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Elena Kagan for U.S. Supreme Court?

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Started 2 years ago by pilsner
Latest reply from gramarye

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pilsner

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Supreme Court justices have more power than the president because the SCOTUS has the final say on many matters.

Republican Presidents have been nominating outspoken, corporatist, activist right-wingers to the bench. Democratic Presidents have been naming centrists.

How is it that the court is becoming more conservative in the Obama era? Sotomayer replaced the more liberal Souter. It looks like Kagan will replace the liberal stalwart John Paul Stevens.

Supreme Court historian Jeffry Toobin has known Kagan for almost 30 years (since their first days at Harvard Law School.) And doesn't offer the kind of ringing endorsement that you'd expect from a friend.

http://www.newyorker.com/online/blogs/newsdesk/2010/05/elena-kagans-nomination.html#ixzz0ndr22ccb

What do others think about Kagan, thumbs up or thumbs down?

Posted 2 years ago #
pilsner

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Supreme Court nominations show just how far American politics have moved to the right the past 35 years.

Republican President Ford named John Paul Stevens to the Supreme Court. At that time Stevens was a centrist juror. He became the most liberal juror while on the court. It's unimaginable that the next Republican president would name someone like Stevens to the Supreme Court.

Chief Justices Warren and Burger were also named by Republican presidents and they made many rulings that were considered liberal such as Brown v Board of Ed.

Posted 2 years ago #
Tigertree
771 N. High St.
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You could use a lot of work on your tactics of engaging people in conversation. Though, I suspect that isn't really your intent.

Posted 2 years ago #
Rick Carraway

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Kagan's a brilliant woman that will bring many unique qualities to the bench.

The Supreme Court does not have the final say on matters, and is not more powerful than the president.

As to the notion that the Court is becoming more conservative under Obama, that's utterly false. The Court will be no less left-leaning than it has been since the Federalist Four + Kennedy is still intact. However, with a liberal wing that is potentially more likely to persuade Kennedy to join their side, the Court may very well shift to the left under Obama.

Posted 2 years ago #
pilsner

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Tigertree wrote >>
You could use a lot of work on your tactics of engaging people in conversation. Though, I suspect that isn't really your intent.

I share my world view and others are welcome to share their own.

Posted 2 years ago #
pilsner

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Rick Carraway wrote >>
Kagan's a brilliant woman that will bring many unique qualities to the bench.
The Supreme Court does not have the final say on matters, and is not more powerful than the president.
As to the notion that the Court is becoming more conservative under Obama, that's utterly false. The Court will be no less left-leaning than it has been since the Federalist Four + Kennedy is still intact. However, with a liberal wing that is potentially more likely to persuade Kennedy to join their side, the Court may very well shift to the left under Obama.

Kagan is certainly brilliant and qualified. Only the wingnuts are disputing that.

But as Jeffry Toobin says, she's mostly a blank slate. Obama won in a landslide. Progressives deserve a replacement of Stevens who is an outspoken progressive.

The idea that Kagan will build more consensus than the liberal Stevens could is b.s. Scalia, Alito, Thomas and Roberts almost always rule against the common person except when it comes to gun rights.

Scalia wrote an opinion that the government has the power to enforce laws against sodomy between a married husband and wife. Jail for a blowjob from my wife. The guy is off his fucking rocker.

The Supreme Court is more powerful than the president, IMO. Look at Bush v Gore. The majority ruled that Florida should stop counting the votes because as Scalia said, "It would irrepairably harm Bush's legitimacy to be president." That was a judicial coup d taut. No, many of us will never "get over it."

Look at rights of personhood for corporations. They did not come from legislatures. Those rights came from the SCOTUS.

There's no debate that the SCOTUS gets the last word on Constitutional matters and can throw out any law a majority decides is unconstitutional.

Posted 2 years ago #
Rick Carraway

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Kagan's not as much of a tabula rasa as you are extrapolating from Toobin's piece. Surely, the specifics of views on the issues of the day are largely unarticulated. But she has clerked for hero, Thurgood Marshall, and worked effectively for the last two Democratic presidents. She's not a wildcard. Not knowing where a judge specifically stands in advance isn't a bad thing, though. It's certainly not a disqualification. Indeed, it would be one to know in advance.

Kagan clearly believes in an evolving Constitution. Is she as ideal a candidate for liberals as Diane Wood might have been? Perhaps not. But she remains an extremely strong nominee.

As to Scalia: He has made no bones that he finds homosexuals and homosexuality repugnant, and he has used his textualist toolbelt to skewer gays whenever possible. He's not the key, though. The key is Kennedy.

As to SCOTUS being more powerful than the president, a case or two does not an argument make. Certainly, SCOTUS made an egregious and bizarre "one-time only" decision in Bush v. Gore, but your characterization of that ruling as a coup is hyperbolic at best. The electoral process should have been allowed to continue, but remember too that the Court system is also what allowed it to get as far as it did in opposing that which Katherine Harris would have done.

As to Citizens United, the Court does not and will not have final say. Congress may create a new law whenever it wants to to circumvent the Court's holding. And the president may sign it. SCOTUS decides what the law is; but Congress can always try again.

Posted 2 years ago #
Tigertree
771 N. High St.
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It is more an issue of the way you share it than the fact that you share it.

Posted 2 years ago #
bman
New Albany
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Pilsner I agree, I worked way too hard, knocked on way too many doors, registered way too many voters, made far far too many phone calls and donated too much money to get Barack Obama elected and have him dumb down the Supreme Court and allow the Scalia's to run the country. I would do a little dance if Scalia would get caught in a gay love scandal.

Posted 2 years ago #
jackoh
The Village
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Rick Carraway wrote <a
As to Scalia: He has made no bones that he finds homosexuals and homosexuality repugnant, and he has used his textualist toolbelt to skewer gays whenever possible.

Does being gay violate a provision of the Constitution? If so, which one?

Posted 2 years ago #
Displaced Columbusite

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Rick Carraway wrote >>
As to Citizens United, the Court does not and will not have final say. Congress may create a new law whenever it wants to to circumvent the Court's holding. And the president may sign it. SCOTUS decides what the law is; but Congress can always try again.

While I agree with your premise, as soon as the new law Congress has enacted is challenged, the Supreme Court can find a way to deem it unconstitutional again.

Posted 2 years ago #
Displaced Columbusite

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Rick Carraway wrote >>
As to SCOTUS being more powerful than the president, a case or two does not an argument make.

I also find this agreeable, as FDR's "court packing plan" during the New Deal era tends to show that if a President wants to he can find a way to stick it to the Court to have it "see things his way" (for instance, nothing in the Constitution says the Court has to be made of 9 Justices and often has not been). While the Court has the final power to declare legislation constitutional or not, they tend to curtail their power and quite often defer to the executive branch.

Of course when discussing the Supreme Court there is no shortage of differing opinions.

Posted 2 years ago #
Rick Carraway

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JackOH,

Of course not! In fact, the Constitution protects homosexuality.

Displaced,

That's not quite true. The Court can't take action until a challenge reaches it. And it will have to find a way to invalidate a law. And there'll still be an opportunity to circumvent the ruling. Look at how states and schools have gotten around the Court's restrictions on affirmative action...

And I think that though I agree about the Court-packing plan of FDR, that's rather anomalous in and of itself.

Posted 2 years ago #
Displaced Columbusite

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Rick Carraway wrote >>
JackOH,
Of course not! In fact, the Constitution protects homosexuality.
Displaced,
That's not quite true. The Court can't take action until a challenge reaches it. And it will have to find a way to invalidate a law. And there'll still be an opportunity to circumvent the ruling. Look at how states and schools have gotten around the Court's restrictions on affirmative action...
And I think that though I agree about the Court-packing plan of FDR, that's rather anomalous in and of itself.

Right, I had stated as soon as it is challenged again (and God knows with how litigious our society is it will be challenged again) along with how our appeals system works, if the Supreme Court wants to hear the case they can grant certiorari when/if it makes it to that level and at some point it will make it to that level by someone's challenge. As for finding a way to invalidate the law, that is the easy part.

These Justices are masters at using means to get to an end; they often know what end it is they want to achieve before the case is even before them, they will then use the attorney's briefs to find a way to get to the end they desire and then use the case time to attempt to convince the other Justices to see things their way. Both you and Pilsner seem to have some background in the area (quite possibly attorneys) so I am assuming you have read several Supreme Court cases and have seen some poorly written opinions and have seen some masterfully written ones. The good ones use a fantastic way of weaving the arguments to fit the desired ends. While I don't necessarily see eye to eye with Scalia on politics this is something he does quite well in my humble opinion.

As for affirmative action, do you have specific examples of cases that have gotten around the rulings? Which rulings are you speaking of that are not being followed? Gratz, Grutter, Seattle Public Schools? I am not familiar with the specifics (other than a few cases such as those above).

I will grant you the FDR example was anomalous but it was meant simply as an example, just attempting to show that even though the Supreme Court theoretically has more power than the President because of its ability to declare several items unconstitutional such as executive privilege (ex. Nixon and his taped conversations during Watergate investigation) or declaring that a President can not have a stay on tort actions while in office if that tort had nothing to do with active duties (Clinton and his sex scandal issues); that even with all the ability they seem to hold on paper, they often defer to Congress and the Executive instead of practicing that power.

Posted 2 years ago #
Rick Carraway

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Displaced,

With regards to affirmative action and race-conscious policies (the PICs decision), several schools and states are side-stepping Court-made restrictions on considering race by looking instead at socioeconomics, at whether students are (or would be, depending) first-generation college students, at whether a student is eligible for free school lunches, etc.

I completely agree that the Court tends to have an end in mind, and that it finds a way to get there, on many controversial issues. And Scalia is very good at it. No matter what, for example, he's going to find a way for corporations to have certain first amendment rights.

But those who have to interpret the Court decisions are capable of manipulating words, too, to get to a desired end. And that's why the Court, in my opinion, isn't more powerful than the president.

Consider the Court's ban on the line-item veto. Out with that, and in with a rise in presidential signing statements, which are essentially de facto vetos that, in fact, go well beyond that which line-item vetos allowed.

Posted 2 years ago #
Displaced Columbusite

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Rick Carraway wrote >>
Displaced,
With regards to affirmative action and race-conscious policies (the PICs decision), several schools and states are side-stepping Court-made restrictions on considering race by looking instead at socioeconomics, at whether students are (or would be, depending) first-generation college students, at whether a student is eligible for free school lunches, etc.
I completely agree that the Court tends to have an end in mind, and that it finds a way to get there, on many controversial issues. And Scalia is very good at it. No matter what, for example, he's going to find a way for corporations to have certain first amendment rights.
But those who have to interpret the Court decisions are capable of manipulating words, too, to get to a desired end. And that's why the Court, in my opinion, isn't more powerful than the president.
Consider the Court's ban on the line-item veto. Out with that, and in with a rise in presidential signing statements, which are essentially de facto vetos that, in fact, go well beyond that which line-item vetos allowed.

I hear you on the interpretation front, that's what makes the study of law (or perhaps more aptly put, rhetoric) interesting. Whether someone looks at items in a textualist manner or an interpretist one, there will never be a shortage of views and certainly makes for a cramped legal arena, keeping attorneys employed.

As for the first paragraph, I will have to do some more research (if/when there is ever time for that) on the subject in order to have anything further of relevance to say. Although, it would seem that another equal protection argument will be just around the corner and not based on race, but on socioeconomic stature, and finding a way to elevate that to strict scrutiny or at least a heightened scrutiny (I believe it has already been attempted but a few distinguishing facts can get the Court to hear a new argument).

Posted 2 years ago #
pilsner

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Most people don't realize the ramifications of the Citizens' United ruling.

Consider that Exxon's profits were $46 BILLION last year. If they set aside just one-tenth of their profits to buy and blackmail politicians with campaign contributions or the threat of contributions to opponents it would amount to $4.6 billion.

Obama and McCain raised a little over $1 billion combined in 2008, (Obama $750 Billion, McCain $238 billion.)

That means that Exxon alone could easily have four times the stake in an American election than all U.S. citizens. And, Exxon is just one company!!!

Non-appointed judges will be the most easy offices for corporations to buy and blackmail, IMHO.

And, keep in mind that foriegn-owned companies are not prevented from contributing limitlessly to candidates too.

The Citizens United Supreme Court ruling causes politicians to be very careful not to piss off major corporations such as BP and Exxon as it struck down the Tillman Act and McCain-Feingold Campaign Fundraising laws.

No one seems to want to address this issue here at CU as I've posted it in several threads. Citizens' United seems to be the complete take-over by Wall Street interests of our government. Am I missing something?

"Fascism should more properly be called corporatism because it is the merger of state and corporate power." -- Benito Mussolini

Posted 2 years ago #
Rick Carraway

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Displaced, you may very well be right. We'll just have to see what happens.

PIlsner, I think your concerns are unfortunately spot-on. Corporate expenditures now have no limits and do not have to be filtered or restricted so long as they companies spend the money themselves (they still can't contribute to candidates directly...most of McCain-Feingold remains intact).

This wasn't the first time the Court declared that companies had free speech rights, of course. But it was the first time the Court affirmatively said that unlimited expenditures counted as speech, and that it could not be regulated. On this point, Justice Stevens writes a beautiful and powerful dissent, arguing that a company's political campaign expenditures are not speech.

Posted 2 years ago #
pilsner

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Two progressive Constitutional lawyers debated Elena Kagan's nomination on Democracy Now with Amy Goodman:

<snip>

LAWRENCE LESSIG: Well, I think that from the experience IÃ¢â‚¬â„¢ve had with Elena, which is now more than twenty years, I think that she has exactly the right values and exactly the right skill that this justice will need. This is the fourth justice in the non-conservative or non-right-wing bloc of this right-wing court. And what that means is she needs to have the ability to persuade the fifth, so that we can get five votes for values and positions that we believe in. And I think what sheÃ¢â‚¬â„¢s demonstrated more than anything else is she has exactly that skill.

AMY GOODMAN: Glenn Greenwald, your thoughts about Elena Kagan?

GLENN GREENWALD: Sure. Well, IÃ¢â‚¬â„¢ve been arguing for essentially a month now that the principal problem with her is that itÃ¢â‚¬â„¢s impossible to know what she thinks about virtually anything. She has a few law review articles sheÃ¢â‚¬â„¢s written, a couple of snippets of opinions sheÃ¢â‚¬â„¢s expressed, but, by and large, sheÃ¢â‚¬â„¢s a blank slate. We donÃ¢â‚¬â„¢t know what sheÃ¢â‚¬â„¢s going to do on the Court. We have no clue.

And whatÃ¢â‚¬â„¢s interesting is, since her nomination was announced, if you look at venues that are very sympathetic to the President, the New York Times editorial page yesterday said that he might think that sheÃ¢â‚¬â„¢s a good person, but the public has no way of knowing that, because sheÃ¢â‚¬â„¢s spent twenty years hiding her philosophy. The columnist David Brooks said that sheÃ¢â‚¬â„¢s the kind of person who placed career advancement above any commitment to any opinions, and you can scour her speeches to find opinions and come up empty. Tom Goldstein, whoÃ¢â‚¬â„¢s a huge booster of hers, said that sheÃ¢â‚¬â„¢s the nominee about whom the least is known since at least David Souter, and we know the huge surprise that he produced. And even her friend Jeffrey Toobin in The New Yorker, who knows her for twenty years, said heÃ¢â‚¬â„¢s happy for her personally, but he canÃ¢â‚¬â„¢t comment on her nomination, because in all that time heÃ¢â‚¬â„¢s never heard her express any opinion about any political or legal issue of consequence.

And what little we do know is somewhat troubling in some issues. On other issues, itÃ¢â‚¬â„¢s actually encouraging. But I think the nomination process has to reveal a lot more about what she thinks and believes before anyone can make a rational assessment.

<snip>

http://www.democracynow.org/2010/5/12/glenn_greenwald_v_lawrence_lessig_a

Posted 2 years ago #
Rick Carraway

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I'm glad you included Lawrence Lessig's thoughts along with Glenn Greenwald's beating of that dying horse.

I'll give Lessig's view more weight than Greenwald's on an issue such as this any day of the week.

Posted 2 years ago #