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May 7, 2010

"Elena Kagan Will Be Obama's Supreme Court Pick: Mike Allen"

The title of this post is the headline of this new Huffington Post piece, which reports on an insider account that indicates that this news will be "officially" leaked on Sunday in anticipation of a Monday formal announcement.  Solicitor General Kagan has been the "leader in the clubhouse" since Justice Stevens announced his retirement, so this pick would not be at all surprising.  It still would be historic, as it would mean (assuming confirmation) that the US Supreme Court will have three female Justices for the first time in its history.

For criminal justice fans, the prospect of a Justice Kagan is especially interesting because she has, to my knowledge, no tangible record whatsoever on any of the criminal justice issues that regularly come to the Supreme Court (and fills up much of the cert pool).  Especially given that the last two new Justices were both former prosecutors, it will be especially interesting to what now adding a criminal justice "novice" to the Court could mean for its jurisprudence.

May 7, 2010 at 02:16 PM | Permalink

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Glenn Greenwald
Friday, Apr 30, 2010 05:31 ET
Obama's criticisms of the Warren and Burger courts

Mr. Obama’s comments, which came as he prepares to make a Supreme Court nomination, amounted to the most sympathetic statement by a sitting Democratic president about the conservative view that the Warren and Burger courts — which expanded criminal defendant rights, required busing to desegregate schools and declared a right to abortion — were dominated by "liberal judicial activists" whose rulings were dubious. . . .

Posted by: George | May 7, 2010 4:06:06 PM

She will be an efficient guardian of the status quo. She believes in more centralized power, as a strong advocate for two Presidents' powers. She is an expert in the law as it is today. She will likely charm Republicans and offend left wing Democrats. A good tactical choice by the President if the aim is quick confirmation. Does she have any imagination, any agenda of improving the mess that is the law now, of reducing the tyranny of the criminal cult enterprise, of promoting freedom, of protecting our nation, and not just the powers of her Presidential employers, of siding with the productive little guy paying her salary, against government over-reaching? Doubt it. Will her intellect allow her to balance the bs machine of John Roberts? They may even agree on a lot. Only tiny increments of change should be expected.

Is she a member of the hierarchy of the criminal cult enterprise? Is she on the arrest list? You bet.

Posted by: Supremacy Claus | May 7, 2010 4:14:19 PM

This means that every single case the Court has agreed to hear involving a federal criminal law issue that will be argued next term will have only eight justices deciding it.

Posted by: FPD | May 7, 2010 4:20:37 PM

How extremely disappointing given the earlier statements that the President was looking for someone who would emulate Justice Stevens leadership on fairness. Now, there'll be no adult in the room. :-( Will she continue to feel that her job will be to uphold the government prosecutors - whether they are fair or not?

Posted by: hope4justice | May 7, 2010 5:22:24 PM

Kagan has a serious problem, namely judicial temperament. Her vociferous denunciation of the military for Dont Ask; Don't Tell showed obvious anger issues. The bottom line is that the military was only following the rules set forth by Congress. Thus, instead of focusing her anger on Clinton and the Congressmen that signed/passed this legislation, she picked on the military, and in a fit of pique, decided that students at her institution couldn't have access to military recruiters. What an unpatriotic bully.

Posted by: federalist | May 7, 2010 6:33:04 PM

I said it before I say it again. A big mistake. The more time passes the more I'm glad I didn't vote for this charlatan.

Posted by: Daniel | May 7, 2010 6:43:21 PM

The only reason Clinton agreed to enact DADT was because of pressure from the military. The senior brass threatened to resign en masse if the policy were simply to allow LGBT persons to serve openly. There is no innocent party in the DADT nightmare that has ensued.

As to Kagan-as-nominee, the problem of diversity lies in that she will not be bringing anything new to the Court. Particularly in criminal matters, which are so often tied up in race, it is essential to have both regional and academic variety. Different regions and states have different approaches to criminal justice. Instead, Kagan brings the same Northeastern, Ivy League mindset in which the Court is already drowning. Justice Stevens carried a more midwestern practicality to the Court and he replaced Justice Douglas, who was a man of the west. Looking to the immediate predecessors in the seat, Elena Kagan seems a poor choice.

Posted by: Student | May 7, 2010 8:27:04 PM

Politically this is a poor choice (if it actually is the choice). I don't see how she does much to help Obama.

She'll very likely get confirmed, but there will be some problems. She has precious little litigating experience and no judicial experience. Her scholarly writings are not nearly as numerous as you would think. As Doug points out, she has no record on criminal law; and as federalist points out, her furious opposition to military recruiters on campus is not going to sit well with Republicans, a lot of independents and some Democrats. It was also unjust. The recruiters were carrying out the law. The law was adopted by a Democratic administration in which she served (as Associate White House Counsel). And the military is a popular institution right now (more popular than the President and vastly more popular than Congress).

She reminds me in some ways of Ginsburg, who is a reliable liberal capable of taking law seriously every now and again. What I'm hearing is that her big advantage is that she's a pleasant person who might appeal to Kennedy. In that sense, she is a strategic choice. But if that's what Obama is thinking, he's overestimating how much Kennedy listens to anybody but Kennedy.

Her other advantage is youth. She's 49, replacing a guy who's 90. You do the math.

Posted by: Bill Otis | May 7, 2010 8:54:49 PM

Whatever, student. The bottom line is the law is what it is, and the military didn't enact it.

As for Stevens' Midwest practicality, well, the idea that the painlessness of lethal injection makes it unconstitutional is about as anti-common sense as one can get. Good riddance to this lawless jurist.

Posted by: federalist | May 7, 2010 10:19:29 PM

Bill, what's even more pathetic about Kagan is that she picked on the military, which could not fight back. She should have focused her ire on Congress. Contemptible.

Posted by: federalist | May 7, 2010 10:21:35 PM

If Kagan's the choice, then Obama will have wasted two opportunities to begin derailing the movement-judge freight train.

Genuflecting minimalists certainly wasn't what I'd hoped for from Obama.

What a profound disappointment it would be.

Posted by: John K | May 8, 2010 8:47:23 AM

John K, why would you have hoped for anything but dishonesty from this President? This is a man who can call a six-on-one racially motivated attack in which a victim is knocked unconscious, stomped while laying on the ground and the attackers only stop when physically forced to do so a "schoolyard fight". Obama is a dishonest man. Deal with it.

Posted by: federalist | May 8, 2010 1:27:06 PM

Gallup's poll is loaded.

It claims the majority (42%) prefer a conservative, but 27% want more liberal and 24% want to "Keep as it is now."

Doesn't "as it is now" suggest replacing a "liberal" with a "liberal"? 27 + 24 = 51%.

The poll actually suggests the People prefer a balance.

Posted by: George | May 8, 2010 5:02:15 PM

i have a feeling that if obama is retard enough to make this neo nazi wannabe a Supreme Court Justice...it will go down in history right next to the election of abraham lincoln!

The start of the 2nd Civil War

Posted by: rodsmith | May 8, 2010 6:48:46 PM

George --

"Gallup's poll is loaded. It claims the majority (42%) prefer a conservative, but 27% want more liberal and 24% want to 'Keep as it is now.' Doesn't 'as it is now' suggest replacing a 'liberal' with a 'liberal'? 27 + 24 = 51%."

Um, George, 42 + 24 = 66%. 66% > 51%.

"The poll actually suggests the People prefer a balance."

The poll more strongly suggests that the people prefer that the balance be more toward the conservative side.

Posted by: Bill Otis | May 8, 2010 8:05:26 PM

Hello. "The Public" is a moron. Even if you've missed all the other signs, surely you've seen the Leno man-in-the-street quizzes. Most Americans don't know anything about anything.

The vast right-wing conspiracy's Limbaugh-Beck-Hannity-O'Reilly media echo chamber is good for a 15-20 point swing in any poll.

Posted by: John K | May 8, 2010 11:09:48 PM

"The public is a moron," said King George....

Posted by: Bill Otis | May 8, 2010 11:20:19 PM

Mr. Bill, so you argue that 'Keep as it is now" means replacing Justice Stevens with another Justice Alito?

Conservative propaganda is so much fun.

Posted by: George | May 9, 2010 12:17:00 AM

George --

You: "Gallup's poll is loaded. It claims the majority (42%) prefer a conservative, but 27% want more liberal and 24% want to 'Keep as it is now.' Doesn't 'as it is now' suggest replacing a 'liberal' with a 'liberal'? 27 + 24 = 51%."

Me: "Um, George, 42 + 24 = 66%. 66% > 51%."

Sorry, George. It ain't propaganda. It's arithmetic.

"...so you argue that 'Keep as it is now' means replacing Justice Stevens with another Justice Alito?"

When I want to argue that, I'll be sure to let you know. Nice try at a strawman, though. Here's something I'll argue, however: How about replacing the Republican-appointed Stevens with the Clinton-appointed Chief Judge William B. Traxler of the Fourth Circuit? Got any objections to that?

Posted by: Bill Otis | May 9, 2010 1:10:10 AM

It's a loaded poll with a loaded question that assumes the 24% who want to "Keep has it is now" don't want a liberal to replace a liberal.

"When I want to argue that, I'll be sure to let you know. Nice try at a strawman, though."

It's called an allusion. Look it up.

1 : an implied or indirect reference especially in literature; also : the use of such references
2 : the act of alluding to or hinting at something

The allusion was the replacement of a liberal with a conservative as if that is what the 24% who want to "Keep has it is now" really want. They don't. But you do. They want another Stevens.

Posted by: George | May 9, 2010 2:45:58 AM

George --

It's called a strawman. No need to look it up. By now you own it. But I'll give you credit. You share it liberally, as it were, with John K and a cast of dozens.

Here's the question you sailed by: "How about replacing the Republican-appointed Stevens with the Clinton-appointed Chief Judge William B. Traxler of the Fourth Circuit? Got any objections to that?"

Do you?

Posted by: Bill Otis | May 9, 2010 2:03:16 PM

"Kagan has a serious problem, namely judicial temperament. Her vociferous denunciation of the military for Dont Ask; Don't Tell showed obvious anger issues."

You're actually going to accuse somebody else of having temperament and anger issues? That's like Wilt Chamberlain giving somebody a lecture on the virtues of celibacy.

Posted by: JC | May 9, 2010 4:11:54 PM

JC --

"That's like Wilt Chamberlain giving somebody a lecture on the virtues of celibacy."

If Wilt is lecturing Bill Clinton, the lecture is correct notwithstanding the source.

Whether Kagan has anger issues has nothing to do with who says she does. It has to do with her words and behavior. Her behavior in attacking the military for following the law as set forth by the commander-in-chief (whom she served in White House Counsel's Office) was out of line. Fortunately it was rectified, for the most part, by the Solomon Amendment, which was unanimously upheld by the Supreme Court over a challenge brought by those sharing exactly Kagan's views (I don't remember if Kagan herself signed an amicus brief).

I don't conceptualize the issue as one of anger. I do conceptualize it as one of unjustified resentment toward the military, and, in the world we face today, that is a problem in a Supreme Court Justice, partucularly one who would be replacing the Court's only veteran.

Posted by: Bill Otis | May 9, 2010 6:01:34 PM

I am just a full timee worker but i just wwant to say i would trust any decision taken by obama or any other corrupt leader.

Posted by: New World Order | Apr 11, 2011 5:41:20 PM

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