Author Topic: Get ready for Elena Kagan's confirmation hearings...  (Read 7760 times)

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Offline Satyagraha

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Get ready for Elena Kagan's confirmation hearings...
« on: June 27, 2010, 01:21:56 pm »
Primer on senators judging would-be Justice Kagan
Jun 27, 8:43 AM (ET)

WASHINGTON (AP) - A cast of graybeards, rising stars and a lame duck once in charge convenes Monday as the Senate Judiciary Committee to consider giving President Barack Obama's Supreme Court nominee, Elena Kagan, a lifetime appointment as a justice.

This collection of 12 Democrats and seven Republicans can ask Kagan questions on virtually any topic - or pontificate or crack wise - during what amounts to a nationally televised job interview.
But it's not entirely about the nominee. The lawmakers themselves are some of the nation's best political performers, and five are campaigning for re-election.

What's new is the experience level of committee members. Three have chaired confirmation hearings before. There are no rookies; even the junior senators toward the end of the dais participated in the questioning last year of Obama's first nominee for the high court, Sonia Sotomayor.

One of the Senate freshmen, Delaware Democrat Ted Kaufman, has been involved in hearings for a dozen nominees to the high court, counting Kagan; that's from his long service to Joe Biden, now the vice president but before that a Delaware senator who once led the Judiciary Committee.

The atmospherics, too, are different.

Unlike Sotomayor's hearings, Kagan's are taking place in an election year in which 36 seats in the Senate are up for grabs. Six are held by committee members.

For Democratic Sen. Arlen Specter of Pennsylvania, a former chairman, Kagan's hearings could be the last. Specter lost this year in a primary.

The other five seeking new terms are not in particularly tough races, but could spend their question time on subjects important to their party bases.

Expect Democrats to promote Kagan's pragmatic streak and her legal acumen. She's an Ivy League scholar, former Harvard Law School, presidential counselor in the Clinton White House and current solicitor general, the government's top lawyer before the high court.

Republicans are examining her experience from other angles.

She's never been a judge. As an adviser to President Bill Clinton, she showed a political shrewdness that GOP lawmakers say isn't appropriate for an impartial justice. Most of all, they've taken aim at Kagan's brief refusal to give military recruiters access to the law school's career services office, over the "don't ask don't tell" policy against openly gay soldiers.

A look at some of the players expected to take up screen time during this week's hearings.


The senators arranged by seniority around the horseshoe-shaped dais include several with decades of experience in confirmation hearings to the high court.

_Chairman Patrick J. Leahy, D-Vt., 70.

He's third-most senior of 100 senators, a former state prosecutor who might otherwise have made a living as a photographer. He tends to run the committee with a strict gavel and a wry sense of humor. Leahy led Sotomayor's hearings last summer and has participated in every such proceeding since President Ronald Reagan nominated Sandra Day O'Connor in 1981.

In the past, Leahy has shown impatience with colleagues who talk past their allotted time. But he's also ignored the clock to offer comment, cut off his colleagues, rebut them and otherwise expound. As chairman, he can.
Up for re-election, Leahy is less likely than ever to hold back, though he is not facing any serious competition for his seat. Outside the Senate, Leahy can be spotted on a playground in suburban Virginia with some of his five grandchildren and relishes time at his 300-acre farm in Vermont.

_Sen. Orrin Hatch, R-Utah, 76.

The lanky, silver-haired Hatch has twice served as committee chairman and participated in hearings for 13 high court nominees, beginning with O'Connor. He voted to confirm Sotomayor to the federal bench in 1998, then against her last year. She was the first Supreme Court nominee he declined to endorse. He said he had doubts that she would rule according to the Constitution.
A great-grandfather and songwriter adept at the piano, organ and violin, Hatch is known for his conservative judicial philosophy and his staunch defense of the troubled nominations of Robert Bork, who was not confirmed and Justice Clarence Thomas, who was.

He has said he generally believes presidents should be given deference to their nominees.

_Sen. Arlen Specter, D-Pa., 80.

Specter is both a graybeard and a lame duck. The grandfather of four has chaired as many confirmation hearings as Leahy and has a half-century legal and senatorial career behind him. But that's the key: It's behind him now.
After switching parties last year, Specter lost last month in his bid for a sixth term.
Given that, he's considerably less accountable than his colleagues. But Specter's never been predictable or shy in his dealings with nominees, colleagues, presidents or reporters.
In speeches and statements, and in letters to Kagan, Specter has complained that the high court has curtailed Congress' power in a series of recent decisions. He's tired, he said on the Senate floor, of hearing "lip service" from nominees on this point.
"Let's sharpen our lines of questioning, colleagues, as we move forward to the hearings on Solicitor General Kagan," Specter said.

Sen. Jeff Sessions, R-Ala., 63.
The former federal prosecutor cut his teeth in this role in the Sotomayor hearings. Then, there was some whispering as to whether the soft-spoken Southern partisan was up to the job of succeeding the sharp-edged Specter in the lead GOP role, and going nose to nose with Leahy.
Leading the minority means that even if every Republican votes against Kagan, her nomination still would advance to the full Senate. But this is an election year, which means Sessions must perfect his role reassuring the Republican base that their interests are being represented in such a high profile forum.
He'll lay out the Republicans' doubts about Kagan and dole out specific lines of questioning to the other six Republicans on the committee - from whether she harbors disdain for the military to whether she allows politics to bear on her decisions.

Sen. Tom Coburn, R-Okla., 62.
Socially conservative viewers looking for reassurance this election year might tune in toward the end of each round of questions, when this cowboy boot-wearing obstetrician takes the microphone. Coburn, a grandfather of five who is up for re-election, scored a 100 percent approval rating last year from the American Conservative Union. He tends to focus on subjects like abortion and gun rights.
But Coburn has served notice this year that he is concerned with Kagan's focus on international law during her career, from Harvard to the solicitor general's office.
"I believe significant questions have been raised as to whether Kagan, like Sotomayor, will use foreign law if confirmed," Coburn wrote on his web site.

The four most junior committee members are freshman Democrats for whom Sotomayor was their first Supreme Court nominee as senators. They sit at the end of the dais and often have their questions swiped by more senior colleagues.
But they are a year more experienced at the business of confirmation and their array of experience in law, engineering and entertainment make them worth watching.

Sens. Sheldon Whitehouse of Rhode Island and Amy Klobuchar of Minnesota are lawyers and former prosecutors. Whitehouse, 54, is considered one of the Democrats' most articulate senators. Klobuchar, 50, has been teased about being nominated to the high court herself.

Kaufman, 71, is an engineer by education who joined Biden's Senate staff in 1973 and served as his top aide for nearly two decades. As such, he was involved in Biden's deliberations over 10 nominees to the high court.
Everybody knows entertainer-turned-senator Franken, 59, who was sworn in last year just before the Sotomayor hearings. In a speech this month to the American Constitution Society, Franken complained that its conservatives, not liberals, who have become activist judges.

Possible pitfalls for Kagan's with her own words?
Jun 25, 2:11 PM (ET)

WASHINGTON (AP) - How might a Justice Elena Kagan rule on the leading issues of the day?

Some hints are in her speeches, writings and answers to senators who confirmed her for the job she now holds, solicitor general, the government's top lawyer.  Kagan makes her case for a spot on the Supreme Court in hearings beginning Monday before the Senate Judiciary Committee. Kagan has never served as a judge, so don't look for opinions to analyze.

A look at some of the major issues:


Kagan hasn't spoken publicly on Roe v. Wade, the 1973 Supreme Court decision saying a woman has a constitutional right to an abortion, as a legal or personal matter. But she has worked for two Democratic presidents, Barack Obama and Bill Clinton, and Justice Thurgood Marshall, all of whom held pro-choice views.

During her solicitor general hearings, she wrote, "Under prevailing law, the Due Process Clause of the Fourteenth Amendment protects a woman's right to terminate a pregnancy, subject to various permissible forms of state regulation."
While working for Clinton, she recommended he support a compromise ban on most late-term abortions. As a clerk for Marshall, she criticized a lower court ruling requiring Monmouth County, N.J., to pay for inmates' elective abortions, saying it was "well-intentioned," but "parts of it are ludicrous." Kagan said women generally have no right to have their abortions paid for, and "I do not see why prisoners should have such rights."

Here's what nominees tell senators: The Constitution provides a right to privacy and I can't talk about specific cases that may come before the court in the future.


Kagan hasn't kept her silence on the military's ban on gays serving openly.

In an e-mail to students while serving as Harvard law school dean, Kagan said that policy was "a profound wrong - a moral injustice of the first order." She got involved after an appeals court ruled unconstitutional a law that threatened schools' federal money if they didn't allow military recruiters on campus. Kagan enforced Harvard's policy by banning the military from using the on-campus recruiting office. She also arranged for a student group to bring together recruiters and law students who were interested in the military.

She signed on to an unsuccessful attempt to defend the lower court's decision when the case reached the Supreme Court. After losing, she told students that the military could return to campus.

But, she said, "I believe the military's discriminatory employment policy is deeply wrong - both unwise and unjust."
Kagan also wrote in response to a written question at her solicitor general hearing that there was "no federal constitutional right to same-sex marriage."


Kagan once wrote that in Marshall's view, interpreting the Constitution "demanded that the courts show a special solicitude for the despised and disadvantaged."

But when asked by Sen. Arlen Specter, D-Pa., about whether the courts or politicians should "lead in creating a more just society," Kagan said, "I think it is a great deal better for the elected branches to take the lead in creating a more just society than for courts to do so."

She also said, "I think a judge should try to the greatest extent possible to separate constitutional interpretation from his or her own values and beliefs. In order to accomplish this result, the judge should look to constitutional text, history, structure, and precedent."


As senators reviewed her nomination to be solicitor general, Kagan said there was nothing about her personal views on the death penalty that would make it difficult for her to carry out the duties of that job.

She later added in a question about the use of foreign law in U.S. courts: "I do not believe that international law (assuming it has not been incorporated into domestic federal law) can prevent federal and state governments from broadening the application of the death penalty should they wish to do so."


While working for Marshall, Kagan wrote a memo in which she called on him not to hear a man's appeal of his conviction for having an unlicensed gun. The defendant's "sole contention is that the District of Columbia's firearms statutes violate his constitutional right to 'keep and bear arms,'" Kagan wrote. "I'm not sympathetic."

But during her confirmation hearing as solicitor general, Kagan told senators that there "is no question" that the Second Amendment guarantees individuals the right to keep and bear arms.

She also said that right "like others in the Constitution, provides strong, although not unlimited, protection against governmental regulation."


Allowing video and audio coverage of the Supreme Court, she said last year, would let people "see an amazing and extraordinary event ... debate of really extraordinary intellectual depth and richness."
"I think if you put those cameras in the courtroom, people would say, 'Wow,'" Kagan said at a judicial conference.


As solicitor general, Kagan unsuccessfully argued against a Supreme Court decision upholding the First Amendment rights of corporations and labor unions to spend money on campaign ads. She's likely to tell senators that she was bound to represent her client, the government, regardless of her own views.

But when Obama announced Kagan's nomination, he made sure to point out that she chose that campaign finance case as her first to argue before the high court, indicating that Kagan may agree with the president's contention that case was wrongly decided. Specter has said that Kagan has criticized the decision in terms of the principle that the Supreme Court should defer to Congress.

While working for Clinton, she and other White House aides wrote: "It is unfortunately true that almost any meaningful campaign finance reform proposal raises constitutional issues and will provoke legal challenge. This is inevitable in light of the Supreme Court's view - which we believe to be mistaken in many cases - that money is speech and that attempts to limit the influence of money on our political system therefore raise First Amendment problems."

Kagan has criticized the Senate's ability to get Supreme Court nominees to share their opinions on the important legal issues of the day.

"When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public," she said in a book review.

Look for a possible backtrack from that view.
Senate Judiciary Committee:
And  the King shall answer and say unto them, Verily I say unto you, 
Inasmuch as ye have done it unto one of the least of these my brethren,  ye have done it unto me.

Matthew 25:40

Offline larsonstdoc

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Re: Get ready for Elena Kagan's confirmation hearings...
« Reply #1 on: June 27, 2010, 01:28:13 pm »

  This will just be a big show of old men and a fat middle-aged woman.  She will be confirmed.

  Like AJ has said a 100 times--Kagan is an enemy of the 1st and 2nd Amendments.

Offline chrisfromchi

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Re: Get ready for Elena Kagan's confirmation hearings...
« Reply #2 on: June 27, 2010, 01:30:44 pm »
I dunno i still think they'll dump this one and give you cass sunstein.

Offline larsonstdoc

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Re: Get ready for Elena Kagan's confirmation hearings...
« Reply #3 on: June 27, 2010, 01:35:51 pm »
I dunno i still think they'll dump this one and give you cass sunstein.

  Not Cass!  The guy for animals to have standing in court.  Not Momma Cass!  OK Digler, dig up all the negative articles on these jerks!

  Please give us a 3rd choice.