View Full Version : Which 'recently appointed' justice does Kagan have a beef with?

05-15-2010, 9:06 AM

Does Supreme Court nominee Elena Kagan have an axe to grind with one of the high court's nine sitting justices? In a phone call with Democratic Sen. Arlen Specter today, Kagan repeated her criticism of the nomination process as an empty charade, according to Specter and then singled out one justice for not having supplied "appropriate" replies to senators' queries during the confirmation process.

"She stood by the word 'charade.' And she identified a specific justice who she thought was not appropriate in responses," Specter told NBC's Ken Strickland. "I'm not going to tell you who it was, but I'm going to take a look at that record in preparation for the questioning."

According to The Hill, Specter said the justice Kagan was referring to was "recently appointed."

So who is Kagan talking about, and why is she criticizing a potential colleague? Kagan's views on the emptiness of judicial nominations are long-standing: She first called into question the nomination process in a 1995 University of Chicago Law Review article, which she wrote after serving as a staffer during the Ruth Bader Ginsburg hearings. Ginsburg invoked the rule that she didn't have to answer questions on any issues that could come before the court because it could damage her objectivity. Kagan argued that no nominee had been candid in characterizing his or her actual beliefs since the combative hearings that rejected Reagan court nominee Robert Bork because of his alleged "ideological" approach to interpreting the law.

In that piece, she called out justices Ginsburg and Stephen Breyer both Clinton appointees for dodging tough questions. "I suspect that both appreciated that, for them (as for most), the safest and surest route to the prize lay in alternating platitudinous statement and judicious silence," she wrote. (Here's a link to the article.)

It's possible that the recently appointed justice she criticized to Specter could be Sonia Sotomayor, but that seems unlikely, both because it would be exceptionally impolitic for Kagan to lay into a fellow Obama nominee, and since Sotomayor wasn't especially evasive during her confirmation questioning, particularly on hot-button issues such as abortion and gun rights.

Kagan's likelier target, then, would be one of the two justices George W. Bush nominated, Samuel Alito or Chief Justice John Roberts. Both were criticized for evasive answers to questioning during their hearings.

A Washington Post editorial said Alito offered only "platitudes" when asked about executive power and that the hearings were "less illuminating than one might have hoped."

Peter Shane, a professor at Ohio State University's law school, wrote that Alito showed "resolute determination to say relatively nothing that would shed light on his constitutional philosophy. My personal favorite moment in this was his insistence that, after 15 years on the bench, he had not given sufficient thought to the question to opine whether Congress could eliminate all federal court jurisdiction over First Amendment cases."

Few critics attacked Roberts for evading the substantive issues raised by his senate questioners. But he consistently portrayed himself as a humble, modest judge with a reverence for judicial precedent. Kagan, who as solicitor general argued against the controversial Citizens United decision, which allowed corporations to influence campaigns with unlimited funds, may think Roberts misrepresented his philosophy, since Roberts' critics now contend that in Citizens United he endorsed an activist approach that overthrew long-standing legal precedent.

One could bolster the admittedly circumstantial case for Roberts as Kagan's target by noting the other exchange Specter mentioned today. "We talked about the Citizens United case, and she said she thought the court was not sufficiently deferential to Congress," he said.

One senator looking for Kagan to break recent confirmation precedent, ironically enough, will be Specter himself. He voted against confirming her as solicitor general last year because he says she wouldn't answer some of his questions.

05-15-2010, 9:08 AM
Interesting.....what does it say between the lines?

05-15-2010, 9:14 AM
Interesting.....what does it say between the lines?

it says that the author has no idea what he is talking about,

if Kegan was refering to Sotomayor... I would agree with her, that was a Circus

05-15-2010, 9:20 AM
She is correct at the heart of her concern, IMHO. I am not critical of how the appointment of SCOTUS judges was set up, I am critical of what and how it has evolved.

Activist Judges should not sit in the highest court, in fact I don't think activist judges should be allowed to rule from the bench, at all.

Their job again, IMHO is to study and apply the law as given by our forefathers, in the spirit in which it was given first, and secondly the words penned to paper.

05-15-2010, 9:24 AM
It is pretty unclear if she has a singular issue with the way justices answer questions or if she also has an issue with the manner in which the Senate exercises their responsibility to advise and consent. It would seem she has an issue with both but the article is so distorted it solely focuses on the "personality" issues of working with the justice whose answers she supposedly took issue with. It would seem this article is a decent example of the other half of Kagan's concerns.

It is interesting that in Kagan President Obama has almost found a justice who is nearly the antithesis of his first appointment, Sotomayor. Kagan "seems" relatively devoid of politically inflammatory statements, is clearly intellectually up to the position and hasn't stepped out talking about any kind of silly "qualifications" that are based on any of her attributes other than her scholarship.

Really reminds me a little bit of Souter but from a scholastic rather than trial background.

I've gotta say, she is saying the right things. I can certainly envision a lot worse.

05-15-2010, 9:38 AM
enviromentalists accuse Kagan of a "personal eco-foul" whatever that is :nuts:



05-15-2010, 10:03 AM
enviromentalists accuse Kagan of a "personal eco-foul" whatever that is :nuts:



They're the same "environmentalists" who buy 21st century indulgences and praise Al Gore who has a carbon footprint bigger than Bill Clinton's little black book.