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Is Kagan’s Confirmation a no-brainer?

In a not-too-surprising move, President Barack Obama nominated Solicitor General Elena Kagan to the U.S. Supreme Court yesterday. If confirmed, Kagan will replace Justice John Paul Stevens, the leading liberal voice on the Court.

Although Kagan’s nomination appears to be a ‘safe’ one, it may nevertheless entice strong opposition from Republicans. Obama’s nomination of Kagan is lauded by Democrats as a good choice for the following reasons:

• Kagan has been described as a consensus builder who will survive the confirmation process because she’s been through it already. In March, 2009, Kagan was confirmed as U.S. Solicitor General by a divided Senate 61-31. Kagan was able to garner support from 7 Republicans who reached across the aisle and voted for her confirmation.

• Kagan has no prior judicial experience. No prior judicial opinions will mean a quicker confirmation hearing as there will be no paper trail for critics to parse looking for language that is premonitory of judicial activism.

• Kagan is 50 years old. Her confirmation will mean a long tenure, thereby giving Obama the chance to leave a lasting imprint on American jurisprudence.

• If Kagan is confirmed, the Court will be more inclusive and more representative of the American population than ever before. There will be 3 women serving on the Supreme  at the same time.  The U.S. Census website reveals that females comprise approximately 50% of the U.S. population.  Kagan’s vote will be important when the closely divided high court decides contentious cases which impact women such as Roe v. Wade.

Some see Kagan’s lack of prior judicial experience as an advantage. On the other hand, some see it as a disadvantage because it yields less fertile ground for predicting Kagan’s ideology. However, Kagan’s lengthy history in politics and academia may give those willing to search a sneak peek into understanding the judicial philosophy of a future “Justice Kagan”. For example:

• Kagan’s opposition to on-campus military recruiting because of U.S. policy barring gays from serving openly in the armed forces gives some insight into how a Justice Kagan may vote when and if the military’s “don’t ask, don’t tell” policy comes before the Court.

• Kagan served in a paid position on an advisory board for Goldman Sachs – the latest example of greed in the financial industry. Kagan’s service on this board may prove useful in predicting how she may vote if and when lawsuits filed by the Securities and Exchange Commission involving financial reform come before the Court.

• In 2005, while serving as the Dean at Harvard, Kagan and 3 other deans of major law schools wrote to oppose legislation by Sen. Lindsey Graham (R-SC) to strip the courts of the power to review the detention practices, treatment and adjudications of guilt and punishment for detainees at Guantanamo Bay, Cuba. This letter may give some indication of how a Justice Kagan may vote if cases involving detainees at Guantanamo or trials for terror suspects come before SCOTUS.

• Kagan also clerked for Thurgood Marshall. After his death, Kagan’s wrote a tribute to Marshall which was published in a 1993 law review article. In the article, Kagan quoted from a speech Marshall gave in 1987 in which he said the Constitution as originally conceived and drafted was “defective.” She quoted him as saying the Supreme Court’s mission was to “show a special solicitude for the despised and the disadvantaged.” Some may argue that this shows Kagan’s propensity to set aside her role as an impartial judge and let her opinions, sympathies and prejudices influence her decisions.

• Kagan did not give tenure to any minorities while she was serving as Dean at Harvard Law School. Of the 32 tenure-track professors hired, 31 were White, and none were African American or Hispanic. Apparently no “qualified” minorities could be found.

Kagan’s lack of judicial experience may make some people uncomfortable.  But since when does judicial experience denote common sense and superior analytical ability? Just think about the Citizens United decision. Notwithstanding the judicial experience of the high Court’s conservative majority, they ruled that “We the People” includes corporations.

Kagan’s confirmation may be a no-brainer simply because the numbers are in her favor. With control of 59 votes in the Senate, she will probably get the job.
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2 Responses

  1. Another excellent article Wendy. We also have to look at her views of socialism, since she seems sympathetic to this system.

    Most of your readers probably have no idea about the Citizens United case. Obama vilified it during his State of the Union speech and it was clear that he never studied, much less read, that decision.

    Citizens United was barred from airing a movie about Hillary Clinton. During the oral argument, in front of the Supreme Court, the FCC basically said THEY have the power to prohibit a corporation from publishing books or movies about a candidate. Citizen’s United was going to release the film on cable t.v. video-on-demand system. (http://publicservice.evendon.com/CitizensUnited_v_FECM.htm)

    President Obama claimed that the Supreme Court had “reversed a century of law to open the floodgates – including foreign corporations – to spend without limit in our elections.” Well, the ‘constitutional scholar’ was wrong.

    The fact is that the Court overturned a federal ban on independent political expenditures by corporations and unions, and in so doing, it rejected the proposition that the government can decide who gets to speak and can ban some from speaking at all.

    First of all, the 100-year claim is completely wrong. In 1907, Congress passed the Tillman Act that banned direct contributions by corporations to federal candidates – there was no ban on independent political expenditures in the law. “Contributions” are funds given directly to candidates for their election campaigns; independent expenditures are funds spent by third parties on things like political advertisements without any coordination with the candidate.

    The Tillman Act was sponsored by South Carolina Senator Ben “Pitchfork” Tillman, probably the most vicious racist to ever serve in Congress. Tillman was a Democratic segregationist who was chiefly responsible for the imposition of Jim Crow in South Carolina after the end of Reconstruction when he was governor.

    This federal law, that so-called “progressives” like the President are constantly praising, was intended by Tillman to hurt the Republican Party – the party of abolition and Abraham Lincoln – because many corporations contributed to the Republican Party, not the Democratic Party.

    These corporations did not like segregation in the South – it cost them money and made it more expensive to sell their goods and services. Congress did not ban independent political expenditures by corporations and labor unions until 1947,

    Most people do not know this but you would think a ‘constitutional scholar’ from Harvard would.

    The President’s second point about those evil foreign corporations is also totally wrong. 2 U.S.C. § 441e bans all foreign nationals from directly or indirectly contributing to a federal candidate or a political party. It also bans all foreign nationals from making any independent political expenditures – and this ban was not overturned by the Supreme Court. The term “foreign nationals” is defined to include individuals, foreign governments, foreign political parties, and corporations “organized under the laws or having its principal place of business in a foreign country.” It is simply not true that Citizens United freed foreign corporations to make independent expenditures in American elections.

    If Obama didn’t understand or have knowledge of this, should we expect Kagan to have any?

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