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Supreme Court Nominee Elena Kagan

President Obama nominates Elena Kagan for the Supreme Court. We look at her chances, and what it means for the court and the country.

Solicitor General Elena Kagan speaks during a conference on May 3, 2010 in Chicago. (AP)

President Obama’s second nominee for the U.S. Supreme Court is in the spotlight today. 

U.S. Solicitor General Elena Kagan – fifty years old, former Harvard Law School dean — has never been a judge. She would be the third woman on the high court. She’s a famous communicator and bridge-builder. 

She’s neither the most liberal nor most conservative on the president’s short list, and she’s young enough to wrangle with the quite conservative leadership of Chief Justice John Roberts for a very long time. 

This Hour, On Point: the President speaks, and nominates Elena Kagan to the Supreme Court.

Guests:

Howard Fineman, senior Washington correspondent and columnist at Newsweek.

Mark Tushnet, constitutional scholar and professor at Harvard Law School. His new book is “Why the Constitution Matters.”

David Stras, professor at the University of Minnesota Law School, where he also co-directs the Institute for Law and Politics.

Dahlia Lithwick, senior editor and legal correspondent for Slate.com.

Please follow our community rules when engaging in comment discussion on this site.
  • WINSTON SMITH

    Ms. Kagen is no doubt a liberal that supports judicial activism on issues like murder (I mean abortion) and perversion (I mean gay marriage). It cracks me up that liberals say that have no litmus test for their nominees. Unless they hold those and other leftist positions, there is no way that a democratic president and congress would nominate and support them.

  • John

    “Murder” and “perversion” — I can see we are already off to a moronic start.

  • cory

    Not much of a topic really. This is a liberal vote on the court, like Roberts and Alito are fairly extreme conservative votes. Even though prospective justices always refuse to discuss political ideology, this is how our Supreme Court works. The only variable is whether or not a justice changes ideology over time, such as jusstice Souter.

  • WINSTON SMITH

    Murder” and “perversion” — I can see we are already off to a moronic start.

    Posted by John, on May 10th, 2010 at 9:09 AM

    Actually, John, supporting partial birth (late term abortion) where an infant would clearly live outside of the womb except for carrying out a medical procedure where the baby’s skull is crushed is murder. And redefining the traditional definition of marriage which has existed for thousands of years to include a new arrangement where the plumbling clearly doesn’t work together is a perversion. We will just redefine these things, and voila, everything is just fine.

  • Christopher M.

    That Ms. Kagan has never been a judge is pretty sweet. Some of the best Justices in history were never judges prior to their appointment.

    Also, I really hope all the rumors of alleged homosexuality are true. The SCOTUS could really benefit from a gay perspective.

  • cory

    Winston,

    Is it much different than Roberts championing the push to solidify corporations having the same rights as persons? Ideology rules our court… both on the left and right.

  • Alex

    The Supreme Court should be issuing decisions that are binding upon the parties to the case, and no one else. That’s what its for under the Constitution. It should stop striking down legislative acts. Then the judges will be judges, and not political figures.

  • Ellen Dibble

    If Citizens United is going to be rectified, that calls for a new justice who is an even greater persuader than we’ve had before.
    Why I am hopeful is that judges, to the extent I’m aware of it, usually don’t have to do much persuading. If Kagan hasn’t been a judge, terrific; others bring that experience to SCOTUS. To my observation, if judges aren’t obeyed, there are court officers present to enforce.
    But a practicing lawyer has to persuade. A practicing trial lawyer, for sure, that is. He/she must understand the counterarguments and their presenters well enough to act, if necessary, like the lone wolf on a jury who is confronted by a bunch of deceived idiots. I’m sure it happens. So what is Kagan’s record on THAT?

  • http://wbur.org Fred from Newton MA

    Re: “Winston Smith”
    Choosing the name of the protagonist in Orwell’s “1984″ as a nom de plume is rather odd here. Smith in the book tried to defy a repressive state; Smith on this chat appears to advocate repression of individual liberty.

    Interesting how the “strict constructionists” on the court have fabricated a concept of corporate personhood which did not exist in 1789.

  • http://www.lit.org/author/fritzwilliam F. William Bracy

    Yep, like moths hovering around a street lamp, the mention of “litmus tests” and “legislation from the bench” brings out the conservative Right wingnuts every time. (Be careful … gay marriage will be responsible for making children an endangered species.)
    and (The liberals are stealing our freedom!) Well try this on and see if it fits any of the incredible shrinking heads out there.

    “Freedom isn’t free,” as they like to say, but it is for sale through a clearinghouse known as the United States Supreme Court.

    Every time the Supreme Court rules in favor of a special interest group, it undermines the freedom of the remaining masses. The two most recent examples: the overturning of the D.C. handgun ban (District of Columbia vs. Heller) and the lifting of the ban on political campaign spending by corporations (Citizens United vs. the Federal Elections Commission).

    This is known in the legal sense as “taking the narrow view” which supports special interest lobbying groups in the same way that atmospheric oxygen supports all those who breathe. And no one in recent memory has taken a narrower view than Chief Justice John Roberts.

  • Liz

    The conservatives’ complaints about liberal idealogy are pathetic. Democratic senators have approached “advise and consent” with an open mind, and have been reasonably supportive of Republican appointments. Democratic nominees, by contrast, have been subjected to highly partisan confirmation votes.
    For two generations, Republican presidents have enjoyed far more nomination opportunities. As a result, the Court is only now beginning to regain some balance.

  • Ellen Dibble

    Mr. Bracy, could you clarify: do you mean the Roberts court with the leadership of the “narrow view” of the Chiehf Justice is for “atmospheric oxygen that supports all those who breathe”?? Or “Atmospheric oxygen” limited to “special interest groups”?
    I can deduce what you mean, but I’m not sure you’ve made it real clear.

  • John

    For two generations, Republican presidents have enjoyed far more nomination opportunities. As a result, the Court is only now beginning to regain some balance. – Posted by Liz — Unfortunately she is replacing the moderate liberal Stevens not one of the conservatives. Kennedy usually votes with Roberts, Scalia, Thomas, and Alito so the court is not likely to “regain some balance.”

  • cory

    I hope the tea baggers force the Republicans to descend upon Kagan like a pack of rabid, ravenous dogs. Exposure and the light of day is precisely what is needed to discredit the American extreme right.

  • Ellen Dibble

    Even a minority-opinion justice can be significant if writing powerful dissents. Remember Stevens’ dissent in Citizens United? Am I right about that? If I don’t misremember, he was able to charge up all the arguments dormant around the entire citizenry by being so quotable.

  • http://www.lit.org/author/fritzwilliam F. William Bracy

    Ellen ~ I see that the phraseology could be taken in more than one context. Could I have intended it that way …?

  • Ellen Dibble

    No, but it’s an interesting, evocative point gone a little astray.

  • http://OnPOint Deyne

    Tom Ashbrook commented that Stevens was the last “Protestant”. What does that mean? Isn’t an Episcopal (Souter) a Protestant?
    I don’t really care, and wonder if it matters at all, but that aside, I think there are two questions here.
    1. What defines a “Protestant?”
    2. Does this really matter in this instance, and, if so, why?

  • Chris

    Alex,
    You say, “It should stop striking down legislative acts.”

    If those acts contain unconstitutional components, who else or what other body is supposed to stop the act in its tracks???

    Because the court is comprised of individuals with the human attributes we all have, even this does NOT make for a fail safe system. Just think about how VERY long it took to get the Civil Rights Act! And, WHY did we need it? Because our Founding Fathers were biased humans whose social view of the world was indeed perversely limited and self-interested.

  • John

    Souter retired.

  • Joe

    Tom:

    What about recusals? I heard over recent weeks that Solicitor Kagan’s role in so many cases that may ultimately make it to the Court in coming terms would require her to have a high rate of recusal? Anything to that?

    Joe

  • Alex

    Chris wrote “If those acts contain unconstitutional components, who else or what other body is supposed to stop the act in its tracks???”

    The Constitution does not empower the Supreme Court to review acts of Congress. I think any strict construction should start with this simple legal truth. It is the highest appellate court in the land, no more no less. The Constitution may be amended to provide for a separate Constitutional Court, as it is done in other countires, or empower the Supreme Court to do so.

  • Janet

    I feel sorry for the thousands of hardworking lawyers and judges out there that will never get a look at getting on the bench.

  • Pam Haughwout Borys

    Ww do need to look broadly for intelligent people of varying backgrounds who can discern what is critical to reaching justice.

    I discovered a very distant relative who served on the Supreme Court—Robert Houghwout (How-it) Jackson.

    His appointment to the Supreme Court was the last of justice who did not graduate from law school. And yet, he did great things taking leave from the SupremeCourt to serve as head counsel for the United States for the Nuremberg Trials in 1945-46.

  • John

    I feel sorry for the thousands of hardworking lawyers and judges out there that will never get a look at getting on the bench. – Posted by Janet — Me too. Congress should give Obama the power to appoint two additional justices.

  • Alex

    The Constitution does not mandate that there be nine justices. Congress could absolutely legaly increase the court’s size.

  • Ellen Dibble

    Janet, there is room in the judicial system for great job satisfaction in many aspects. I can’t think of any judge or lawyer in my purview who would like to be a supreme court judge. I know of appellate judges who skip being courtroom judges because they like to wrestle with the legal issues but could not see themselves sitting in front of a defendant and passing sentence. They are “all about” the proper implementation of justice/laws; not about courtroom events. It seems to me there are judges in state courts, those who deal with drunk drivers and minor assaults, who thrive on exactly that forum — because they are good at it. They like keeping tough issues moving smoothly through to resolution, keeping lawyers within bounds, keeping fairness on track in a moment-to-moment way, not necessarily being smarter or quicker than the lawyers, but knowing how to use their minds and hearts and experience to the max just like that. They are born judges. Then there are the born lawyers. There are people defending the indigent defendant, for income that forces them to live out in the stix, and they are devoted to making sure the “system” serves the disadvantaged as well as it might serve the wealthy. They would no more wish to serve on the supreme court than the mother of a few small children would wish to be Mother Superior in an abbey in France.

  • Alex

    One study suggests that the conservative Jusitices are more inclined to vote to strike down the law of Congress (i.e. activist judges). Look at the 2005 numbers below. Thomas, a self professed strict constructionist, voted to strike down a law 65.63% of the time. Where does he find the power to do so in the text?

    Thomas 65.63 %
    Kennedy 64.06 %
    Scalia 56.25 %
    Rehnquist 46.88 %
    O’Connor 46.77 %
    Souter 42.19 %
    Stevens 39.34 %
    Ginsburg 39.06 %
    Breyer 28.13 %

  • Liz

    John you’re absolutely right. It will take a while to achieve the balance I think we need. Both Clinton appointees are over 70, and until Sotomayor joined, the youngest members were solid conservatives.
    I view the recent conservative “stacking” of the Court as a response to the very liberal work of the Warren and Burger courts. The pendulum always seems to swing back, and the wave of liberal retirements during the 12 Reagan/Bush years gave them the perfect opportunity. In a sense, Clinton’s response wasn’t strong enough, but a president who refrains from the impulse to stack is doing the responsible thing.
    Best of luck to Ms. Kagan!

  • Todd

    Interesting tidbits from NJ.com:

    “This apparent Obama nominee is unusual. She’s never been a prosecutor or attorney general, or defense attorney or Legal Aid litigator or sitting judge. In fact, she’s never been a lawyer in a trial….never. Until her appointment as Solicitor General last year, she hadn’t argued before a court; so her very first, maiden argument, was before the United States Supreme Court last year!

    Kagan’s connections to Summers are interesting. She was a professor there when Summers arrived from his work at Treasury, under Bill Clinton, to deregulate banks and derivatives to get the gambling moving…guaranteed by the taxpayer. As President Summers of Harvard from 2001 to 2006, Kagan thrived. She was made a full professor, then Summers tapped her to be the Dean of Harvard Law. Her pet peeve there was to keep the American military and ROTC off campus because she disputes the “don’t ask, don’t tell” provisions put in place by Clinton. In 2008, Kagan got money as an advisor to Goldman Sachs global investment house. Meanwhile, she made Cass Sunstein, who is now an advisor to Obama too, a full professor at Harvard. He has suggested the concept of marriage be discontinued. He also has argued that dogs and cats should have “standing” to sue in court.

    Meanwhile, Summers had worked in 2006-2008 for a derivatives firm, D.E. Shaw and was paid some five million dollars. Summers actually testified that the lack of supervisory laws on Wall Street, that he permitted, was outrageous…Then, he went back to “public service” as the chief financial advisor to Obama. He dodged Senate review with this appointive position. With Summers in the White House, Kagan became Solicitor General to give her some experience in actual law. Meanwhile, Summers remains a professor at Harvard, too. All in all, our “ruling elites” continue to present bizarre manipulations as they exchange positions and promote one another. It’s a cozy, exclusive club that’s also shadowy. Worse, these jokers have the fate of our world in their shaky hands.”

  • Alex

    Todd -between “these jokers” and the Republican jokers I will take these any day of the week. That’s how the system works. At least Kagan is an accomplished legal scolar, unlike some other nominee we know from a couple of years ago.

  • Todd

    “Todd -between “these jokers” and the Republican jokers I will take these any day of the week. That’s how the system works. At least Kagan is an accomplished legal scolar, unlike some other nominee we know from a couple of years ago.”
    Posted by Alex

    I hear what you’re saying, but between two evils there isn’t really a good choice. No matter, the SCOTUS has failed in its duty—for a looong time now—to provide the proper checks & balances on the Executive and Legislative branches. I can’t imagine its dereliction of duty changing, regardless of who’s seated on the bench.

  • Impeach Obama

    Just another far left, out of touch, clueless, and radical Supreme Court nominee, what else were you expecting from Obama?

  • Rob

    Alex noted ” The Supreme Court should be issuing decisions that are binding upon the parties to the case, and no one else. That’s what its for under the Constitution. It should stop striking down legislative acts. Then the judges will be judges, and not political figures.”

    I completely agree, but would add that I would also like to see liberal justices abstain from trying to enact liberal legislative and social policy goals through the judiciary, rather than legislatively.

    Alex, based on your posts, I presume that you do not agree with the legal reasoning in Marbury vs. Madison, which set the premise for judicial review and the judiciary striking down laws that it believes are in conflict with the US. Constitution? While I personally believe in a restrained judiciary, the bottom line is that anyone who accepts the post Marbury role of striking down acts of Congress is to some extent advocating a form of judicial activism. While I admire Scalia’s legal mind (as well as Breyer’s), the model justice for advocating judicial restraint was probably Felix Frankfurter.

  • Alex

    Rob – as I recall from law school, Marbury vs. Madison was a case where the court lacked jurisdiction over the matter. So it denied the petition on those grounds. That should have been it for the case, but Justice Marshall proceeded to lecture about the power of the court to say what the law is. No one asked him to do that. It was completely unnecessary for the decision. in other words, it was complete and utter dicta. And that’s what the nine unelected individuals base their power to strike down laws? Legally, it is untenable.

    However, with respect to liberal judges, I believe the statistics I have posted above convincingly demonstrate that conservative justices are more activist than libarals nowadays

  • Todd

    “…And that’s what the nine unelected individuals base their power to strike down laws? Legally, it is untenable.”
    Posted by Alex

    J. Marshall merely took an improper legal path to arrive at the proper legal conclusion regarding judicial review.

    The power of the SCOTUS to review and strike down laws or orders, issued respectively by either the Legislative or Executive branches of government, is a Constitutionally grounded duty of the Court, when said laws or orders are interpreted as being unconstitutional and/or an act deemed ultra vires. Judicial review is fundamental to the Constitutional checks & balances among the three branches of government.

    If not for the power of judicial review, then the Court’s holdings would have no more legal effect than its dicta.

  • Impeach Obama

    Kagan and Obama both see the Constitution as an impediment for implementing their socialist transformation of America.

  • Alex

    “Judicial review is fundamental to the Constitutional checks & balances among the three branches of government.”

    No question about that. Judicial review is necessary. However, that does not change the fact that the Founders did not empower the Supreme Court with the power to review legislative acts. There is, of course, a way to do that. Put it into the Constitution. Better yet. Create a separate Constitutional Court that is obligated to take up the review of certain acts of Congress upon the referral from the legislators, the executive or a requisite number of the people. And no discretion there, please. Now, what we have is an appellate court masquerading as a Constitutional arbiter. No one gave them that power. Some unelected lawyer is going to tell me that a corporation is a person? Or that a woman does or does not have a right to have an abortion? Who the hell these people think they are?

  • Todd

    “Who the hell these people think they are?”
    Posted by Alex

    Generally, that’s a sentiment with which I can concur—at least with respect to corporations being declared artificial persons! In large part, you can thank J.D. Rockefeller for “purchasing” that little gem of judicial folly for us.

    Unfortunately, humility isn’t a prerequisite for public service. Unelected? Yes, directly speaking, the Nine are unelected; but, indirectly, their Executive “appointment” constitutes a representative electoral process, aka Senate confirmation. As I’m sure you know, the idea of unelected Court justices originates from an attempt to immunize the selection process from being politicized. Lotsa luck with that nowadays, huh?

    Again, while the Founders, for whatever reason, did not expressly endow the Court with the power of judicial review of legislative acts, it logically follows that it is an implicit power, considering the Founder’s original intent to constitute checks & balances among the branches. It has since evolved into its express form by judicial decree. But yes, I would agree, it is indeed a self-expressed power of the Court, and not a Constitutional empowerment expressed by the Founders.

    I don’t have a problem with the Court having jurisdiction over Constitutional questions—only a problem with the manner by which Constitution has been interpreted by said Court of late.

  • Alex

    “I don’t have a problem with the Court having jurisdiction over Constitutional questions—only a problem with the manner by which Constitution has been interpreted by said Court of late.”

    If we agree that it is not a problem for the court to have jurisdiction over Constitutional questions then it logically follows that we entrust them with the power to interprete the Constitution in whatever manner they see fit. It is by defintion a political rather than a judicial body. And political bodies must be elected in order to reflect the views of the people. I mean, they can take the same exact text and read it to mean that blacks have no rights whatsoever, then that they do but must be kept separate, then that it is illegal to keep them separate, then that you have to integrate, then you have to have preferences for university admissions, then no, you don’t. All under the same text. How do they do that?

  • Todd

    “…we entrust them with the power to interprete [sic] the Constitution in whatever manner they see fit….All under the same text. How do they do that?”
    Posted by Alex

    Very good point! Indeed, our trust in the Court to interpret the Constitution within a reasonable range of its original intent can certainly be broken—and said trust can also be withdrawn. Although the Nine sure seem to think so, I don’t think a carte blanche to interpret it in “whatever manner they see fit” was ever meant to be the case. It’s always been my understanding that the Constitutional check & balance on the Court by the other two (elected) branches of government were supposed to be the remedy for limiting the Court’s ability to interpret the Constitution beyond the range of the Founder’s intent.

    The Achilles heel of the process becomes apparent when any one of the three branches of the government neglect its duty to apply the checks & balances with which it has been entrusted. However, when ALL THREE fail in that duty, you end up with the dysfunctional system we’re under at present. Somewhat like a three-engine plane: it can still fly if even one engine is still operable; but, disable all three…and you can’t merely glide forever either.

    Lastly, I think the disparities and conflicts among many of the decisions by the Court result from one of two things: either judicial error (i.e., bad case law) OR the correction of previous judicial error. It’s not inappropriate for the Court to reverse itself if justice is better served by doing so. The question that causes me the most concern is, WHOSE justice are they serving? Do I trust the wisdom of the Court? No, because you’re are indeed right by saying that the Court has become more about politics than about the law or justice—even though it was never intended to be so.

  • Chris

    Alex first quoted Chris (1); then he added his own words (2). I’ve added some parenthetical material to (1) and only quoted the first part of (2).

    1) Chris wrote “If those acts (laws written by Congress) contain unconstitutional components, who else or what other body (other than the Supreme Court) is supposed to stop the act in its tracks???”

    2) (Alex replied:) “The Constitution does not empower the Supreme Court to review acts of Congress. I think any strict construction should start with this simple legal truth.”

    Alex, where in the world are you coming from??!! IF the Constitution does not state this power of the Supreme Court to declare Congressional laws unconstitutional, it was certainly part of the set up of the three branches of government. Stare Decisis, at the very least, has established this power by now. Without having to be legal scholars, most people know that racist laws had to be declared unconstitutional before Congress enacted new laws on related matters!

    Alex, you go on to say, “It (the Supreme Court) is the highest appellate court in the land, no more no less.” Yes, lower courts can ALSO declare some laws of Congress to be unconstitutional. Just because THAT is true, does NOT mean, to quote you once again, that “the Constitution does not empower the Supreme Court to review acts of Congress.”

    You make a later comment supporting the nomination of Elena Kagan, so I cannot figure out where you are coming from.

  • Alex

    Chris – I am coming from Belarus, where I went to law school. It has a European legal system, where any court’s powers must be provided directly by the Constitution or a statute or they don’t exist. I came to this country with a notion that courts must decide cases and not second-guess elected bodies. Unless, that is, it is a specially created Constitutional Court, which acts on a specific petition of those elected by the people, or the people directly.

    I came to this country and also went to law school. To my suprise, I found out that the Supreme Court’s power to strike down laws is based on nothing more than “logic” and self-serving interpretations. I mean, they create “standards of review” out of a thin air with a pre-determined result in mind.

    But, now, all theory aside, I personally think that the Supreme Court must be a liberal body emphasizing personal rights of the people over the rights of the Government and corporations. This is because Congress has abdicated its responsbility to represent people and instead, it represents corporate interests. So there has to be a counterweight to Congress in terms of looking out for the interests of the people. Unfortunately, the danger is that it may, as it is now, become conservative and start representing the will of the same corporate interests. Then the question becomes what can we do about it? I suppose nothing. You take with the good and the bad.

  • Craig

    I wish to object to Dahlia Lithwick’s characterization of the “Roberts Court” and by implication Chief Justice Roberts on the program On Point May 10, 2010.

    http://bit.ly/d5TioM at 37:55

    Ms Lithwick characterized the “Roberts Court” as “anti little guy.” No evidence was provided in support of such a characterization. There are various aspects of the court that are debated (such as its approach to “business” interests), and Ms. Lithwick has an interpretation that some may or may not agree with. Such an unequivocal statement as Ms. Lithwick’s, however, needs extensive documentation which at minimum would acknowledge the associated ambiguities (see e.g.
    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1348662 for one example).
    Casting the Roberts Court in such stark terms as “anti little guy” undermines the intellectual content of the debate, and charges it with an emotional tone that only services to obfuscate. In my view such an unprofessional approach should not be given extensive air time on your program or NPR.
    Thank you very much for the opportunity to express this view.

    Craig

  • WINSTON SMITH

    Re: “Winston Smith”
    Choosing the name of the protagonist in Orwell’s “1984″ as a nom de plume is rather odd here. Smith in the book tried to defy a repressive state; Smith on this chat appears to advocate repression of individual liberty.

    Posted by Fred from Newton MA, on May 10th, 2010 at 10:01 AM

    Actually, Fred, using the name Winston Smith is a very appropriate name. It is the liberals that suppress relevant biological information concerning the viability of the fetus that are repressing the individual liberty of the most vulnerable members of the population namely unborn children. And again, the liberals that bad mouth organizations that can help a person with homosexual desires to leave that deviant lifestyle and obtain true liberty that are again suppressing liberty.

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