Tuesday, May 11, 2010

Is Elena Kagan Going to the Bench?

Is Elena Kagan going to the Bench?  Who knows?  Supports of both answers have begun their own debate on this question.  It is fair to say that history suggest a Justice can be great without prior experience on the bench.  It is also true that judge experience can be helpful.

What is also true is that the work of a judge is not the same has that of a surgeon as has been suggested by some.  The surgeon must attend to his/her patient - right now - in real time so to speak.  The Justices of the U S Supreme Court (and lower courts for that matter) by design, have ample time to ruminate over facts presented in oral arguments as well as the legal briefs associated with a given case.  The stellar work of law clerks certainly aids the process as well.  This deliberative process seems to more than adequately accommodate the great legal minds of the day as well as the experienced jurists. 

So, is Elena Kagan a good choice?  Reasonable minds can disagree.  However, it seems the combination of a bright legal scholar and a deliberative process is a good combination.

Fired Up - Ready to WIN!
From: Melinda Kurtzo [mailto:melinda.kurtzo@jacksonville.com]

Sent: Tuesday, May 11, 2010 1:10 PM
Subject: Re: ELENA KAGAN

Good afternoon. We’ve only run a couple of locally reported stories about her that are archived on our site. Here’s one:


We have run a couple of wire stories, but we don’t have the permissions to archive them on our site.

Here is one from Monday: http://news.yahoo.com/s/ap/20100510/ap_on_go_su_co/us_supreme_court_kagan

I am going to copy and paste the one that ran today for you, because it is a compilation of multiple news sources, and I don’t know if I’ll be able to find it online for you...

Supreme Court pick has a history of trailblazing

HER HISTORY Known as practical and analytical, Elena Kagan has strong credentials.

WHAT'S AHEAD Her lack of judicial experience is bound to be one of GOP's targets.

From news services

PubDate: Tuesday, 5/11/2010

WASHINGTON - Just after Election Day the fall of her senior year at Princeton, Elena Kagan published an opinion piece in the campus newspaper, recounting how she had wept and gotten drunk on vodka at a campaign gathering for a liberal Brooklyn congresswoman who had unexpectedly lost a race for the Senate.

Rep. Elizabeth Holtzman - a champion for women's causes for whom Kagan had toiled 14-hour days as a campaign press assistant - was leaving Capitol Hill. Kagan, then 20 and imbued with the liberal principles on which she had been raised, said she was flirting with despair that "there was no longer any place for the ideals we held. ... I wonder how all this could possibly have happened and where on earth I'll be able to get a job next year."

Her piece for the Daily Princetonian on Holtzman's 1980 defeat was a rare moment - then and since - in which Kagan publicly described her emotions and politics in such strikingly personal tones.

In her worlds of academia and government, Kagan has more typically exhibited a penetrating analytical style, a knack for forging consensus, and pragmatism rather than passion for her own ideas.

Her life experiences and intellectual style leave open the question of whether President Obama's choice for the Supreme Court would, if confirmed by the Senate, prove the counterweight liberals seek to the overt conservatism of Chief Justice John Roberts Jr. and Justices Antonin Scalia and Samuel Alito Jr.

"She's much more of a lawyer than a partisan," said Geoffrey R. Stone, a University of Chicago Law School professor who was dean when Kagan was hired there. "She is more interested as a scholar in thinking through hard issues, rather than advocating particular ideological or political perspectives."

Seventeen cases already are arrayed on the Supreme Court docket for the term that starts in October. The docket eventually will grow to 75 cases or more. The court will be taking on mandatory minimum sentences, childhood vaccine damages, the sale of violent video games, employer retaliation, free speech and more.

"Three hundred million Americans will be affected by this nomination," said Sen. Patrick Leahy, D-Vt., the chairman of the Senate Judiciary Committee.

The Obama administration sees Kagan's job, in part, as swaying Justice Anthony Kennedy, a frequent swing vote. Nonetheless, it's not necessarily easy to predict where Kagan may end up on any one case.

'Loyal opposition' building

Certainly, the 50-year-old Kagan has proved that she can cut deals, soothe tensions and handle pressure. During her 2003-09 tenure as the Harvard Law School dean, she oversaw a $180 million budget, a roster of famously big egos and the hiring of 32 professors, some of them notably conservative.

"Elena is respected and admired not just for her intellect and record of achievement but also for her temperament, her openness to a broad array of viewpoints," President Barack Obama said Monday.

Kagan has a certain kind of paper trail. She's written legal briefs; at one point, in support of the potty-mouthed rap group 2 Live Crew's album "As Nasty As They Wanna Be." She's written memos, including some for the late Justice Thurgood Marshall that she's since distanced herself from.

"You know, I was a 27-year-old pipsqueak and I was clerking for a 90-year-old giant in the law," Kagan told the Senate Judiciary Committee last year.

But the paper trail doesn't extend to any judicial rulings. If confirmed, Kagan would be the first Supreme Court justice since Lewis Powell and William Rehnquist in 1972 to lack judicial experience. Republicans have already made it clear that they'll hammer on this. One GOP senator, James Inhofe of Oklahoma, already has decided to oppose her nomination.

"The fact that she is not a judge is not disqualifying," but coupled with her inexperience as a courtroom litigator, it "does present a weakness," said Sen. Jeff Sessions of Alabama, the top Judiciary Committee Republican.

He said a vote to confirm by early August - which Obama wants - is "doable," but that Republicans would not be rushed and were preparing to provide "the loyal opposition" in the upcoming debate.
Still, barring extraordinary circumstances, Kagan should win Senate confirmation on the strength of Democrats' numerical advantage. Democrats control the chamber with 59 votes, one short of what they would need to forestall the possibility of a partisan filibuster.

A history of ambition

Born in April 1960, Elena Kagan was the middle child and only daughter of Robert Kagan and Gloria Gittelman Kagan. Her parents, neither of whom is still alive, were children of Eastern European immigrants. Until they moved to the Upper West Side of New York when she was a teenager, a relative said, Kagan shared a bedroom with her two brothers.

The family belonged to Lincoln Square Synagogue. In a male-dominated religious culture of Orthodox Judaism, Kagan became one of the first girls to be bat mitzvahed. Her maternal grandfather in Philadelphia, who was devoutly Orthodox, convinced the synagogue's rabbi that girls deserved the opportunity, according to the relative.

When she entered Princeton in the fall of 1977, the school had been admitting women less than a decade and still most of its undergraduates were male. Kagan was 17, younger than most of the freshmen because she had graduated from high school early.
At the Daily Princetonian, she ran for the editorship but lost the vote. The winning classmate let her choose whatever other editor's job she wanted. She asked to be the head of the three-person editorial-writing team.

"I remember her as somebody who was always able to state an opinion in a sort of forceful, cogent, evidence-based way," classmate Steven Bernstein recalled.

After a year at Oxford on a fellowship, she entered Harvard Law School, where she made the Law Review and graduated magna cum laude in 1986.

After clerking in Washington, D.C., and working for a law firm, she entered academia. first at the University of Chicago, then back to Harvard.

A former Chicago colleague said, "She really is a thinker. She is not married and she doesn't have family in her life. Her books are, in many ways, her companions. She has a lot of friends. But she's lived alone, and the world of books and ideas is her world."

Looking at the issues

Kagan is accustomed to dealing with strong-willed colleagues, which could prove useful considering the Supreme Court's membership and its coming agenda. Here is a look at some of the key issues:

'Don't ask, don't tell': Conservatives have said the most controversial issue in her past was her belief that the military's "don't ask, don't tell" policy meant Harvard Law School would be violating its anti-discrimination policy if it helped the military recruit on campus.

Abortion: As a White House adviser in 1997, Kagan urged then-President Bill Clinton to support a ban on late-term abortions except when the physical health of the mother was at risk.

Gun control: After District of Columbia v. Heller, Kagan said, "There is no question that the Second Amendment guarantees individuals the right to keep and bear arms and that this right, like others in the Constitution, provides strong although not unlimited protection against governmental regulation."

Due process: During her confirmation hearing, Kagan agreed with Republican senators that the country was at war and said she did not believe detainees held in Afghanistan had the right to due process, as the Supreme Court has ruled for those at Guantanamo Bay.

Same-sex marriage: Noting that as solicitor general Kagan would be charged with defending the 1996 marriage law, Sen. John Cornyn, R-Texas, asked in a written question to Kagan whether she believes in a constitutional right to same-sex marriage. "There is no federal constitutional right to same-sex marriage," she responded.

This report contains material from The Associated Press, The Washington Post and McClatchy Newspapers.

I did a quick read through and didn’t see anything about the ACLU, but I could have missed it. They are pretty lengthy pieces. I hope this helps you out. Please let me know if there is anything else I can do for you.



Melinda Kurtzo
The Florida Times-Union
Online Community Content Coordinator


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