Elena Kagan

Elena Kagan Versus Republican Senators: A Superb Performance! :)

Supreme Court nominee Elena Kagan put on a superb performance in her appearance this week before the Senate Judiciary Committee! πŸ™‚

Kagan displayed great intelligence and knowledge about the courts and the law, and was excellent in the use of humor and sarcasm, making her one of the more interesting nominees to appear before the Judiciary Committee in recent years! πŸ™‚

She made some of the Republicans look mediocre in their pettiness and criticisms, and did not back off from her effusive praise of her mentor, Associate Justice Thurgood Marshall, for whom she worked as a clerk for a few years on the Supreme Court!

The attacks on Marshall’s view of the Constitution demeaned NOT Marshall, but those Republicans who attacked his judicial record!

Kagan came across as clearly a liberal in her background and experiences, and will be an excellent addition to the Court!

Her differing experiences, including NOT being a judge, will create some diversity on the Court that is much needed!

It seems clear that she will easily be confirmed, and that she may get more GOP votes than originally expected! πŸ™‚

So, Solicitor General Kagan, soon you will be Associate Justice Kagan! πŸ™‚ Congratulations! πŸ™‚

Republican Senators Attack Thurgood Marshall’s Judicial Philosophy! :(

Supreme Court nominee Elena Kagan has handled herself well today, her first full day of testimony before the Senate Judiciary Committee!

But it is obvious that Republican Senators are out to condemn the judicial philosophy and reputation of the first African American to serve on the Court, Thurgood Marshall, appointed by Lyndon B. Johnson in 1967, and serving until his retirement in 1991! πŸ™

Kagan served as a law clerk under Marshall, and reveres him in an appropriate way! But, of course, conservatives hate him, as he was the lawyer in the Brown V. Board of Education case in 1954, and was an unabashed liberal on the Supreme Court! His goal was to care about the average American, not just the rich and powerful, which unfortunately is who the Republicans care about when it comes to the law! πŸ™

To Republicans, “activist” conservatives such as the four on the Court now, are just fine and, of course, are NOT “activist”! πŸ™

But god forbid to have “activist” liberals such as Marshall, or William Brennan, or Earl Warren, or Harry Blackmun, or Louis Brandeis on the Court, because they might actually shape the Court to do what is best for the people, rather than the corporations that this conservative Court so adores! πŸ™

As the New Republic declared today, the Supreme Court desperately needs a Louis Brandeis to shape the future of constitutional law!

The question is whether Elena Kagan has the potential to do that, and how the future of the Court might be affected by an activist in the mold of Thurgood Marshall or Louis Brandeis! It seems possible that she could, indeed, fill that role! But of course, there is no way to forecast the future, but we can hope for the best!

Pat And Bay Buchanan And Supreme Court Nominee Elena Kagan

The Buchanans, Pat and Bay, are at it again, stirring up controversy, and making many observers “roll their eyes”! πŸ™‚

Pat Buchanan, the Nixon speechwriter and Reagan loyalist, who challenged the first President Bush for the nomination of the GOP for President in 1992, and then ran as a Reform Party candidate for President twice, even having an effect on the Florida election results in 2000, has commented on the fact that some think Elena Kagan is a lesbian, and also that she is Jewish, which makes for three Jews on the Supreme Court, all appointed by Democratic Presidents! The fact that almost all previous Supreme Court Justices, except for about twenty, have been Protestants, apparently is not an issue to the Buchanans! πŸ™

Buchanan is not the only person in the Republican party to bring up the rumored homosexuality of Elena Kagan, and the Obama Administration has been actively criticizing the tactic!

But bringing up the fact Kagan is Jewish only smells of the old beliefs that Buchanan is anti Semitic, which has been part of the image that he has, because of his inappropriate comments!

But it is interesting that if one goes back to look at Democratic Presidents since John F. Kennedy, we find two appointments (Byron White who was Protestant and Arthur Goldberg who was Jewish) by JFK; two appointments by Lyndon B. Johnson (Abe Fortas who was Jewish and Thurgood Marshall who was African American); no appointments by Jimmy Carter, as no member of the Court left the bench during his term; two appointments by Bill Clinton (Ruth Bader Ginsberg who is Jewish and Stephen Breyer who is Jewish); and now two by Barack Obama (Sonia Sotomayor who is Latino and Elena Kagan who is Jewish)!

So when one examines Democratic appointments in the past half century, a total of eight, five were indeed Jewish, one African American, one Latino, and only the first one was a Protestant! This is certainly interesting information, but it should not be a plus or minus to judge Supreme Court nominees because of their religion or ethnicity!

But Bay Buchanan, Pat’s sister and a long term conservative activist, makes an even more ridiculous assertion about Elena Kagan! She declares that Kagan is totally unqualified simply because she has no direct judicial experience, despite the fact that many Supreme Court Justices never had judicial experience, but turned out to be superb members of the Court!

It is not that only Bay Buchanan has made Kagan seem to lack the experience and knowledge to be a Supreme Court Justice, but that she has, earlier in 2008 and ever since, claimed that former Alaska Governor Sarah Palin, the GOP VIce Presidential nominee, was superbly qualified and talented to be President ofr the United States!

That comment makes any neutral observer come to the conclusion that Bay Buchanan must be drinking, or smoking something illegal, or is totally certifiable for a mental hospital! πŸ™‚ LOL

Both Buchanans lose all legitimacy by their statements about Elena Kagan, who worked with two great judges–Abner Mikva of the Court of Appeals (1979-1994), and Supreme Court Justice Thurgood Marshall (1967-1991), who she clerked for! She is indeed a credit to both judicial giants and will be a star figure on the Supreme Court, once she overcomes the bias, prejudice, and pettiness being promoted by Republican opponents! πŸ™

The Effect Of New York City On The Supreme Court

With the nomination of Elena Kagan to the Supreme Court, that august body will now have, upon confirmation of Kagan, four members who spent their early years and much of their life in New York City, and ironically, in different boroughs of the city!

Antonin Scalia spent his formative years in Queens County; Ruth Bader Ginsberg in Brooklyn; Sonia Sotomayor in the Bronx; and Elena Kagan in Manhattan!

Also, the liberal bloc on the Court will consist of the three women and Justice Stephen Breyer, and that will mean the three Jewish members of the Court, along with its first Hispanic or Latino member, will be seen by the hinterland as out of touch with America. But realize the long range historical effect of New York City and State on American history, and one can understand why the city and state have had such an impact!

There has long been a tendency to favor New York for Justices, including, among others, Benjamin Cardozo, Felix Frankfurter, Charles Evans Hughes, and John Jay.

So the New York and Northeastern influence on the Court is an interesting reality, particularly at a time when the Tea Party Movement seems to be striking out against modern America, which is primarily influenced by that center of culture and commerce!

After all, even the terrorists see New York City as the center of America in ways that cannot be matched anywhere else in the nation!

The Tea Party Movement, The Republicans, And The Supreme Court

The Tea Party Movement is creating a true headache for the Republican party in regards to the nomination of Elena Kagan as a Supreme Court Justice by President Barack Obama.

Of course, it is well realized that a majority of Republicans in the Senate will vote against Kagan being confirmed. But many Republican senators are already admitting that Kagan is well qualified on paper. Senator Orrin Hatch of Utah and Senator Jon Kyl of Arizona made it clear that they did not see a filibuster beginning, and that while they may have problems with Kagan in some way, they do not intend to let the Tea Party activists control the party’s strategy about the nominee.

But the Tea Party is just demonstrating how extremely radical right wing they are, as they have made up their mind to defeat Kagan because Obama selected him!

They want a Supreme Court that could just as well be made up of robots who do not use their mind, but simply promote a view of the Constitution that does not allow for anything other than the exact words of the document. Empathy, life experiences, and judicial activism are not to be part of the process. Any assertion of federal government authority is to be denied. Checks and balances and separation of powers are to be obeyed, without explaining how to interpret that. No consideration of foreign law is to be allowed under any circumstances in deliberation of cases.

This view of the Supreme Court would paralyze the Court’s ability to do its job! To promote in the 21st century the concept that the federal government has no authority other than what was perceived in the 18th century, and to assert states rights, when that was settled by the Civil War 150 years ago, is pure insanity! To assert also that no new rights to protect those who have been discriminated against historically should be allowed, and by implication, the thought that blacks, women, and other minorities should never have gained the equality which the Supreme Court has had a major role in promoting, makes one shake his head at the loony nature of this backwards, reactionary movement!

It is becoming very obvious that the Republican Party has an albatross around its neck: The Tea Party Movement! The leadership of the GOP need to make up their mind! Are they to be a mainstream party that represents the broad base of the American population, or are they to go down as an extreme reactionary, right wing group that has no possibility of having power and dealing with real problems in the 21st century? πŸ™

Supreme Court Justices And Judicial Experience: Is It Required Or Preferred?

As Elena Kagan was nominated for the Supreme Court by President Obama yesterday, the debate began over the importance of a Supreme Court nominee having served as a judge before coming to the Court.

Every member of the present Supreme Court has been a Court of Appeals Judge, and one would think this was normal tradition and a requirement, neither of which thought is true in fact!

When one examines the history of the 111 Supreme Court Justices we have had to this moment, we discover a very different truth. Only 48 served as judges on the national or state levels. Three were Governors of their states (Earl Warren, Charles Evans Hughes, William Paterson). Seven have been Senators, including Hugo Black and Edward White. Seven have been Attorney General under a President. We have also seen other cabinet members–Secretary of State, Secretary of the Treasury, Secretary of the Interior, Secretary of Labor, Secretary pf the Navy, and even Postmaster General, chosen for the Supreme Court. Additionally, we have had a number of Solicitor Generals (the position Kagan holds), and Law School professors selected. But also interesting is many who are simply described as “Lawyers”!

The point is that many of the very best Supreme Court Justices have NOT been judges before coming to the high bench. This list includes John Marshall (Secretary of State), Joseph Story (Speaker of the Massachusetts House), Roger Taney (Lawyer), Edward White (Senator), Charles Evans Hughes (Governor), Louis Brandeis (Lawyer), William Howard Taft (President and Law School Professor), Harlan Fiske Stone (Attorney General), Hugo Black (Senator), William O. Douglas (SEC Chairman), Felix Frankfurter (Law School Professor), Frank Murphy (Attorney General), Robert H. Jackson (Attorney General), Tom Clark (Attorney General), Earl Warren (Governor), Arthur Goldberg (Secretary of Labor), and Thurgood Marshall (Solicitor General)!

When one analyzes this list, it is clear that it is not required or necessary that a Supreme Court nominee have had experience as a judge at any level. Worldly experience in other types of positions is important to promote diversity on the Court, beyond the issues of race, religion and gender!

Senator John Cornyn’s Complaint About Supreme Court Nominees

Republican Senator John Cornyn of Texas had a complaint today about the Supreme Court after the announcement of the nomination of Elena Kagan to replace John Paul Stevens on the high Court.

His complaint is that her background, and basically that of most Supreme Court nominees for a long time, has been one of having connections to Cambridge (Harvard University), Hyde Park (University of Chicago), and Washington, DC!

Actually, it should be said, to be technically correct, that some of the Supreme Court Justices come from New Haven (Yale University), and Justice Ruth Bader Ginsberg from NYC (Columbia University)! Also, a good number have had their life experiences affected by New York or California residence.

And so, the thought is, is this a problem? NO, as the facts are that our leading legal scholars and brilliant judicial minds come from the Boston-NYC-Washington DC megalopolis, as well as from Chicago and California! These ARE the leading academic and intellectual centers in the nation, whether people from the hinterland and the South want to accept it!

Do we really want people on the Supreme Court who come from second level law schools? Do we want “mediocre” members in their education and experiences involved in interpreting our Constitution?

Senator Cornyn sounds too much like former Republican Senator Roman Hruska of Nebraska, who tried to defend Florida judge G. Harold Carswell, appointed by President Richard Nixon to the Supreme Court. Carswell proved to be by far the most mediocre and incompetent Justice nominee in many years, and was defeated in the Senate, but not before Hruska admitted Carswell was mediocre, but declared that were not “mediocre” citizens entitled to representation on the Supreme Court? The answer is obviously NO!

We cannot afford anything other than the best of our country on the Supreme Court, and it is time to recognize where our intellectual and academic best are found in this nation! No one should feel cheated by us gaining the highest quality nominees, even if they are primarily from three locations geographically! We deserve nothing but the best!

The Changing Supreme Court: The Nomination Of Solicitor General Elena Kagan

With the announcement of Solicitor General Elena Kagan as the newest member of the Supreme Court, we will be learning a lot about this second appointment to the high Court by President Obama.

What sticks out right at the beginning is the following:

1. Kagan will be the third woman on the Supreme Court, the highest number ever! The others are Ruth Bader Ginsberg and Sonia Sotomayor.
2. Kagan will be the third Jewish Justice, the highest number ever! The others are Ruth Bader Ginsberg and Stephen Breyer.
3. Kagan will be the youngest member of the Court, and being only 50, could serve for thirty or more years.
4. Kagan’s appointment is the first since William Rehnquist, appointed by Richard Nixon, to have no judicial experience at all, although eight of the nine members of the Court at the time of the Brown V. Board of Education case of 1954 had never been judges. This could be the beginning of a trend toward picking Justices who have a wider experience than just being on the bench.
5. This appointment continues the trend toward having Supreme Court Justices who have been graduates of Harvard or Yale University Law Schools, with Ruth Bader Ginsberg being the only exception, as a graduate of Columbia University Law School.
6. This marks the first time in history that not even one Protestant Justice will sit on the Court, which now will have six Catholics and three Jews on the Court, along with two Italians, one African American, and one Latino. Overall, this is a very diverse Court, but who could have imagined fifty years ago that a Court which was noted for having an Irish Catholic Justice (William Brennan) as an unusual event, would now be consisting of groups that be called “minorities”!

There will be more commentary on this historic event as weeks go by, as this will be a headline story for at least the next two months!

The Debate Over The Supreme Court Nominee: Elena Kagan Most Likely Choice!

Even before Barack Obama chooses a Supreme Court nominee to replace Associate Justice John Paul Stevens, a furious debate is beginning over what should be the credentials of that individual.

One issue is whether we need religious balance, as when Stevens leaves, there will be no Protestant nominees, despite the fact that half the country is Protestant! In the past, the thought was that there should be a Jewish seat, a Catholic seat, an African American seat, and a woman’s seat. Now we have two Jews, six Catholics, one African American, two women, and even an Hispanic on the Court! So should the nominee be Protestant, as one of the leading candidates, Diane Wood, happens to be?

Then there is the issue of how liberal the nominee should be, as certainly the Supreme Court has become much more conservative over the years, and with a liberal President, one would assume he would choose a liberal nominee. If this is the major factor, then Diane Wood comes across as the most liberal nominee, more than Elena Kagan or Merrick Garland, the other two most mentioned!

Then, there is the issue of whether the nominee should be from outside the judiciary, with Elena Kagan being the one of the top three in speculation who has been a professor, Harvard Law School Dean, and now Solicitor General of the United States, the government’s lawyer before the Supreme Court!

Also, however, there are some who think what is needed is an elected political official, which has put Secretary of State Hillary Clinton, Governor Jennifer Granholm of Michigan, Senator Amy Klobuchar of Minnesota, and Senator Claire McCaskill of Missouri into the speculation! Notice all of these elected officials past or present are women!

So that brings up the idea that with two women on the Court, maybe it should be a man who is selected, but only Judge Merrick Garland is mentioned very much, and he would be regarded as more moderate than Kagan or Wood, at least by reputation!

So what it comes down to is that President Obama must decide what matters most to him. He has made it clear that he wants a person who can make coalitions with others on the Court, as Justice Stevens often did with Sandra Day O’Connor and Anthony Kennedy. That would seem to make Diane Wood or Elena Kagan the best choices! He also wants someone who would make decisions, taking into account the struggles of everyday ordinary Americans. Again, the indications are that Kagan or Wood would be the best choices in that regard!

My prediction is that he will select Elena Kagan, the Solicitor General, a Jewish woman who is liberal but not as controversial as Diane Wood, and who has already been voted upon by the Senate Judiciary Committee for her nomination to be Solicitor General, and who is a person who has not served as a judge, bringing some outside experience from her position now, and her years as a professor and Harvard Law School Dean.

Kagan’s nomination would cause fewer problems in the Senate, and put a woman not yet 50 on the Court, allowing for the possibility of a long term on the bench. She would be an excellent choice, and that is more important than having an elected official, or a Protestant or even a man! πŸ™‚