Special-edition round-up: Kagan nomination IV
The transcript of the president’s remarks at Elena Kagan’s nomination is now available here.
At the Volokh Conspiracy, Eugene Volokh reviews Kagan’s academic work on the First Amendment and administrative law in detail. This is perhaps the best such analysis of her scholarship conducted so far. Volokh concludes that although Kagan has fewer publications than might otherwise be expected, her interests also extend “to government service and to educational institution-building” as well as scholarship. Volokh characterizes the substance of Kagan's work as “excellent,” but he notes that the publications do not reveal much about her broader views, for example on cases involving the First Amendment.
Today’s latest long feature on Kagan, by Amy Goldstein and others at the Washington Post, reviews much of her life and career.
This afternoon and evening, the Associated Press was reporting on reactions to the nomination by key Senators. Senator Jeff Sessions, the ranking member of the Senate Judiciary Committee agreed today that a confirmation vote by early August is “doable,” and characterized Kagan's lack of judicial experience as a "weakness" rather than a disqualifier. Law360 provides an overview of Senators’ reactions from both sides of the aisle, concluding that Republicans seemed unwilling to “rush to judgment” in the nomination. Senator James Inhofe has decided to vote against Kagan for her lack of judicial experience and “interpretation of the Constitution.” The Ninth Justice reports that Republican Senator Jon Kyl is taking a second look at Kagan "“ he voted for her for Solicitor General and now reserves the right to oppose her for the Associate Justice position.
Another member of the Senate Judiciary Committee, Pennsylvania Democrat Arlen Specter, has also resolved to keep an “open mind” about Kagan despite his earlier vote against her nomination to be Solicitor General; Specter voted against her in March 2009, before he switched parties to become a Democrat. Mike Madden at Salon and Jonathan Strong at the Daily Caller suggest that Specter's change of heart is calculated to please constituents in his Democratic-leaning home state of Pennsylvania, where he faces a close primary challenger in November’s election. The WSJ Washington Wire blog notes that Rep. Joe Sestak, who is challenging Specter in his primary, has questioned the Senator's "fitness to evaluate Supreme Court nominees.
The Washington Post prints the transcript of a question-and-answer session with William Burck, former White House counsel, discussing possible objections that Republicans could raise against Kagan during her confirmation, including her elite law school background (she graduated from Harvard Law School, as did four current Justices) and her lack of judicial experience. Similarly, Stephanie Condon at a CBS News blog addresses four potential hurdles in a Kagan confirmation: again, her lack of experience as a judge; her views on military recruiting; her position on executive power; and her temporary work as part of an advisory council for Goldman Sachs. And Republican Senator Mitch McConnell questions whether Kagan could perform well without ever having been a judge in this video at the Washington Post. At ABC News, Ariane de Vogue describes Kagan’s now-familiar 1995 book review in which she argued that Supreme Court nominees ought to answer specific questions about their views on specific legal issues, predicting that Senators will cite it in requesting that Kagan (contrary to the practice of other recent nominees) provide detailed answers to their questions. Linda Feldmann at the Christian Science Monitor, on the other hand, foresees a “not too rocky” path to confirmation for Kagan.
The Blog of the Legal Times reports that some interest groups are aligning themselves against Kagan because of her views on gays in the military, which in their view are demonstrated by her continuation of a Harvard Law School policy banning military recruiters from campus because of the military’s exclusion of gays. At the Hill’s Briefing Room Blog, Russell Berman reports that the Republican National Committee used Kagan’s words praising the constitutional views of her former boss Justice Thurgood Marshall to criticize her own constitutional interpretation. At Talking Points Memo, Andrew Pincus describes the different themes that the Administration and its opponents are sounding out in their descriptions of Kagan. The Ninth Justice highlights President Obama’s comments during his nomination speech in opposition to the Court’s decision in Citizens United.
Other commentators are also ramping up efforts to extract Kagan’s views from her academic writings, but come to different conclusions. Marvin Ammori at Balkinization argues that Kagan would endorse corporate speech rights, despite the position she took in the case while serving as the government's advocate. Yet, writing for ACSblog, Rick Hasen enlarges upon his post last night arguing that Elena Kagan’s public words reveal little about how she would vote on election law issues, or in a case like Citizens United. Ilya Shapiro at Cato@Liberty defends Kagan against attacks on her lack of judicial experience, but detects a “certain hostility to the freedom of speech” in her scholarship and her service as Solicitor General.
Ashby Jones at the WSJ Law Blog attempts to glean Kagan's views on critical social issues by quoting from her speeches and writings. David Bernstein at the Volokh Conspiracy argues that, while Kagan may have treated scholars on the right sympathetically in her personal relations with them, it does not mean she has sympathy for their views. The National Review Online’s Bench Memos blog posts a statement by Doug Johnson of the National Right to Life expressing concern that Kagan is hostile to the anti-abortion movement.
The BLT reports that, in a press briefing this afternoon, Ron Klain "“ who serves as chief of staff to the Vice President and was a law school classmate of Kagan's "“ assured liberals that Kagan is “‘clearly a legal progressive’ whose ‘pragmatic perspective’ will be an important addition to the Court” (and rebutted concerns that she does not respect the military). The New York Daily News‘ Joshua Greenman predicted that Kagan is likely to turn out to be a “cautious, small-bore pragmatist "” not an activist left-leaning judge.”
At Slate, Dahlia Lithwick draws what she describes as perhaps the best inference from Kagan’s relatively slim record and understated views: that she “will approach the job of Supreme Court justice just as Obama would wish: open-minded, scrupulously fair, and always willing to concede error.”
At Balkinization, Jack Balkin recounts his prediction last year that the president would nominate someone who was a social liberal but who had worked in the executive branch and supported presidential power on war on terror issues. In his view, Kagan’s lack of judicial experience is not a serious detriment, as previous Justices without it have thrived in time.
The New York Times’ Room for Debate blog assembles short remarks on Kagan from scholars of diverse ideological views: Alan Dershowitz, Dick Thornburgh, Jamal Greene, Kathleen Sullivan, Robert Reich, and Eugene Volokh.
Tom Robbins at the Village Voice blog describes Kagan’s family as “Manhattan Upper Left Side”; her lawyer father defended tenants, her mother taught school, and her brother who expressed pro-union views.
USA Today’s Faith and Reason blog takes up the issue of Kagan’s Jewish heritage.
The answer to one question of judicial replacement settled, Carrie Johnson at NPR raises a new one: who will replace Kagan as Solicitor General?