the other side of the isle, not the least of which was her good friend John McCain. I would have voted for her were she the nom, but to paint Hillary as a liberal does not jibe with the facts.

[Hawaii Hiker]

116. No, not at all..Actually, I voted for Obama

in the primary and the general....But i just can't get excited about Elena Kagan, especially when there were some excellent liberal choices out there....

[No Elephants]

119. So, you're opposed to one appointment after another by Obama of Clinton re-treads, then?

So am I.

P.S. Painting Obama, a self-described New Democrat, does not jibe with the facts, either. Nonetheless, Obama painted himself that way during the primary in order to seem to the left of the Clintons.

I got foooled in 2007 and supported Obama, donating way more than I could afford. I started to wake up only after Obama started appointing his Cabinet. By then, he was President-Elect, though.

Fool me once....

[No Elephants]

120. We really don't know what Hillary would have done, once in office.

Does it make you feel better to imagine she would have not appointed Bill Clinton re-treads, just as Obama has? Or, that the wife of the great triangulator, the woman who said it was safe to vote for her or McCain, but not for her Democratic rival, would have been in the face of Senate Republicans more than Obama has been?

If imagining those things does make you feel better, by all means, daydream away, as long as you remain aware that it is your imagination at work, not necessarily any reality of which we have any reality-based evidence.

[DonCoquixote]

146. I know you did not mean to help me

But thank you for making my point better than I could have.

[skyounkin]

127. I have come to expect nothing else from

him since he got elected and started caving almost immediately.

[mr_liberal]

49. He'd be terrible.

He doesn't even believe in Roe v Wade. He has criticized "liberal judicial activism". I think Id even prefer Kagan to him.

[No Elephants]

114. Strongly disagree. The Court is desperate for some ideological balance.

Neither Kagan nor Sunstein is going to provide that.

[No Elephants]

115. Self delete.

[pmorlan1]

124. You're kidding? Cass Sunstein would have been a better choice?

As much as I don't like the Kagan pick I would choose her over Sunstein. At least with Kagan there is a small chance that she will surprise us. With Sunstein there is no surprise. He would have been a MISERABLE pick for progressives.

[bluestateguy]

16. Thanks, but I'll wait until hearing an official announcement from the president

Meanwhile, NBC is entitled to their OPINION.

[SnakeEyes]

28. "Opinion"? Not quite

This is reporting not commentating. It's a news article not an opinion column.

[bluestateguy]

30. Nope, nope, nope, nope

Not until I SEE the president himself officially announcing the new nominee will I believe it.

I'm fed up with pack journalism.

[lark]

163. Didn't you get the email from Obama?

She is the nominee.

[liquid diamond]

24. Well I doubt a Stevens type liberal would make it past

confirmation. Blue dog dems wouldn't go for it. And of course republicans would unite against such a nominee.

[IndianaGreen]

27. What's the point of elections if we continue to drift the country rightwards?

I wish we could have another William O. Douglas, but I would have been just as happy with a Diane Wood or a Leah Ward Sears, not a total unknown without any judicial record to assess her temperament.

[liquid diamond]

36. A judicial record is no guarantee of how a justice will vote.

Think David Souter. Do you think an unabashed liberal judge would get past this senate?

[IndianaGreen]

38. and zero judicial record is a reckless gamble with lifetime consequences!

[dflprincess]

41. So he's so afraid of conflict, that he doesn't even try?

Not a great quality in someone who claims to be a leader.

[Name removed]

44. Deleted message

Message removed by moderator. Click here to review the message board rules.

[SDuderstadt]

57. Y'know...

I read posts like this and I have to doublecheck which website I'm on.

I think we'll motor on just fine without you.

[No Elephants]

130. What basis do you have for that claim? Please see Reply# 118. And also # 92.

And, even if the Republicans were to filibuster a SCOTUS nommination for the first time in the history of the nation, I think America should see that.

[Tx4obama]

40. CNN said they 'confirmed' the report of it being Kagan. Must be true. n/t

[elocs]

42. Just scanning this thread I can see that somebody is really, really bent out of shape

over this pick. Where is the emoticon for an exploding head? I guess :nuke: will have to do.

[alarimer]

43. Well so much for progressive values.

We liberals and progressives don't count for shit with this guy. He had better not count on our votes anymore, either.

[SocialistLez]

45. I'm not shocked. It's not like Obama is a liberal or progressive. NT

[No Elephants]

126. During the primary, he tried to give the impression that he was.

I admit I got fooled. Well, on that score, anyway. The other reason I supported and voted for him in the primary was that I thought he had the best chance of winning the general election; and I think I WAS right about that part.

I don't think another candidate is going to fool me ever again, though. You know what Dummya said about getting fooled twice-and if anyone knows about being fooled, he does, LOL.

Bt, you're right, Obama is no liberal. (As for being "progressive," I have no idea what that word means. Seems as though Democrats use hat word, not matter how center right they are or how left they are.)

[Green_Lantern]

150. this really has nothing to do with Obama not being liberal...

I think Kagan was appointed because she is close to the executive branch and they know she favors their agenda. In alot of cases this will favor govt. activism in the economy which is good but it could also favor executive power over civil liberties.

[lobodons]

47. Bush got Alito and Roberts confirmed with Dem controlled Senate

and Obama cannot appoint and get confirmed an equal progressive to the court with a 9 fucking Senator majority. WTF!!!! Our government is out of control and not working for the people!!!

[No Elephants]

132. Obama CAN nominate a liberal to the Court. And his nominee would probably be confirmed. Please see

Reply 118.

Maybe it's Obama who is not working for Democrats who are anywhere left of center right.

[mr_liberal]

48. She seems like she has bought into the anti-porn feminist,

politically correct, hate speech... beliefs that are common or were common on college campuses (you can see this in her writings about the 1st Amendment). Thats what worries me about her. She doesn't seem to hold very strong views about free speech like you would expect a liberal to, or rather like you wold expect an old fashion liberal (like Stevens) to. Many liberals today seem to be different. i dont consider them liberals though I call them leftists.

But anyhow thats what worries me about her, not this other stuff. So in that (free speech), ironically, she seems too much of a leftist to me, rather than too conservative.

[Tumbulu]

51. well good as I am an anti-porn feminist

and I am sick and tired of the "liberal" catering to the sexist desires of the sort of people who think porn is some sort of right.

[TheWraith]

58. Yeah, those horrible people and their "free speech," "freedom of choice," fuck that!

We all need to live by a strict moral code rationed out by a self-selected minority. :sarcasm:

[Tumbulu]

151. porn is not about anything other than dominance

of the female and degradation of the sexual. Mostly wrong wingers love it- why in the world would liberals like something that degrades over half of the population?

You pro-porn looneys can all complain, I am very happy that a serious intelligent woman is the nominee.

I'm quite sure Palin loves porn. Hint: your position on porn is a an IQ test.

[Green_Lantern]

159. porn isn't always sexually degrading or dominating of women...

There are different types of porn. Judging adult industry models as stupid whores degrades them too.

[TheWraith]

167. You are completely wrong in so many ways.

If you find sex degrading, then that is your own problem, and it's one that exists in your head rather than in the real world. In any event, you have exactly as much right to enforce your own views of morality onto others "for the public good" as the wingnuts do to ban gay sex--none at all, and a hearty "fuck off" to anyone who thinks they do have that right.

[Tumbulu]

171. sex is not degrading- porn degrades sex

and it incites violence against women.

I was in Africa in the early 80's and learned of women being raped thanks to some porn being shown by some Swedes at a beach hotel. The guys working at the hotel wanted to imitate what they saw on the films. And it was not a particularly violent porn, but violent enough to hurt the women around the beach hotel.

Sex is a wonder at the center of life.

Porn has nothing to do with sex except that it tries to make money off of it's magic and thus destroys it's real power to connect people to each other.

I have a right to protect the beauty of sex in my life and those around me by rejecting this form of capitalistic exploitation.

[Democat]

66. Free Speech is a right - it's in the US Constitution!

Not that the Constitution means much to people anymore.

[harry_pothead]

75. Porn is a right.

It's called the freedom of expression of consenting adults.

[harry_pothead]

77. That's not good.

Anti-porn feminists (the ones who try to get it banned) are our version of the Religious Right. They think they know what's best for everyone, including the women who choose to be in porn.

[Green_Lantern]

152. I'm not sure feminists want to ban porn...

I just think they're saying that it gives men a very unrealistic fantasy view of sex and women that's hard for real women to compete with. Women are expected to be perfect and always being willing to satisfy.

[harry_pothead]

166. I've heard the claim, but I disagree with it.

I look at porn and the woman I am with and I have a perfectly healthy sex life. We both want to satisfy each other and we do.

I understand what that argument about porn is saying, but I don't think it's supported by actual evidence.

[amandabeech]

169. Yup. Wood would be better. n/t

See my earlier post.

[woo me with science]

50. It's a shame that we have come to a place where no record is a plus.

I'm sure her having no record made her a more attractive candidate for nomination. The country has become so partisan and the hearings so contentious that a blank slate is actually preferred these days.

[No Elephants]

134. What evidence can you cite to support the claim that blank slate is actually preferred these days?

[woo me with science]

140. What evidence can you cite that the sky is blue?

:eyes:

[amandabeech]

170. Well, Obama did not have a particularly thick written record, either.

That troubled me then, too.

[Joanne98]

52. Well, this will make the republicans happy and we know that's all that matters!

:sarcasm:

:grr:

[salguine]

60. Whenever I say stuff like that, my posts get deleted.

[Ter]

62. I don't exact see them jumping for joy

Gonna have to check out the Freek Republic.

[AllentownJake]

87. Oh, Barack could pick Scalia and the Free Republic crowd would be angry

Seriously, people really need to stop judging whether a policy is good or bad on Republican reactions.

Give you a hint, if the democrats do it, they are angry.

[No Elephants]

135. Or pretend to be

[MN TN]

53. I'm not very familiar with her

Does anyone have much information?

[IndianaGreen]

54. Stare at a blank piece of paper

and you will know as much about her views on abortion rights, habeas corpus, etc., as everyone else.

She has zero judicial experience, only 2 years in private practice, and has served as a political appointee.

[mvd]

64. Probably best not to get too excited or too negative yet

The hearings usually don't tell us a lot, but they might give us a hint. Then, we have to see how she rules. I'm going to wait and see on this.

[No Elephants]

128. What will you do if you wait until she is confirmed and then decide she is too far right?

Justices serve for life unless impeached and you don't impeach a judge simply for deciding differently from your preference.

Isn't it better to formula a position before your Senators vote on her confirmation?

Then again, that assumes that Senators give a rat's tail about how voters feel anymore.

So, maybe you're right. I'd just say I'd either take a stand before confirmation or just not ever worry about taking a stand.

[Bluebear]

82. Here's a cheery little tidbit

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x8303524

[Tx4obama]

56. Info

Bio: http://en.wikipedia.org/wiki/Elena_Kagan
A Case FOR Kagan http://www.huffingtonpost.com/lawrence-lessig/a-case-for-kagan_b_551511.html
A Case Against Kagan http://www.salon.com/news/opinion/glenn_greenwald/2010/05/08/kagan/index.html
Evidence mounts, Kagan will fit in nicely on the liberal left of the court http://tinyurl.com/28zj8af
And here's an informative article: http://www.huffingtonpost.com/2010/05/09/elena-kagan-supreme-court_n_569499.html?page=38&show_comment_id=46754016#comment_46754016
AP article - Kagan had rapid ascent to high court nomination http://hosted.ap.org/dynamic/stories/U/US_SUPREME_COURT_KAGAN?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2010-05-09-23-13-38

Hope that helps some :)

p.s. Also, I read somewhere that Obama has known her since the early 1990's.

[Tx4obama]

67. 9750 Words on Elena Kagan

9750 Words on Elena Kagan
More than you ever wanted to know
http://www.scotusblog.com/2010/05/9750-words-on-elena-kagan/

[wickerwoman]

88. thanks for the link

it's very informative and even-handed

:hi:

[mvd]

61. It's a safe choice. I'm reserving judgment until after the hearings

I can't see her as less liberal than Sotomayor, but replacing Stevens should have had balance in mind.

[grantcart]

74. well that is entirely too subdued and rationale for DU

[liberation]

69. Ha Ha Ha HAHAHA HAHAHAHAHAH

Is this for real?

[Justitia]

71. I really, really wanted Diane Wood. -eom

[Tx4obama]

84. I really, really wanted Harold KOH. We don't always get what we want. -eom

[Hardrada]

93. We're not even getting what we need.

And it would be good to continue to have a Protestant on the court since they (a majority of the believers in ths country) will now be unrepresented. And this WILL be an issue.

[Bodhi BloodWave]

121. How do you know you are not getting what you need?

[Hamlette]

76. Since Tea Partiers/Beck are all experts on the constitution, hard to them to say SHE'S not qualified

I'm a tad sick of the loony right telling me what is and what is not constitutional.

Now let them say you have to be a judge first in order to be qualified to interpret the constitution.

ha!

[AllentownJake]

78. LOL

Of course he did. The most moderate and wishy-washy of the picks.

I so cannot see myself voting for this guy in 2012.

[JeffR]

80. What a shock!

:eyes:

[AllentownJake]

83. Do expats vote? nt

[JeffR]

154. This one does.

[usregimechange]

81. Have you looked through the following?

http://upload.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x8300335

[AllentownJake]

85. We'll see how she turns out

I highly doubt Eisenhower thought he was getting what he got when Earl Warren got cozy with his lifetime appointment.

[No Elephants]

137. Justices like Warren, Stevens and Souter are the exception, not rule.

I don't think you appoint someone age 50 in the hope he or she will make a dramatic change in views held all their adult lives.

[tranche]

153. I love how Naderites bemoan Obama's failure to pick liberal enough Justices to counter Bush's picks.

[fascisthunter]

155. that makes two of us

[Divine Discontent]

90. I would say he's a moderate, at best, and his actions imply moderate, so I guess this is as expected

so, meh...

My hope is that she is every bit the liberal she should be based on her background, and even goes further left than anyone expected.

We need a liberal to replace the liberal leaving - and we need another liberal to replace a right wing nut like Alito, the creepy Thomas, or the nasty cafone, Scalia!

[usregimechange]

158. I will bet you money she will not be a swing vote on the court

[Elmore Furth]

100. Viola Canales

http://www.dailykos.com/story/2010/4/17/858186/-Kagan-is-Gay-Rumors-Prove-Were-Still-an-Adolescent-Nation

[NJmaverick]

107. Very solid choice! Well done!

:toast:

[No Elephants]

138. LOL

[pmorlan1]

122. A Blank Slate

Another missed opportunity for this cowardly administration. Once again winning is the be all and end all for them. They make their decisions based upon what the Republicans will think. It makes no difference what her views are (very little is known) just so long as they get a confirmation. I agree with Greenwald...we may be witnessing a Democratic president actually moving the Court to the RIGHT. I'm so done with this administration. They have sold out progressives at every turn and they don't deserve our support.

[No Elephants]

141. I dislike such positions of hers as I know about from articles she has written.

See sources in Reply # 139.

[Odin2005]

131. BOOOOO!

[No Elephants]

139. Yet another highly disappointing appointment by President Obama.

Of course, being a Supreme Court appointment, this one is much more disappointing than, say, appointing Rahm Chief of Staff. At least we knew Rahm's appointment would end in 8 years, at the outside.

But, make up your own mind, unless you are either in such idolatry of Obama or in such disdain of Obama that facts are irrelevant to you.

http://www.scotusblog.com/2010/05/9750-words-on-elena-kagan

http://en.wikipedia.org/wiki/Elena_Kagan

http://www.salon.com/news/opinion/glenn_greenwald/2010/04/13/kagan

http://www.salon.com/news/opinion/glenn_greenwald/2010/05/08/kagan

http://www.huffingtonpost.com/marvin-ammori/does-elena-kagan-disagree_b_569351.html'


See also a number of LBN threads about her since April.

Unitary executive, indefinite detention for those who ALLEGEDLY aid terrorists and free coffee and bagels for students.

So thrilled. Not.

[Green_Lantern]

148. This may be bad...she's too close to the President as SG...

I'm afraid she'll be biased towards the executive branch when cases are brought dealing with executive power. I'm not saying she's corrupt or Obama wants tyranny but as SG she has defended expansion of executive power in a war time setting.

Stevens would never have let executive power gone unchecked.

[marshall]

161. That can cut both ways

I don't think Obama would put someone on the court who would let executive power go unchecked--sooner or later the shoe will be on the other foot, surely at some point during the next thirty or more years that Kagan could sit on the court.

[Zorra]

156. Didn't she work for Goldman Sachs a few years ago? n/t

[AngryOldDem]

160. Did some advising for them; don't think she was on the payroll.

But still...