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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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Old 04-10-2010, 1:17 AM
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Default Our next SCOTUS justice? Elena Kagan....

Anyone know anything about this judge and where she stands on 2a?

Mods, if wrong forum, please move...thanks!




Elena Kagan Emerging As Supreme Court Front-Runner
First Posted: 04- 9-10 03:48 PM | Updated: 04- 9-10 11:09 PM


Elena Kagan, President Obama's solicitor general, is rapidly emerging as a frontrunner to replace retiring Chief Associate Justice John Paul Stevens. Kagan is widely praised as an accomplished and intelligent attorney, but is far more conservative than Stevens and could shift the political dynamic of the high court.

Conservatives are responding favorably to the potential of a Justice Elena Kagan while liberals worry that, by choosing her, the administration would miss the opportunity to elevate a genuine progressive.

John Manning, a conservative professor at Harvard Law School, where Kagan served as dean, told HuffPost that he would firmly support a Kagan nomination. Professor Charles Fried, a Reagan administration solicitor general, also said that he'd support a Kagan pick.

"She is a supremely intelligent person, really one of the most intelligent people I have encountered, and I have met a lot of them, as one does in this business. She is very adroit politically," said Fried. "She has quite a strong personality and a winning personality. I think she's an effective, powerful person and a very, very intelligent person, and a very hardworking and serious person."

Fried served on the Supreme Judicial Court of Massachusetts from 1995-1999 and is now at Harvard Law School. He said that Republicans would be well-advised to get behind her, but may decide to oppose just for the sake of opposition.

"Let's put it this way: she should be [backed by Republicans]. But it depends on the politics," he said. "Republicans may just decide that: 'We're going to say no to what Obama comes up with the first time and we'll come up with a reason why after we've decided that we're going to say no.' I can't predict that that's what they'll do or not. But she should be, she should be."

Fried has known Kagan for years and said he may even have had her as a student. He first met her when she was a visiting professor at Harvard. He was on the board that approved her for tenure and also on the selection committee that tapped her to be dean.

Stevens is known as a sharp political tactician and a persuasive jurist, the leader of the court's "liberal wing." Fried doesn't expect Kagan to be an ideological warrior, but, he points out, neither was Stevens when he came to the court.

"I don't think she's a heavily ideological person," says Fried. "But, you know, when John Paul Stevens was put on the court neither was he. And, in fact, though he never admits it, because he never admits anything, Stevens switched his position on a number of very important things as time went on and he became kind of the replacement for Bill Brennan. So, you know, you can't tell. But she is not an ideological person."

That kind of post-ideological posture certainly appeals to Obama, who presents himself as someone who wants to "move beyond" disputes between competing interests. Obama has recently moved beyond such disputes by making major concessions to his opponents, as he recently did with offshore drilling and nuclear energy.

Kagan, who knew Obama as a Harvard student and also went to Chicago after graduating, had a similar approach at Harvard, hiring a number of conservative professors.

"The faculty had been divided politically on left-right grounds and had difficulty making [faculty] appointments," said Harvard Professor Mark Tushnet. "But she was able to break the logjam by explaining to people that the law school was stagnating and that it could move forward only if it overcame these issues."

Fried was on that board. "I was on her appointments committee when we were choosing large numbers of people to bulk up the faculty. And she was fabulous in that position. And not ideological. Not ideological," he said.

The praise from conservatives may sound damning to those who worry that the court is too close to corporate interests and too willing to accommodate the radical expansion of executive power. Kagan has been criticized by civil libertarians for her expansive stance on detainee policy.

Glenn Greenwald wrote Friday that "replacing Stevens with Kagan... would shift the Court substantially to the Right on a litany of key issues (at least as much as the shift accomplished by George Bush's selection of the right-wing ideologue Sam Alito to replace the more moderate Sandra Day O'Connor)."

The 5-4 majority that has attempted to keep the executive branch in check could be in jeopardy. "Over the past decade, the Court has issued numerous 5-4 decisions which placed at least some minimal constraints on executive power. Stevens was not merely in the majority in those cases, but was the intellectual leader justifying those limits," Greenwald wrote.

Her writing on detainee policy and executive authority is perhaps her most controversial work.

"Kagan is unique in that, like Justice John Roberts, she's universally respected but hasn't written on divisive topics that could make confirmation difficult," says University of Pennsylvania Law Professor Theodore Ruger.

Kagan's adoration from conservatives could give her what one Supreme Court watcher described as "the easiest and more logical path forward." Her current position as solicitor general rebuts the critique that, unlike the other sitting justices on the court, she has never held a bench seat. And at 49 -- though, by the end of the month, 50 -- her age is tempting for a president looking to leave a stamp on the court. The fact that she was confirmed by the Senate for her current post just one year ago, by a 61 to 31 vote, adds to the thinking that Republicans will have a difficult task mounting a serious campaign against her now.

There has been some superficial concern over Kagan's religion -- not because she's Jewish but because without Stevens there will be no Protestants on the court. And chatter long ago surfaced about her sexual orientation, which some conservative figures have already floated as a potential issue.

But these are distractions not speed bumps, strategists predict, if Obama chooses to go with Kagan. When her name was floated as a nominee following the retirement of Justice David Souter, Republicans in the Senate couldn't deny how impressed they were with her potential.

"You have to admit Elena Kagan is a brilliant woman," Sen. Orrin Hatch (R-Utah.) said during an interview on conservative North Dakota radio last May. "She is a brilliant lawyer. If he picks her, it is a real dilemma for people. And she will undoubtedly say that she will abide by the rule of law."

For Obama, perhaps the most alluring element of a Kagan selection is that the work for the president would be minimal. The White House did an extensive vetting of her record during the last court opening. The president even met privately with her to discuss the opening. Since then, she's served in his administration. Were she to be nominated, the surprises in her confirmation process should be minimal.

Shriram Harid contributed reporting

http://www.huffingtonpost.com/2010/0..._n_532319.html
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Old 04-10-2010, 3:50 AM
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From another blog:

"A member of the Senate Judiciary Committee asked her about the recent Supreme Court ruling in Heller vs. D.C., where the court ruled 5-4 that the Second Amendment guaranteed individuals the right to bear arms. Kagan said she would endeavor to show full respect to rulings of the court."

"If I am confirmed, I will commit to show Heller and the principles articulated in it the full measure of respect that is due to all constitution decisions of the court," she said.

Probably doesn't say much since all SCOTUS nominees say the same thing. Since she has little bench experience,there's not a whole lot to show where she stands on issues.
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Old 04-10-2010, 6:26 AM
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From her bio page at judgepedia.org:

Quote:
Second Amendment

During her Solicitor General nomination proceedings, Ms. Kagan provided answers to Senator Chuck Grassley regarding her view of District of Columbia v. Heller, 128 S.Ct. 2783 (2008):

"The Supreme Court held in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), that the Second Amendment guarantees an individual right to keep and bear arms. The Court granted this right the same status as other individual rights guaranteed by the Constitution, such as those protected in the First Amendment . . . . I understand the Solicitor General’s obligations to include deep respect for Supreme Court precedents like Heller and for the principle of stare decisis generally. There is no question, after Heller, that the Second Amendment guarantees Americans “the individual right to possess and carry weapons in case of confrontation."
She acknowledges the fundamental nature of the right (same status as other individual rights) and she included the word "carry" along with possess. That doesn't sound too bad given that it is coming from a potential Obama nominee.
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Old 04-10-2010, 10:03 AM
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Quote:
And chatter long ago surfaced about her sexual orientation, which some conservative figures have already floated as a potential issue.
Good chance, having been a law school professor and Dean of Harvard, that she would have voted in favor of Alan Gura's PorI arguments in McDonald. She is a GLBT rights advocate and this interpretation probably would have appealed to her.
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Old 04-10-2010, 10:24 AM
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Doesn't look like THE worst possible choice but lets wait until someone is actually nominated.
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Old 04-10-2010, 10:44 AM
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Some factoids about Ms. Kagan....

*** No judicial experience.
*** Clerked for Abner Mikva at the DC Circuit (huge gun grabber), and for Thurgood Marshall at SCOTUS.
*** Nominated to the DC Circuit Court of Appeals by Clinton in 1999, nomination died in the Senate.
*** Almost zero experience litigating prior to appointment as Solicitor General. Her legal career was spent almost entirely in the rarefied (and theoretical) air of academia.
*** The first case she argued before the SCOTUS as SG was Citizens United. Knowing how that worked out, it might be worthwhile to go back and read her briefing and argument.

Another opinion on a potential Kagan nomination
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Old 04-10-2010, 10:54 AM
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Looks like Obama and his ilk have done a better job on selecting someone who is not going to be instantly toxic like Sotomayar. We'll see what folks dig up from her background.
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Old 04-10-2010, 10:55 AM
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Quote:
Originally Posted by BigDogatPlay View Post
Some factoids about Ms. Kagan....

*** No judicial experience.
Huh? You mean she has no experience as a judge? She wouldn't be the first Justice. History has given us both good and bad Justices who didn't sit on a bench before.
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Old 04-10-2010, 10:59 AM
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History has given us both good and bad Justices who didn't sit on a bench before.
Quite true... Earl Warren comes to mind.
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Old 04-10-2010, 11:14 AM
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A nominee having no experience guaranteeing our rights under the Constitution is a far better choice than one who has loads of experience taking away our rights under the Constitution.

Erik.
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Old 04-10-2010, 11:24 AM
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A lot on the left don't consider her left enough - which is a general good sign.

-Gene
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Old 04-10-2010, 11:26 AM
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Quote:
Originally Posted by hoffmang View Post
A lot on the left don't consider her left enough - which is a general good sign.

-Gene
Agree
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Old 04-10-2010, 11:36 AM
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I ask this out of ignorance, and laziness to just google the answer. I know history has shown us plenty of what was thought to be "conservative" Supreme court justices who ended up being more activist or "liberal" than anticipated. Have there been any of the reverse? A liberal justice who though the years became conservative?
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Old 04-10-2010, 11:37 AM
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Quote:
Originally Posted by BigDogatPlay View Post
Quite true... Earl Warren comes to mind.
Hey! Earl Warren was a law man for 22 years -- 5 years as a deputy D.A., 13 years as the Alameda County D.A., and then 4 years as California's State Attorney. Supposedly he was the only SC Justice to ever question murder suspects. None of his convictions were ever overturned. He was also instrumental in persuading California colleges to offer criminology courses and other police training programs. (Source)
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Old 04-10-2010, 11:59 AM
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A lot of the hate for Earl Warren has a lot to do with the dislike for Brown v. Board of Education and application of constitutional rights to the states using the due process clause. Keep that in mind.
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Old 04-10-2010, 3:33 PM
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Quote:
Originally Posted by bruss01 View Post
Good chance, having been a law school professor and Dean of Harvard, that she would have voted in favor of Alan Gura's PorI arguments in McDonald. She is a GLBT rights advocate and this interpretation probably would have appealed to her.
Interesting observation. I was fortunate enough to see Mr. Gura present his arguments to a 'moot' court at Harvard Law the week before the actual SC arguments. The four members of the Harvard Law faculty seem very interested in, and I think sympathetic, to the PoI argument. But also, they were very skeptical.
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Old 04-10-2010, 4:01 PM
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If she IS pro-2A, Bloomberg will be on Obama's phone putting the whoa-nelly on her.
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Old 04-10-2010, 4:06 PM
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Quote:
Originally Posted by garandguy10 View Post
If Obama is floating her name now, then for sure , she will not be the nominee.
sir, you do indeed understand the DemonRats
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Old 04-10-2010, 5:35 PM
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Quote:
Originally Posted by Clinton View Post
If she IS pro-2A, Bloomberg will be on Obama's phone putting the whoa-nelly on her.
If all goes well, we're going to soon be giving Bloomb**** enough problems in his own backyard where he won't have time to tell the O-hole what to do.
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Old 04-10-2010, 6:48 PM
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I don't think Barrack Obama pays much attention to what Michael Bloomberg fulminates about. Obama and Bloomberg have at time conflicting agendas. Obama from now to November and maybe beyond is not interested in a strategy of continuing to try and over-run retreating conservatives. Obama knows he won boldly but narrowly and he now wishes to mend fences and ties. Bloomberg is the officer on the general's staff who clamors for attacking the retreating enemy. Obama knows the enemy lost a battle but not even a campaign let alone the war so he is cautiously trying to reach out to his adversary. I think he suspects that "piling on" will actually anneal and strengthen his enemy not vanquish them. His support of coastal drilling and his floating of Kagan as a rumored SCOTUS nominee demonstrate that. How far it goes and for how long we can argue--until Nov or beyond (depending on the Nov results for Obama's party). But it's here for now. We should strike while the iron is hot. Carpe diem.
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Old 04-10-2010, 10:50 PM
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You can listen to Kagan's oral argument before SCOTUS in Citizen's United here: http://www.oyez.org/cases/2000-2009/2008/2008_08_205

She was representing the Gov't as SG, so I didn't place much on her position.
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Old 04-10-2010, 11:51 PM
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This will undoubtedly be interesting, given the unique circumstances Obama currently faces. He KNOWS the Democrats, including himself, are on the ropes. Smart strategy is to play safe here and make a centrist nomination. However, the opportunity to stack the court with another hard-liner progressive liberal might simply be too much temptation for an extreme progressive tyrant like Obama to pass, as I'm sure many on Team Tyrant are preaching in his ear. This may end up with a shoulder-shrugging "we're screwed anyway so might as well go all-in" approach from Obama. We shall see.
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Old 04-11-2010, 2:27 AM
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This sucks. I was holding out hope that Harriet Miers would get another shot.
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Old 04-11-2010, 3:20 AM
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Quote:
Originally Posted by BigDogatPlay View Post
Some factoids about Ms. Kagan....

*** No judicial experience.
*** Clerked for Abner Mikva at the DC Circuit (huge gun grabber), and for Thurgood Marshall at SCOTUS.
*** Nominated to the DC Circuit Court of Appeals by Clinton in 1999, nomination died in the Senate.
*** Almost zero experience litigating prior to appointment as Solicitor General. Her legal career was spent almost entirely in the rarefied (and theoretical) air of academia.
*** The first case she argued before the SCOTUS as SG was Citizens United. Knowing how that worked out, it might be worthwhile to go back and read her briefing and argument.

Another opinion on a potential Kagan nomination
I thought I read she was on the MA supreme court in the 90's?
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Old 04-11-2010, 4:06 AM
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Abner Mikva ......
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Old 04-11-2010, 4:22 AM
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Not real sure about this, but a prospective jurist for the Supreme Court will seldom lay out
personal feelings about something as mercurial the 2nd Amendment or other Amendments,
except to say they would do their best to interrupt the Constitution and laws of
the land as they see fit after hearing both sides and go from there.

Each case is unique. Just ask Mr. Bork. I just hope they put whomever through the ringer.

Last edited by bg; 04-11-2010 at 4:27 AM..
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Old 04-11-2010, 4:31 AM
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Quote:
Originally Posted by ErikTheRed View Post
This will undoubtedly be interesting, given the unique circumstances Obama currently faces. He KNOWS the Democrats, including himself, are on the ropes.
Have you seen this man speak? He is as arrogant as they come. I doubt very highly that he thinks he is in any kind of trouble.
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Old 04-11-2010, 3:33 PM
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The info her bio page is worth a click , IMO:
Quote:
Originally Posted by GrizzlyGuy View Post
From her bio page at judgepedia.org:



She acknowledges the fundamental nature of the right (same status as other individual rights) and she included the word "carry" along with possess. That doesn't sound too bad given that it is coming from a potential Obama nominee.
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Old 04-11-2010, 4:57 PM
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Have you seen this man speak? He is as arrogant as they come. I doubt very highly that he thinks he is in any kind of trouble.
Yes, he is a narcissist of the very highest order. But he is not above the scruntiny of the American people, and the American people are kicking the scruntiny into overdrive. His narcissism doesn't keep him out of the reach of the voters. In fact, as we're starting to see, it makes him more vulnerable to it. A man as self-absorbed and concerned about image as Obama is, he is well aware that his image is tarnishing faster than a copper sheet in an oxygen tent. He may want to try and slow the bleeding before November and extend an olive branch. Obama is not a president of the people nearly so much as he's fixated on himself. As with all clinical narcissists, he seeks admiration, respect, and approval to feed his self-importance. This may actually work to America's advantage as Obama finds himself more and more disrespected and unliked by Americans. Or, it could make him even more dangerous.
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Old 04-12-2010, 3:11 PM
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Quote:
Originally Posted by GrizzlyGuy View Post
From her bio page at judgepedia.org:



She acknowledges the fundamental nature of the right (same status as other individual rights) and she included the word "carry" along with possess. That doesn't sound too bad given that it is coming from a potential Obama nominee.
+1.
Some of the lefties are irate because she's not a true PC believer . She seems surprisingly moderate in many ways , not exactly a fire-breathing 1990's style gun-grabbing Clintonista at all.
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Old 04-12-2010, 5:46 PM
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Default True, but irrelevant...

Quote:
Yes, he is a narcissist of the very highest order.
as nobody has ever been elected to the job he now holds without an ego the size of Australia and an ambition as powerful as a fully-launching Ohio-class submarine.

The fundamental flaw of republican government... it awards power to power-seekers. Of course, we've yet to come up with any system that avoids that trap, so at least we get to pick which power-mad egomaniacs will rule us.

And, yes... that is an improvement.

--Shannon
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Old 04-12-2010, 10:07 PM
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The supposed short list for Souter's replacement

Varying degrees of anti-gun:
Diane Wood
Merrick Garland
Janet Napolitano

Neutral or somewhat pro-gun:
Elena Kagan
Leah Ward Sears
Sidney Thomas

Correct me if I'm wrong about any of these or if I left any of the major contenders out of this list...
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