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May 11, 2010

Anyone note anything notable (or dealing with criminal justice) in the Kagan converage?

Over at all the biggest law blog spots like How Appealing and SCOTUSblog and The Volokh Conspiracy have more links and analysis concerning President Obama's nomination of SG Elena Kagan for the Supreme Court than any human could possibly process.  Based on a brief scan of the coverage and commentary, I have yet to see any new or unanticipated issues raised in conjunction with her nomination. Even more importantly for this space, I have yet to see a single story focused on Kagan and the standard criminal justice issues (as opposed to "war on terror" issues) that comprise a large part of the SCOTUS docket.

The question in the title of this post is my bleg to readers to help me keep an eye out for any especially interesting or blog-worthy stories about Kagan and/or about the views she might have on SCOTUS-significant criminal justice issues ranging from the death penalty to the Second Amendment to Apprendi and Blakley and Booker and Crawford.  As has been the recent modern tendency with SCOTUS nominations, I expect and fear that important real-world criminal justice issues will take a back seat to many other issues that play better on talk radio in the discussion over SG Kagan. 

Some recent related posts on the Kagan nomination:

UPDATE I just noticed in a comment thread to a prior post that an anonymous commentor going by the label  "Law faculty factory fellow" has spotlighted this intriguing NYTimes op-ed by David Brooks about SG Kagan, which is headlined "What It Takes."  The anonymous commentor adds this comment before the link: "Organization Kids: Kagan and Prof. Berman both fit the mold pretty well."  Candidly, I am not sure whether to be flattered or insulted, and thus I will opt for feeling flattered to be named in the company of the woman very likely to be our newest (and youngest) Supreme Court Justice.

May 11, 2010 at 03:30 PM | Permalink


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I would appreciate a history example of a homosexual in any position of power, anywhere in the world, who increased the freedom of people.

Posted by: Supremacy Claus | May 11, 2010 11:31:57 PM

John Stewart noted a prevalent fascination with her height in the coverage.

And Supremacy needs to be offensive I will respond in kind with "what about Jesus?"

Posted by: Matt | May 12, 2010 12:01:52 AM

Prof Berman,

It was an insult.

"Organization kids" in general should probably take note while they still have a chance: robots of the near future will be able to do your kind of thinking better than you.

To protect your career trajectory, consider evolving into a human...just to play it safe.

Posted by: Law faculty factory fellow | May 12, 2010 2:35:46 PM

Matt: I can easily be persuaded Jesus was gay or at least bi. The lifestyle, the company, the message, the drama. Gay.

God of the Old Testament? Definitely an irritable old poof. When it comes time to have a Son, he does it without contact with the beautiful form of the maiden he chooses, by in vitro. Or else, she was a single mother who made up a story to evade being stoned to death. Her tall tale thereby would have set off history's greatest misunderstanding, Christianity.

It is not clear that people had more freedom under the Romans or under the Christians. Without an inventory of freedoms, I am guessing, more freedoms for the ordinary person under the Romans. The Romans did not impose, at the point of the sword, their holier than thou self-denials.

What I cannot be persuaded of? That Jesus is from history, and not from mythology. His story was a dime a dozen propaganda fodder for the era, with 1000's of Messiahs all over the region. It was an occupation. His sentencing, if it ever took place, was the publicity boost that made him memorable and stand out. The most important sentencing in history has no documentation, and may never have happened. Thank the jurisconsultus.

Posted by: Supremacy Claus | May 12, 2010 10:03:30 PM

Getting back to Kagan. Her Ivy education shows in her work. She was indoctrinated in those Ivy treason indoctrination camps. As an alumna, she has to be presumed a traitor, a dedicated, all out traitor, until proven otherwise.

She always blames America first. She wants it to change to France so Ivy grads can run the entire nation, like her awful, clueless, Commie, French twit peers from the Ecole Normale Superieure,


instead of Southern good ol' boys. Yes, lawyers, but at least, they love this country. What a horrible candidate Kagan is, an existential threat to the nation. This anti-military, internal traitor, Capo di tutti Cappi of Treason Camp Number 1 for the criminal cult enterprise that is the lawyer profession, the font of America bashing, innovative ideas to crush our freedoms, and to destroy the country.

She likely wants to hand over the nation to the Taliban in her heart, she hates us so much. Here is the dumbass irony, her ilk would be the first to be beheaded in a stadium, lesbian, educated female, with an uppity, disrespectful tongue. The hilarious irony is that she benefits the most of anyone from the effort, sacrifice and protection of the military. Her hate of the nation is so intense, it is suicidal.

At some point, after a WMD is set off in a city, after the lawyer-traitor collaboration with and enablement of the enemy, the public will decide, enough. Payback will be wicked.

Posted by: Supremacy Claus | May 12, 2010 11:06:04 PM

Not theoretical nor philosophical, but in her legal decisions.


I may or may not agree with her. Saudi citizens offended by cartoons or such may sue US citizens in Saudi civil court, and have American assets seized, such as a hand.

In her place, I would not have dropped litigation against financiers of terror, but would have initiated, encouraged, and funded test lawsuits in Saudi Arabia, or at the World Court.

Posted by: Supremacy Claus | May 13, 2010 4:50:58 AM

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