Kagan?

[Kilmoll the Sexy]

What do you reasonable liberals truly think of Kagan? Obviously I am going to have a bit of bias considering her liberal background, but she does have a history of not being on the side of the Constitution....even writing an article that the government should be able to restrict free speech if it deems it harmful. It really seems from everything I can find about about her that she is one that is going to be another of those pure partisan types that is going to rule with her beliefs rather than with the Constituion....and that is just what we do not need more of on the Supreme Court.

My feeling is almost that this is a throwaway pick by Obama to give the conservatives a win so he can bring in his real pick with less of a battle. I just can't see the GOP allowing this one through after Sotomayer.

[Funkmasterr]

I don't know much about her politically, but I do know that I saw several articles about her as I was checking my Yahoo email today. The first thing that came to mind was that she would be much more at home wallowing in a lake somewhere in Kenya.

Seriously has to be one of the ugliest women, ever.

[Spang]

Seriously has to be one of the ugliest women, ever.

It's a good thing looking good isn't in the job description.

[Funkmasterr]

Something we can agree on!

[Xyun]

i have no idea who she is and i havent bothered to look it up. but if obama picked her i'm cool with it. thats the beautiful thing about obama, i trust his judgement.

[Sueven]

She's basically guaranteed to get confirmed, assuming that she doesn't have an epic meltdown during the confirmation hearings.

Liberals aren't particularly thrilled with her. She's got a professional reputation as a ideological bridge-building type, rather than as an ideological advocate. But she's given just enough hints of liberalism to allow liberal groups and people to slowly, grudgingly endorse her. The legal left is tolerating the pick, but are absolutely not thrilled about it.

Kagan is someone who will try to work within the structures of precedent and legal theory while on the court. She's not going to be someone who writes opinions that fall well outside traditional lines of legal thought-- Clarence Thomas is the clearest example of this type, but Stevens and Scalia can fall into that category as well, at times. She'll be much more like a Breyer or Roberts type. Liberals don't like this because they want their own Scalia. Conservatives don't like this because she's still a liberal. She's pissing off the right and the left but will be tepidly accepted, which is pretty much the hallmark of the Obama presidency so far.

[Gzette]

She's basically guaranteed to get confirmed, assuming that she doesn't have an epic meltdown during the confirmation hearings.

Liberals aren't particularly thrilled with her. She's got a professional reputation as a ideological bridge-building type, rather than as an ideological advocate. But she's given just enough hints of liberalism to allow liberal groups and people to slowly, grudgingly endorse her. The legal left is tolerating the pick, but are absolutely not thrilled about it.

Kagan is someone who will try to work within the structures of precedent and legal theory while on the court. She's not going to be someone who writes opinions that fall well outside traditional lines of legal thought-- Clarence Thomas is the clearest example of this type, but Stevens and Scalia can fall into that category as well, at times. She'll be much more like a Breyer or Roberts type. Liberals don't like this because they want their own Scalia. Conservatives don't like this because she's still a liberal. She's pissing off the right and the left but will be tepidly accepted, which is pretty much the hallmark of the Obama presidency so far.

good post.

Considering John Paul Stevens was viewed as the main liberal advocate on the court, this could be deemed a win for conservatives.

[Kilmoll the Sexy]

well I know she is one of the 3 most conservative choices he had.....my biggest concern is that she has a written history of not caring about the 1st and 2nd amendments. The former being a huge concern for liberals and the latter being a big conern for conservatives. Personally I think I would rather have seen Garland get a nomination.

[Gzette]

A cursory look into her 1st amendment issues didn't raise any red flags for me. The worst I could find was that she wrote that it would be nice if racist rhetoric disappeared, but did not advocate censoring it.

She wrote:

I take it as a given that we live in a society marred by racial and gender inequality, that certain forms of speech perpetuate and promote this inequality, and that the un-coerced disappearance of such speech would be cause for great elation.

My emphasis.

The other issue I saw is that she argued against allowing corporations to spend on political campaigns, a ruling that has been widely vilified and in my opinion one of the most egregious errors in ruling the court has made in recent memory. Furthermore she argued that non-profits should not be able to send money to known terrorists agencies (which they argued was a form of speech) despite their intentions to help eliminate the radical intentions of those organizations by encouraging more humanitarian efforts. That argument was recently upheld by the court and makes sense on both sides of the aisle IMO.

But to judge Kagan on her arguments as solicitor general is not very fair to her. Her job is to advocate the opinion of the administration. And a good lawyer will always do that with zeal. We have little to judge her on, which is why I think she has a clear path to approval. (I'm not saying that's good, it just is what it is.)

The NYTimes has an article up that kind of pisses me off.

http://www.nytimes.com/2010/06/30/us/30kagan.html?hp

Under questioning by the chairman of the Senate Judiciary Committee, Senator Patrick J. Leahy, Democrat of Vermont, Ms. Kagan said she thought it would be inappropriate for her to talk about how she might rule on pending cases or cases “that might come before the court in the future” — or to answer questions that were “veiled” efforts to get at such issues.

Moreover, she said, she also now believed that “it wouldn’t be appropriate for me to talk about past cases” by essentially grading Supreme Court precedents, because those issues, too, might someday come again before the court.

In a 1995 book review, Ms. Kagan wrote that recent Supreme Court confirmation hearings had taken on “an air of vacuity and farce” because nominees would not engage in a meaningful discussion of legal issues, declining to answer any question that might “have some bearing on a case that might some day come before the Court.” She called on senators and future nominees to engage in a much more open and detailed discussion of legal issues.

Ms. Kagan attributed the idea that her 1995 book review went too far to Senator Orrin Hatch, Republican of Utah, saying he had counseled her in a private meeting earlier in the confirmation process to be more cautious in her testimony. Mr. Hatch was not in the hearing room on Tuesday when Ms. Kagan mentioned his advice.

“I basically said to Senator Hatch that he was right, that I thought that I did have the balance a little bit off and that I skewed it too much towards saying that answering is appropriate, even when it would, you know, provide some kind of hints,” she said. “And I think that that was wrong. I think that — in particular, that it wouldn’t be appropriate for me to talk about what I think about past cases — you know, to grade cases — because those cases themselves might again come before the court.”

As the morning unfolded, Ms. Kagan repeatedly refused to offer an opinion about Supreme Court rulings — even the 2000 case of Bush v. Gore, which the Supreme Court itself said was limited to the facts of the disputed presidential election and had no precedential value. She said that it remained possible that the larger issue of whether or when the court should intervene in a disputed election could still come up.

Still, Ms. Kagan made an exception for this year’s ruling in the case of Citizens United, in which the conservative bloc on the court struck down legal limits on corporate spending to influence elections. Democrats on Monday repeatedly raised that case in their opening statements, portraying it as “conservative judicial activism,” and Ms. Kagan — who had argued the case in defense of the campaign finance rules — said she had convinced herself in preparing for those arguments that the position she had taken was correct.

Talk about backpedaling. Though it is the easiest path to confirmation. It is ironic that she credited changing her tune to advice from Sen. Hatch. I guess he likes her.

[Kilmoll the Sexy]

With this background, here comes Elena Kagan. According to Fox News, and quoted by Capitalism Magazine, "In a 1996 paper [in the University of Chicago Law Review] 'Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine," Kagan argued it may be proper to suppress speech because it is offensive to society or to the government."

[Soreali]

i have no idea who she is and i havent bothered to look it up. but if obama picked her i'm cool with it. thats the beautiful thing about obama, i trust his judgement.

Just out of curiosity and for shits and giggles..... Why??? Exactly what has he done to earn that trust?

[Xyun]

Because unlike most other politicians, Obama does or tries to do what he promised in the campaign the vast majority of the time. He is an honest and moderate man.

[Aabidano]

Certainly did what he was paid to do on healthcare. The parallel to Cheney and the non-ruckus over energy policy is astounding.

I don't see how either side could have big problems with Kagan, it's like she's gone out of her way to stay neutral.

[Winnow]

i have no idea who she is and i havent bothered to look it up. but if obama picked her i'm cool with it. thats the beautiful thing about obama, i trust his judgement.

Obama is 100% corrupt. He paid for his seat in Illinois. You should be scared to death at any decision made by him. Any decision made by Obama at this stage is designed to keep his presidential party lifestyle rolling for four more years, further destroying our nation.

[Xatrei]

I'm not enthusiastic about Kagan, but I don't really see a lot of negatives to her. She's the kind of nomination I expect from the least-bad candidate we chose. She's not half as worrisome as the SCOTUS appointees made when the most-bad candidates win.

[Gzette]

With this background, here comes Elena Kagan. According to Fox News, and quoted by Capitalism Magazine, "In a 1996 paper [in the University of Chicago Law Review] 'Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine," Kagan argued it may be proper to suppress speech because it is offensive to society or to the government."

I guess this is the difference between me and you Kilmoll. I posted the actual direct quote from her paper, and you quoted how Capitalism Magazine and Fox News spun it. Don't buy into that bullshit man. Don't be stupid. Read the quote. Notice the word I bolded. Uncoerced ... as in if that speech disappeared without force it would be a good thing. We all can agree that it would be nice if racism and discrimination disappeared. That was what she said. The capitalist article is a joke.

I'm surprised no one has mentioned the Harvard thing with military recruiters yet.

[Gzette]

Here's a descent article explaining the 2nd amendment question. Much more thorough than paraphrasing blogs. Some basically state she'd rather no one have a gun and that she is against self defense as a legal reason for gun ownership. Hate to paraphrase the article myself, so I hope you read it. But if you don't, you'll find that she was referring to a man claiming his constitutional rights were violated when he was arrested for carrying an unregistered handgun.

She is on the record stating she was comfortable with the Supreme Court's 2008 ruling against the handgun ban in DC.

I don't know why I'm so bothered by this, but it is irking me that the fact checking is so lacking. I'll try to find that actual memo in question.

[miir]

Why does it bother you?
Right wing media is notorious for not doing fact checking and reporting things that are blatantly untrue.

[Kilmoll the Sexy]

Here's a descent article explaining the 2nd amendment question. Much more thorough than paraphrasing blogs. Some basically state she'd rather no one have a gun and that she is against self defense as a legal reason for gun ownership. Hate to paraphrase the article myself, so I hope you read it. But if you don't, you'll find that she was referring to a man claiming his constitutional rights were violated when he was arrested for carrying an unregistered handgun.

She is on the record stating she was comfortable with the Supreme Court's 2008 ruling against the handgun ban in DC.

I don't know why I'm so bothered by this, but it is irking me that the fact checking is so lacking. I'll try to find that actual memo in question.

First, Miir, if you have nothing useful to add, then shut the fuck up. That is why I asked for the reasonable liberals and not the Winnow type version of liberal asshats for a response.


As to this particular case and why it bothers me....

It is not the fact that the person in this case got into legal trouble. He broke the law (even though unconstitutional) and that is that. What bothers me is that someone who has been nominated for the Supreme Court publicly stated she was not sympathetic to someone whose entire case rested on a violation of the Constitution (or in this case there were actually TWO completely valid violations of the Constitution).

The other thing that bothers me about this is what she has been saying in the last few days about this case and some other incidents. She is saying that she was basically just a mouthpiece for her liberal masters when she said those things. Well why the hell should we believe that she won't be controlled by her liberal masters on the bench then?

[Kilmoll the Sexy]

I guess this is the difference between me and you Kilmoll. I posted the actual direct quote from her paper, and you quoted how Capitalism Magazine and Fox News spun it. Don't buy into that bullshit man. Don't be stupid. Read the quote. Notice the word I bolded. Uncoerced ... as in if that speech disappeared without force it would be a good thing. We all can agree that it would be nice if racism and discrimination disappeared. That was what she said. The capitalist article is a joke.

I'm surprised no one has mentioned the Harvard thing with military recruiters yet.

There is much much more to it than that. The quotes I have been looking for and had read I cannot find again and I really do not want to read her entire 105 page document for the relevant parts. The clip I pulled off of whatever right wing site it was on had it pretty well summarized.

This right wing rag has more of her direct quotes tied in it....with a fairly reasonable summary that will give more depth.

http://www.freerepublic.com/focus/f-new ... sts?page=1

[Sueven]

Kilmoll:

Her first amendment views do not appear to be particularly absolutist, and that may be troubling to first amendment absolutists. But the majority of legal types-- both conservative and liberal-- are not first amendment absolutists. Her views seem to fall within a fairly mainstream range.

She's also not particularly sympathetic to second amendment rights, as you noted. Of course, she's replacing someone who is definitely not at all sympathetic to second amendment rights, so it won't make much of a difference. In addition, she stated in her hearings that she views Heller and McDonald as settled precedent-- precisely the same thing that Roberts and Alito said about Roe v. Wade, Planned Parenthood v. Casey, etc.

In other words, while she might not be your ideal justice and might not share all your views, she's not particularly radical and simply reflects a fairly moderate version of the type of justice that a President with whom you stridently disagree about many things might select. I'd be pretty pleased with the pick if I were you.

She was thought to be the second most conservative pick under consideration, after Merrick Garland. Honestly, though, Garland is a liberal-- he's just a predictable liberal. He has a paper trail, so conservatives feel comfortable with the fact that he's a moderate liberal as opposed to a radical liberal. It's not really fair to call him "conservative." Kagan's jurisprudence will probably be similarly moderate. There's just a little more uncertainty with Kagan than with Garland-- that's the real difference.

Most of the real liberal candidates-- from Pam Karlan to Bryan Stevenson to Paul Smith-- never appear to have been under serious consideration. Diane Wood was the most liberal of the serious candidates, but is still pretty much right in the middle of the progressive legal spectrum. Personally, my top choice would have been Sid Thomas, a Montana Law grad and Montana-based judge who's a fairly moderate liberal (a bit to the left of Kagan and Garland) with a reputation as one of the most collaborative and cooperative judges on the bench.


Gzette:

The backpedaling is annoying. I think it's totally legit to refuse to answer specific questions that might come before the court-- like "is the individual mandate in the healthcare legislation constitutional?"-- especially without the benefit of a record, briefing, and oral argument. I don't have any problem with a nominee refusing to answer a question like that. But I do think that nominees should answer questions about their general approach to wide areas of jurisprudence. For instance, probing a candidate on their views regarding substantive due process, how they would determine which rights are protected by due process, what standards they would use to evaluate claims-- these questions are legitimate and should be asked and answered.

Kagan has been a bit more forthcoming than most-- she released more documentation than any nominee in history, and she gave some at least relatively in-depth answers to questions about constitutional interpretation that exceeded those given by Ginsburg, Breyer, Roberts, and Alito-- but it's a marginal step, and she absolutely could be doing more.

I think the reason that the hearings are such a farce is because the Senators are aware that Supreme Court Justice is a way more important and powerful job than United States Senator. So the hearings are their opportunity to lord it over someone who will be a bigger shot than they are, and god damn it, they're going to make the most of it.

[Kilmoll the Sexy]

I agree mostly....which is why you are not seeing me really bitch too awful much about her being the selection. I am mostly unsettled by the disregard to the Constitution she had, albeit in a non-judicial role.

[Siji]

I don't personally like or trust her, but can't really say why. I trust Obama's decisions but there's something about her.. I think I'd rather have someone that had hard opinions on a variety of subjects than someone that's like a blank slate of neutrality, and not neutral based on decisions but because of the lack of them.

[Boogahz]

I don't personally like or trust her, but can't really say why. I trust Obama's decisions but there's something about her.. I think I'd rather have someone that had hard opinions on a variety of subjects than someone that's like a blank slate of neutrality, and not neutral based on decisions but because of the lack of them.

This has been how I have felt about her from when the announcement was made. There was something...slick...about her that I haven't been able to really put my finger on.

[Funkmasterr]

I'm still having a hard time not thinking hungry hungry hippo.