Senate Confirmation Hearing For Elena Kagan - Supreme Court

The New York Times
July 1, 2010
Kagan Reminds Senators: Legislation Is Your Job
By ADAM LIPTAK

WASHINGTON — Supreme Court confirmation hearings are usually designed to probe a nominee’s conception of the role of the justices. But this week’s questioning of Elena Kagan turned into a tutorial on Congressional responsibility.

Over and over, Ms. Kagan reminded the senators questioning her of their own duty to pass cogent, sensible — and constitutional — laws. The Supreme Court, she said, was not created to strike down foolish measures.

On Tuesday, for instance, Senator Tom Coburn, Republican of Oklahoma, asked what should happen if Congress enacted a law requiring Americans “to eat three vegetables and three fruits every day.”

“It sounds like a dumb law,” Ms. Kagan said. But she would not commit to striking it down. “I think that courts would be wrong to strike down laws that they think are senseless, just because they’re senseless,” she said.

Ms. Kagan repeatedly said she would show “great deference to Congress.” Perhaps surprisingly, that was not what many senators seemed to want to hear. They appeared to want the Supreme Court to save them from themselves.

Richard H. Pildes, a law professor at New York University, said Ms. Kagan’s attitude toward Congress amounted to tough love. “Elena is a hard-minded person,” he said. “She’s lucid and clear and demanding of herself and demanding of others.”

“The deference to Congress that she’s talking about,” Professor Pildes added, “brings with it a real sense of the responsibilities of Congress as well.”

Asked on Wednesday by Senator Orrin G. Hatch, Republican of Utah, why, in her role as solicitor general, she had made an aggressive argument in defending a federal statute outlawing the sale of dogfighting videos, Ms. Kagan said poor legislative craftsmanship had left her little choice.

“I hesitate to criticize Congress’s work,” she said, “but it was a statute that was not drafted with the kind of precision that made it easy to defend from a First Amendment challenge.”

Ms. Kagan aligned herself with Justice Oliver Wendell Holmes Jr., who held his nose in the early years of the last century while voting to uphold statutes he thought were foolish.

Justice Holmes, Ms. Kagan said, “hated a lot of the legislation that was being enacted during those years, but insisted that if the people wanted it, it was their right to go hang themselves.”

In his memorable dissent in Lochner v. New York, a 1905 decision that struck down a New York work-hours law, Justice Holmes wrote that the Supreme Court should work hard to stay out of the way where economic legislation is concerned.

“A constitution is not intended to embody a particular economic theory,” he wrote. “It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”

That is essentially the answer Ms. Kagan gave, in a kind of confirmation jujitsu, to questions from senators of both parties eager to see their views made into law by the courts rather than Congress.

Senator Amy Klobuchar, Democrat of Minnesota, asked about opportunities for female lawyers. Ms. Kagan agreed that society had far to go. “But this isn’t the court’s role,” she said. “This really is Congress’s role.”

What about the disparity between sentences imposed for trafficking in crack and powder cocaine, one that tends to produce racially skewed punishment? asked Senator Richard J. Durbin, Democrat of Illinois.

“It is a policy issue, quintessentially,” Ms. Kagan responded. “There’s nothing that the Supreme Court or that any court can do about it. It’s really one that Congress has to decide.”

Like judges, members of Congress also swear to uphold the Constitution, Ms. Kagan said, and they should not look to the courts to save them from their folly.

“They ought to be the policymakers for the nation,” Ms. Kagan said of legislators and other elected officials. “The courts have an important role to play, but it’s a limited role. It’s essentially sort of policing the boundaries and making sure that Congress doesn’t overstep its role, doesn’t violate individual rights or interfere with other parts of the governmental system.”

Asked about the criteria the Supreme Court should use in deciding which cases to hear, Ms. Kagan listed three, including conflicts among the lower courts and matters of surpassing significance. But she placed special emphasis on the third one: when a lower court has struck down a federal law.

“That’s a serious thing, to invalidate an act of Congress,” Ms. Kagan said. “You know, for the most part we want to defer to the legislative branch, to the decisions of our elected branches. So that’s such a serious thing that the court is going to take that case.”

Ms. Kagan explained that much of her defense as solicitor general of the Bipartisan Campaign Reform Act of 2002, part of which was struck down in Citizens United v. Federal Election Commission in January, was based on factual findings in The Congressional Record.

Congress, she said, knows how money can warp politics, and she suggested that the Supreme Court should have paid more deference to that expertise.

Mr. Coburn’s question about mandatory fruits and vegetables was, of course, a transparent proxy for the recent health care legislation, and Ms. Kagan knew that.

She gave only a general answer about the limits of Congressional power to pass laws mandating behavior under the Constitution’s commerce clause. But she did say that the Congress had substantial power in another sense.

“The principal protector against bad laws is the political branches themselves,” she said.
http://www.nytimes.com/2010/07/02/us/politics/02assess.html?src=me

My desire to use your bile as an example of the terrible mentality of conservatives is only holstered by the sincere efforts of conservative posters like mystery man and even Finn to defend what they believe.

Your posting is more insulting to conservatives that they must deal with the baggage you create.

A
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The New York Times
June 29, 2010
The Roberts Court Comes of Age
By ADAM LIPTAK

WASHINGTON — Last June, the Supreme Court term ended with restraint and a cliffhanger, as the court left the Voting Rights Act intact and ordered re-argument in Citizens United, the big campaign finance case.

A year later, the profile of the court led by Chief Justice John G. Roberts Jr. is fundamentally changed. Judicial minimalism is gone, and the court has entered an assertive and sometimes unpredictable phase.

That will only intensify with the retirement of Justice John Paul Stevens, a 35-year veteran of the court and the leader of its liberal wing, and his likely replacement by Elena Kagan, the solicitor general, whose confirmation hearings in the Senate are under way this week.

Chief Justice Roberts, who joined the court five years ago, took control of it this year, pushing hard on issues of core concern to him, including campaign finance, gun rights and criminal procedure, even as he found common ground with his colleagues, including some liberals, on an array of other issues.

He was in the majority 92 percent of the time, more than any other justice. Last year that distinction went to Justice Anthony M. Kennedy, who is often regarded as the court’s swing vote.

“More than in any other year since he became chief justice, this has truly become the Roberts court,” said Gregory G. Garre, who served as solicitor general in the administration of George W. Bush and is now at Latham & Watkins.

The centerpiece of the last term was, of course, the 5-to-4 decision in Citizens United, allowing unlimited corporate spending in elections. The ruling generated waves of criticism, including comments from President Obama at the State of the Union address in January. It was the most controversial decision since the Rehnquist court handed the presidency to Mr. Bush a decade ago in Bush v. Gore, and it was easily the most debated of the Roberts court era so far.

The outcry did not chasten the court.

“I don’t think it made the least bit of difference to the five justices in the majority,” said Paul D. Clement, who also served as solicitor general in the second Bush administration and is now with King & Spalding.

The Citizens United decision contained not a trace of minimalism, and it showed great solicitude to the interests of corporations.

“They’re fearless,” Lisa S. Blatt, who served in the solicitor general’s office for 13 years before joining Arnold & Porter last year, said of the justices in the majority. “This is a business court. Now it’s the era of the corporation and the interests of business.”

That trend, lawyers and legal scholars said, may well threaten recent legislation overhauling financial regulations and the health care system when challenges to them reach the court.

Some of the issues that have most engaged the court in recent years were missing this term, which included only one decision concerning national security and none about abortion or about prisoners held at Guantánamo Bay, Cuba.

The court continued its push to broaden Second Amendment rights, ruling on Monday that the amendment’s protections apply to state and local gun control laws as well as to federal law.

And the justices further limited the rights of criminal defendants. Last term, the court narrowed earlier decisions barring the use of evidence obtained through police misconduct.

This term, the court was focused on the Miranda rule, which requires the police to warn suspects in custody of their rights before interrogating them. In three decisions this term, the court allowed the police to vary the language of the warning, insist that suspects speak in order to protect their right to remain silent and resume questioning after suspects have invoked their rights.

“The court continues its march to restrict exclusionary rules,” said Jeffrey L. Fisher, a law professor at Stanford who argues frequently before the court. “The court is refusing to exclude what the court thinks is reliable evidence in criminal cases. None of the conservatives are unpredictable in any of these cases. They’re leading the retreat.”

The court acted quickly — and, some critics said, rashly — in intervening in cases without full briefing and argument. In January, it halted the broadcast of the trial over same-sex marriage in San Francisco partly on a rationale it seemed to disavow five months later. This month, it sent elections in Arizona into disarray by barring the use of a 12-year-old campaign finance law.

Thomas C. Goldstein, a lawyer with Akin Gump Strauss Hauer & Feld and the founder and publisher of Scotusblog, which prepared comprehensive statistics about the court, said the court’s five more conservative members — Chief Justice Roberts and Justices Kennedy, Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — were simultaneously aggressive and selective.

“I’m struck by the ways in which the conservatives seem to be willing to take significant steps on core questions,” Mr. Goldstein said, noting campaign finance and Miranda rights as examples. “In other cases, the five more conservative members of the court don’t seem to be prepared to press every advantage.”

Indeed, Chief Justice Roberts provided a sixth vote in the decision banning life-without-parole sentences for juvenile offenders, though on a narrower ground than the majority. He was the only justice to join every part of Justice Ruth Bader Ginsburg’s majority opinion casting doubt on the conviction of Jeffrey K. Skilling, the former Enron executive.

And the chief justice joined the court’s four more liberal members — Justices Stevens, Ginsburg, Stephen G. Breyer and Sonia Sotomayor — in Justice Breyer’s majority opinion affirming Congressional power to authorize the civil confinement of sex offenders. Justices Kennedy and Alito filed concurrences, making the vote in the case 7 to 2.

“The term as a whole will go down principally for what we see in the evolution of John Roberts and his leadership of the institution,” Mr. Goldstein said. “He cares about the position of the court in American life. He is not pressing every ideological question but is willing to cross over.”

Chief Justice Roberts is not wedded to a single judicial methodology like the originalism and textualism that are the touchstones for Justices Scalia and Thomas.

Justices Scalia and Thomas, who voted together 92 percent of the time — the highest of any pair of justices — often take positions based on jurisprudential principles without regard to the outcome in a particular case. In criminal cases, Mr. Clement said, “It’s striking how often if the court gets to a pro-defendant result the majority includes Justice Scalia.”

Chief Justice Roberts and Justice Alito, by contrast, can appear more pragmatic.

Nor does Chief Justice Roberts seem as interested in exploring the limits of federal power as Chief Justice William H. Rehnquist, who died in 2005, and Justice Sandra Day O’Connor, who retired in 2006, had been.

“Federalism has less salience with this court than it did with the Rehnquist court,” Sri Srinivasan, who served in the solicitor general’s office and is now with O’Melveny & Myers, said at a Chamber of Commerce briefing last week.

There were more surprises and unusual alliances in this term than in most recent ones. Justice Stevens, for instance, joined the court’s five more conservative members in voting to uphold provisions of a law making it a crime to provide even benign and intangible aid to foreign terrorist organizations.

Justice Sotomayor’s replacement of Justice David H. Souter last year turned out to do almost nothing to alter the court’s ideological balance. She voted with Justices Ginsburg and Breyer 90 percent of the time. Some liberals had feared that her experience as a prosecutor would make her skeptical of some claims from criminal defendants, but she voted in a reliably liberal direction in those and other cases. Her first major dissent was in a case narrowing Miranda rights.

Similarly, the replacement of Justice Stevens by a Justice Kagan, a 50-year-old who has never served as a judge, would in all likelihood do little to affect the voting lineups on the court. But the departure of Justice Stevens nonetheless represents a turning point.

“The intellectual, emotional, political, tactical leader of the left is leaving,” Mr. Goldstein said.

The court is also losing a bit of a maverick who was often skeptical of government power. With a Justice Kagan, Professor Fisher said, “we could be moving more to a court that is willing to defer to the executive.”

Seniority has privileges at the court. The senior justice speaks second at the court’s private conferences, after the chief justice. If the chief justice is not in the majority, the next-most-senior justice assigns the majority opinion.

“Stevens’s seniority and experience on the court really carries a lot of heft,” said Professor Fisher, who served as a law clerk to Justice Stevens. “Even if the exact same person could be reincarnated tomorrow as a junior justice, it would still be a huge loss.”
http://www.nytimes.com/2010/06/30/us/30scotus.html?src=me

In a different vein, why is that conservatives only approve fellow conservatives? Why do they want to be surrounded by anti-abortion, pro-gun yaboos?

Brandon9000 wrote:

It's pretty clear from her bio that once the hearings are over, she will do her best to ignore the 2nd amendment. I, personally, don't think people who are anti-Constitution have any place serving as judges. Although, in general, I would vote to confirm a presidential appointment who had politics I disagree with, being willing to oppose the Constitution is pretty much three strikes for me.

So when Kagan said in her confirmation hearing that Heller represented "settled law" and that there was an individual right to possess guns, that was a red flag for you?

Then their voters are dumb and received the government they deserved and not the government we need.

The SC is not supposed to be selected on the basis of a predisposed agenda.