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SCOTUS Fight: Boxing Elena
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Scroll for updates…Obama announcement peddles Elena the Populist/Lover of Everyday People narrative…

Monday opens with a SCOTUS bang. NBC News reports tonight that Harvard Law School dean turned solicitor general Elena Kagan will be the White House SCOTUS nominee to replace retiring Justice John Paul Stevens. It was widely rumored she would be the pick leading into the weekend. The announcement is expected at 11 a.m. Eastern:

President Barack Obama will nominate U.S. Solicitor General Elena Kagan to serve as an associate justice on the U.S. Supreme Court, NBC News’ Pete Williams reported late Sunday night.

Kagan, 50, served as the Dean of Harvard Law School from 2003 to 2009. Obama nominated her to serve in her current post as solicitor general early in 2009, and she won Senate confirmation by a vote of 61-31. She is the first woman to serve as solicitor general of the United States.

She was widely viewed as a front-runner when Obama was considering candidates for a Supreme Court opening last year, but the president ultimately chose Sonia Sotomayor for the job.

The Beltway conventional wisdom has already cast her as a “mooooderate” and a “pragmatist.” Ed Whelan at Bench Memos has the appropriate retort to that narrative.

And here’s a reminder from my blog almost exactly a year ago when Kagan was on the short list for the SCOTUS slot that ultimately went to Sonia Sotomayor:

“Dean Kagan’s nomination to the Supreme Court would be concerning given her complete lack of judicial or appellate experience. She has never been a judge or even argued a case in a court of appeals. It is difficult to see how her experience fundraising for Harvard Law School qualifies her for a seat on the Nation’s high court.

-Dean Kagan has taken positions that are disturbingly out of the mainstream. For example, driven by her view that the “don’t ask; don’t tell” policy adopted by a Democrat Congress and President Clinton is “a profound wrong–a moral injustice of the first order,” she argued that it violates the First Amendment for the United States to withhold funds from colleges that ban the military from recruiting on campus. The Supreme Court unanimously rejected this view.

-It is also unclear that a Justice Kagan would be an adequately independent check on executive excesses. She has argued in favor of greatly enhanced presidential control over the bureaucracy, which is concerning in light of President Obama’s unprecedented centralization of power in the White House.

-Dean Kagan has argued that nominees to the Supreme Court should undergo a searching inquiry into the nominee’s substantive views of the law, and should comment particular issues. If nominated, it will be interesting to see whether Dean Kagan remains faithful to this prescription in answering the Committee’s questions.”

The nutroots aren’t happy with Kagan’s clubby academic ties or her work for Goldman Sachs. HuffPo:

While the work [Elena] Kagan did for Goldman remains largely brief or unknown, the Huffington Post was passed along two reports that the advisory council completed in 2005 and 2008. … The findings touch on the broad risks that the world economy faced and contain the type of insight expected from a largely formal panel. In terms of content, they came up a bit short, failing to mention credit bubbles in major economies (such as the U.S. housing market) as a looming problem.

Considering how many actual economists missed the housing bubble in real time, it would be difficult to hold Kagan to a higher standard — though Goldman was already betting against the housing market by the time the latter report was published.

The issue for progressives, however, isn’t her lack of long-term market salience. But rather the ties — however small — to a firm that is now a black mark on Wall Street and a pariah in Congress. … “I just don’t understand why the Administration would want to makes themselves and their nominee vulnerable to the opposition at a time when American skepticism of Wall Street is at an all time high,” said a prominent progressive strategist speaking on the condition of anonymity. “This is like handing the Republicans the mantle of populism just for trying to oppose Kagan’s confirmation.” …

Yeah. It’s going to make it a little more difficult to pull off the “compelling personal story”/SCOTUS nominee in touch with the people schtick that smoothed the path for Sotomayor.

Heckuva job, Obama optics experts…


Amen to what Sen. Jeff Sessions wrote in the Washington Post on Friday:

As government continues its rapid expansion, Americans are looking for judges in the mold of Chief Justice John Roberts, not Justice John Paul Stevens. They are looking for judges who will stay true to our Founders’ vision instead of imposing their own. They are looking for judges who recognize the limits on government power; who restrain themselves to the text of the Constitution; and who will defend the rights of all citizens without bias, without prejudice and without hesitation.


File under Curious Timing: The late Friday night resignation of top White House lawyer Daniel Meltzer, who shepherded Sotomayor through her SCOTUS nomination last year, is interesting, isn’t it?

Daniel J. Meltzer, a top White House lawyer who has played a critical behind-the-scenes role in the administration legal team, is resigning next month and will return to his tenured position as a Harvard law school professor, the White House said on Friday.

Mr. Meltzer’s last day as the principal deputy counsel to President Obama will be June 1. Since the administration took office, he has worked on nearly every major legal issue the White House has handled, a sprawling portfolio that ranged from domestic policies to national security matters.

…Among other things, Mr. Meltzer played a leading role in the administration’s efforts to close the military prison at Guantanamo Bay, Cuba, and related policies affecting terrorism detainees.


…In addition, Mr. Meltzer, who teaches courses on the federal courts at Harvard, helped prepare Supreme Court Associate Justice Sonia Sotomayor for her confirmation hearings – a role he may reprise in his final weeks by working with Mr. Obama’s forthcoming Supreme Court nominee, which the president is expected to announce as soon as Monday.

Tom Goldstein at SCOTUSblog weighs in on where we go from here, process-wise:

Note the relationship between Monday’s announcement and the Senate calendar. There are seven weeks between Monday and June 28. Six to seven weeks is traditionally regarded as the minimum amount of time between a nomination announcement and hearings before the Senate Judiciary Committee. June 28 marks the last week the Senate is in session before its July 4 recess, which runs from Saturday, July 3 to Sunday, July 11. So, tomorrow’s announcement is timed to permit hearings to be conducted prior to the recess, if (and it’s a big if) the Senate Judiciary Committee agrees.

Whether they will agree will depend on a number of factors. Kagan’s relatively short paper trail – note the contrast with the nearly two decades of decisions by Sonia Sotomayor – means there is less to review, and thus less time is required prior to the start of hearings. Kagan was also recently confirmed by the same Committee as Solicitor General.

Senate Democrats will prefer to move the process forward quickly for two reasons: so that Kagan is not “left hanging” for nine weeks before she appears before the Committee; and so that the nomination can be moved forward to make room in the calendar for legislative efforts. On the other hand, Republicans, as the opposition, will prefer delay because as more time passes there is a greater chance that something will emerge that justifies defeating (or at least undercuts) the nomination.

Also important will be the speed with which the Administration produces documents – not only the nominee’s questionnaire to the Senate but also the documents it intends to produce from Kagan’s time in the Clinton Administration. A genuine fight over materials could lead to a delay.


From SCOTUSReport:

Rick Garnett, professor of law and associate dean of University of Notre Dame Law School, and former law clerk for Chief Justice Rehnquist: “Elections matter, and the election of President Obama has turned out to matter a great deal for the future decisions and direction of Supreme Court. With the nomination of Solicitor General Kagan, the President has taken a significant step toward reshaping the Court and its work for generations. No one should think that this nomination is inconsequential, or that it changes little because it involves merely replacing one liberal justice with another. A conservative might someday win back the White House, but any future Republican president will be playing defense with his or her Supreme Court selections. With his second Supreme Court pick — and, to be clear, he will almost certainly have more — the President is on the way to having had more influence over the Court than any President since Reagan, and perhaps even Roosevelt. Future elections might undo some of the President’s policies, but his more liberal views about the Constitution, the powers of the national government, and the role of unelected federal judges, are now being locked in securely.”

David McIntosh, co-founder of the Federalist Society and former congressman from Indiana: I’m deeply disappointed that President Obama has chosen to nominate an individual who has demonstrated a lack of adherence to the limits of the Constitution and a desire to utilize the court system to enact her beliefs of social engineering. Solicitor General Kagan has been nominated with no judicial experience, a mere two years of private law practice, and only a year as Solicitor General of the United States. She is one of the most inexperienced nominees to the U.S. Supreme Court in recent memory.

More from the Judicial Network here.

Heh: “I love it when the most transparent administration ever picks a nominee because they don’t have much of a paper trail.”


A look at Kagan’s days at Harvard: The Kagan cover-up.

Update: 10:23am Obama made the formal announcement, painting Kagan as a woman who will represent “everyday people” and “ordinary citizens.” Kagan repeated the narrative in her own brief remarks. Alinskyite story-telling in full force. Funny enough, the nutroots still aren’t playing.

Cue the Democrats’ Kagan confirmation theme song!


Sad, but true: Why Kagan is Likely to Sail to Confirmation. The nutroots seem to be more up for a fight than the Senate Republicans, alas.

(Republished from by permission of author or representative)
• Category: Ideology • Tags: Supreme Court