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August 5, 2010

Elena Kagan is now officially Justice Kagan (once sworn in)

As detailed in this AP article, the US "Senate confirmed Elena Kagan Thursday as the Supreme Court's 112th justice and fourth woman, selecting a scholar with a reputation for brilliance, a dry sense of humor and a liberal legal bent." Here are a few of the details:

The vote was 63-37 for President Barack Obama's nominee to succeed retired Justice John Paul Stevens. Five Republicans joined all but one Democrat and the Senate's two independents to support Kagan. In a rarely practiced ritual reserved for the most historic votes, senators sat at their desks and stood to cast their votes with "ayes" and "nays."...

But the two parties clashed over her nomination. Republicans argued that Kagan was a political liberal who would be unable to be impartial. Democrats defended her as a highly qualified legal scholar.

She is the first Supreme Court nominee in nearly 40 years with no experience as a judge, and her swearing-in will mark the first time in history that three women will serve on the nine-member court together.

Her lack of judicial experience was the stated reason for one fence-sitting Republican, Sen. Scott Brown of Massachusetts, to announce his opposition to her confirmation Thursday, just hours before the vote. Though calling her "brilliant," Brown -- who had been seen as a potential GOP supporter -- said she was missing the necessary background to serve as a justice.

"The best umpires, to use the popular analogy, must not only call balls and strikes, but also have spent enough time on the playing field to know the strike zone," Brown said.

Democrats said Kagan could help bring consensus to the polarized court and act as a counterweight to the conservative majority that's dominated in recent years. With her confirmation, Sen. Chuck Schumer, D-N.Y., said near the end of a three-day debate, "average Americans will be a step closer to once again having their voices heard in the highest court in the land."...

A handful of Republicans broke with their party to back Kagan. They argued that partisanship should play no role in debates over the Supreme Court and have called Obama's nominee qualified.

Still, it was clear that unlike in past decades -- when high court nominees enjoyed the support of large majorities on both sides -- party politics was driving the debate and vote on Kagan, much as it did last year when the Senate considered Obama's first pick, Justice Sonia Sotomayor, and former President George W. Bush's two nominees, Chief Justice John Roberts and Justice Samuel Alito.

UPDATE:  I just noticed that over at Crime & Consequences here, Kent has this noteworthy reaction to the Kagan confirmation: 

I do not expect anyone nominated by the present administration to be a positive force in criminal law, but I am more concerned about Justice Kagan than Justice Sotomayor.  The latter's experience as a deputy district attorney and trial judge assured us that she had looked evil in the face and knew how bad violent criminals really are.  A career spent in the ivory tower provides no such assurance. It is too easy to be blase about crime and wring your hands over the poor, unfortunate torturer-rapist-murderer when you only read the facts in a transcript or opinion and then go home to your safe, leafy neighborhood.

I hope these apprehensions prove unfounded. We will see.

And the first commentor to Kent's post, who uses the label Cal. Prosecutor, adds this spin to Kent's concerns:

Kent, did your concern extend to CJ Roberts? He never served as a trial judge and the closest he came to being a prosecutor was serving as special assistant to AG William French Smith.

Justice Scalia has spent considerable time in multiple ivory towers, also never served as a trial judge, and the closest he came to looking evil in the face was when he supported Nixon's claim to ownership of certain infamous tapes while serving with the Office of Legal Counsel for the Justice Dept.

Justice Thomas was never a trial judge and while he worked with in the Missouri AG's Office, I understand that it was in the tax division.

Justice Kennedy took over his father's private law firm and was chiefly known in Sacramento as an effective lobbyist, giver of lavish parties and drafting a state initiative on spending before going to the 9th Circuit.

I certainly would agree with you that we should have more Supreme Court Justices that had actually served in the trenches of criminal law, like Alito, Sotomayor or O'Connor.  Perhaps then we would not see such ivory tower opinions like the much-lamented (by us prosecutors, anyway) Crawford case where Justice Scalia infamously "[left] for another day the any effort to spell out a comprehensive definition of testimonial".  You may recall that Justice O'Connor (a former prosecutor) had a great deal to say in her dissent about that rather airy detail.

Until that day comes, I hope that you will permit an observation that your apprehension appears driven more by ideology than any lack of experience in looking evil in the face.

August 5, 2010 at 05:16 PM | Permalink


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Feel free to allow partisanship, political correctness, diversity training, total bias, bribery on the court. Those are theatrical distractions, but make no difference. It was Scalia that led the campaign against sentencing guidelines. Politicking is all for show.

All lawyers on the court have only one real value, rent seeking. Their utterances are all masking ideologies to hide the real aim of the court, the rent.

If one wanted to make a significant difference in court jurisprudence, one would appoint a non-lawyer. Take the worst candidate, a wine addled, puking bum from the gutter, you would still get an upgrade in common sense, logic, and clarity of decision writing.

Posted by: Supremacy Claus | Aug 5, 2010 7:02:38 PM

whopee another TRAITOR on the bench! Just what we needed.

Posted by: rodsmith | Aug 6, 2010 12:13:06 AM

Our President of the United States had a great couple of months;

1. Financial reformed passed, thanks to “Tea Party Approved” Senator Scott Brown (R-MA)
2. AZ SB1070 (written by Neo Nazi lover, Russell Pearce and private prison giant Corrections Corporation of America (CCA) lover, Jan Brewer, both “Tea Party Approved” ) fails in court when legally challenged.
3. CA Prop 8 (financially supported by San Diego businessman Terry Caster, owner of A-1 Self Storage, Company, San Diego businessman Doug Manchester owner Manchester Grand Hyatt Hotel and the Grand del Mar, Church of Latter Day Saint (LDS/ Mormons), Catholic Church, both “Tea Party Approved”) fails in court when legally challenged, the judge appointed by Ronald Reagan.
4. Elena Kagan Confirmed to Supreme Court, (63 to 37, with the help of Susan Collins, Olympia Snowe, Sen. Lindsey Graham, Judd Gregg, and Richard Lugar, could they all be “Tea Party Approved”? I wonder.
5. Another Birther lawsuit (Captain Pamela Barnett, V. Barack Obama) and “Tea Party Approved”, was dismissed.

Happy Birthday Mr. President, even though belated, keep going, you are doing great and I am personally enjoy that the so called “Tea Party” is taking it so well. Love it.

Posted by: Linda | Aug 6, 2010 12:58:31 PM

My answer to the commenter quoted above is in the thread at C&C, so I encourage anyone interested to just click on the link in the post and see it there.

Posted by: Kent Scheidegger | Aug 6, 2010 2:19:24 PM

I support having a non-lawyer on the Court, to make it less like an advanced seminar at one of those elite law schools, with everyone so impressed with their superior intelligence, they could themselves talk endlessly.

One feature that would not be missed would the arrogance to lawlessly overturn legislation, and to impose one's own arbitrary, unvalidated personal feelings on the entire nation, at the point of a gun. A little more deference to democratically arrived at legislation. Overall, the work of this lawyer nest of insurrection has been catastrophic, including causing our worst war, the Civil War. Then one notices something. Dred Scott. Not covered in textbooks on Constitutional law. This is similar to Japanese history books devoting a few pages to WWII.

Posted by: Supremacy Claus | Aug 6, 2010 3:09:27 PM

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