Justice Breyer to retire

Harambe wrote:

carmine9 wrote:

You are a man of little honor to make such a comment.

But the bet is on. I will not lose.

Notorious ban evader "The Unkle" claims to have honor.

How many screen names have you been through at this point?

Pot calling the kettle black here...

zvxcxzcv wrote:

I haven't looked more into her background, but the frontrunner Ketanji Brown Jackson is extremely qualified, 9 years on the D.C. Circuit Court of Appeals, Harvard University undergraduate, Harvard Law. Biden's making use of a demographic whose talents have never before been recognized on the court and accordingly whose interests have hardly been considered.

She hasn't even been on the DC Circuit for 9 months, much less 9 years.

Ran many times in the Plainfield, NH Turkey Trot

https://www.wmur.com/article/supreme-court-justice-stephen-breyer-plainfield-nh/38904386

"According to Taylor, for years Justice Breyer ran in the Thanksgiving Day Turkey Trot in town, although he doesn't expect to see him do that again."

coach wrote:

carmine9 wrote:

Far more qualified than Elena Kagan.

And after recent comments on Covid, Sotomayor too

Of course you find Kagan unqualified.

Completely.

Glenn G lays it out

Kagan's lack of a record

One

of the difficulties in assessing Kagan's judicial philosophy and view

of the Constitution is that direct evidence is extremely sparse.

That's not only because she's never been a judge, but also because

(a) her academic career is surprisingly and disturbingly devoid of

writings or speeches on most key legal and Constitutional

controversies, and (b) she has spent the last year as Obama's Solicitor

General, where (like any lawyer) she was obligated to defend the

administration's policies regardless of whether she agreed with them.

As Goldstein wrote at SCOTUSblog: "it seems entirely possible that

Elena Kagan does not really have a fixed and uniform view of how to

judge and to interpret the Constitution."

As I've

previously documented and examine further below, the evidence that is

available strongly suggests that a Kagan-for-Stevens substitution would

move the Court to the Right in critical areas. But Kagan's lack of a

real record on these vital questions, by itself, should cause

progressives to oppose her nomination. That's true for two reasons:

First,

given that there are so many excellent candidates who have a long,

clear commitment to a progressive judicial philosophy, why would Obama

possibly select someone who -- at best -- is a huge question mark, and who could easily end up as the Democrats' version of the Bush-41-appointed David Souter, i.e., someone about whom little is known and ends up for decades

embracing a judicial philosophy that is the exact opposite of the one

the President's party supports? As Goldstein wrote of Kagan:

Are there risks for the left in a Kagan nomination? God yes. The last nominee about whose views we knew so little was David Souter.

. . . I don't know anyone who has had a conversation with her in which

she expressed a personal conviction on a question of constitutional law

in the past decade.

Why would any

progressive possibly want to take risks like that given how large the

stakes are, and given how many other excellent, viable candidates Obama

can choose who have a long and clear record?

This was exactly the argument which conservatives such as David Frum made

to force George Bush to withdraw Harriet Miers as his replacement for

Sandra Day O'Connor and instead choose Sam Alito. As Frum put it on

PBS during the fight over Miers:

Stakes

are so enormous in this seat. This is something, as Bill Kristol said,

the conservatives have worked for, for a long time. . . . I mean she

has been a lawyer for more than three decades. In that time she has never found it necessary to express herself on any of the great issues of the day. . . Part of what isn't good enough is for the president to say -- although

there are lots of conservatives of incredible distinction who have

written and published, where the world can know what they think -- "I

have a secret, I know something and nobody else does. And I'm going to

go with my personal knowledge."

Republicans have

been disappointed with that kind of knowledge often before, and

although they trust and support this president, he is asking too much.

[It's

ironic that the anti-Miers case was grounded in conservatives' refusal

to place too much faith and trust in their President's judgment. Can

anyone envision Democrats mounting a serious and sustained campaign

against Obama's Supreme Court nominee of the type mounted against Bush

by conservatives, whom progressives like to accuse of blind

leader/party loyalty?]

Frum's anti-Miers argument

prevailed, and conservatives got what they wanted: Sam Alito, someone

with a long record of advocacy for their judicial philosophy who they

knew would be the kind of Justice they wanted for decades to come.

Part of the conservative case against Miers (i.e., that she

lacked intellectual heft) is plainly inapplicable to the unquestionably

intelligent Kagan, but the bulk of it is directly applicable: why

should progressives who care about the Supreme Court possibly accept

someone whose judicial and Constitutional philosophy can barely be

discerned?

When it came time to replace David Souter,

Sonia Sotomayor was far from the ideal nominee for many progressives,

yet virtually all supported her nomination (as did I, vigorously)

because it was clear that she would be essentially the same kind of

Justice as Souter, and would thus maintain the Court's balance. By

contrast, conservatives rightly perceived that replacing O'Connor was a

once-in-a-generation opportunity to shape the Court to their beliefs

about judicial philosophy, and they thus refused to accept a nominee

about whom so little was known.

Under the circumstances

that prevail now, why would progressives possibly demand any

less? After all, Obama is now replacing the Justice who has become the

leader of the "liberal" wing of the Supreme Court (accepting the dubious premise that there is even is such a thing as a "liberal" wing). As Scott Lemieux notes, this is the seat which, since 1916, has been held by only three

Justices, three of the great progressives Justices in history -- Louis

Brandeis, William O. Douglas, and Stevens. Given that, why wouldn't

progressives insist on a nominee whom they know will

approach legal questions at least as progressively as Stevens did --

or, dare to dream, have a nominee be more progressive than the Justice

being replaced, something that hasn't happened literally in

decades? Acquiescing to a Kagan nomination would mean accepting

someone who could easily move well to the Right of Stevens, thus taking

the whole Supreme Court with her.

Second,

I believe Kagan's absolute silence over the past decade on the most

intense Constitutional controversies speaks very poorly of her. Many

progressives argued (and I certainly agree) that the Bush/Cheney

governing template was not merely wrong, but a grave threat to our

political system and the rule of law. It's not hyperbole to say that

it spawned a profound Constitutional crisis.

Recognizing

the severity of this radicalism, numerous legal academicians used their

platforms -- and created new ones -- to protest vocally and

relentlessly. Former OLC official and Georgetown Law Professor Marty

Lederman blogged on a virtually daily basis about the extremism and lawlessness of Bush's policies. Former Acting OLC Chief and Indiana University Law Professor Dawn Johnsen wrote article after article decrying the lawlessness and demanding greater public outrage. Georgetown Law Professor Neal Katyal -- Kagan's not-at-all-progressive Deputy Solicitor General -- was so appalled by Bush/Cheney extremism that he spent a huge number of hours working pro bono representing Osama bin Laden's driver all the way to the U.S. Supreme Court,

where he succeeded in having Bush's military commissions declared

illegal and the Geneva Conventions held applicable to all detainees --

in a decision written by Justice Stevens (and, like Johnsen and Lederman, Katyal has a long record of written analysis on a whole litany of key legal controversies, including vehement opposition to many aspects of the Bush/Cheney assault).

Where

was Elena Kagan during all of this? Why is it seemingly impossible to

find even a single utterance from her during the last decade regarding

the radical theories of executive power the Bush administration invoked

to commit grave crimes and other abuses? It's possible that she said

something at some point, but many hours of research (and public inquiries) have revealed nothing -- other than when she endorsed the core Bush template during her Solicitor General confirmation hearing. As Adam Liptak put it in The New York Times when she was nominated last year for Solicitor General: "she

has provided few clues about where she stands on the great legal issues

of the day, notably the Bush administration's broad assertions of

unilateral executive power in areas like detention, surveillance,

interrogation and rendition." The Boston Globe similarly pointed out that she "has had little to say

about the legal and political issues related to presidential power that

have emerged as a result of Bush's efforts to combat terrorism."

Given

the severity of the crisis posed by Bush/Cheney lawlessness, what

justifies someone with Kagan's platform -- Dean of Harvard Law School

and former Clinton White House lawyer -- remaining utterly silent in

the face of that assault? Even if one believes that a Law School Dean

should generally be attentive to institution-building, didn't the

severity of the legal crisis spawned by Bush and Cheney merit serious

opposition from those in a position to voice it? Before any

progressive considers supporting her nomination to the Court, shouldn't

they be able to point to some evidence, somewhere, that she opposed the

core claims used to prop up the Bush/Cheney assault on the Constitution

and the rule of law?

* * * * *

The sparse record of Kagan's views

Beyond

the disturbing risks posed by Kagan's strange silence on most key legal

questions, there are serious red flags raised by what little there is

to examine in her record. I've written twice before about that record

-- here (last paragraph) and here -- and won't repeat those points. Among the most disturbing aspects is her testimony during her Solicitor General confirmation hearing, where she agreed wholeheartedly with Lindsey Graham

about the rightness of the core Bush/Cheney Terrorism

template: namely, that the entire world is a "battlefield," that "war"

is the proper legal framework for analyzing all matters relating to

Terrorism, and the Government can therefore indefinitely detain anyone

captured on that "battlefield" (i.e., anywhere in the world without geographical limits) who is accused (but not proven) to be an "enemy combatant."

Those

views, along with her steadfast work as Solicitor General defending the

Bush/Cheney approach to executive power, have caused even the farthest

Right elements -- from Bill Kristol to former Bush OLC lawyer Ed Whelan -- to praise her rather lavishly. Contrast all of that with Justice Stevens' unbroken record of opposing Bush's sweeping claims of executive power every chance he got, at times even more vigorously than the rest of the Court's "liberal wing," and the risks of a Kagan nomination are self-evident.

The only other real glimpse into Kagan's judicial philosophy and views of executive power came in a June, 2001 Harvard Law Review article

(.pdf), in which she defended Bill Clinton's then-unprecedented attempt

to control administrative agencies by expanding a variety of tools of

presidential power that were originally created by the Reagan

administration (some of which Kagan helped build while working in

the Clinton White House), all as a means of overcoming a GOP-controlled

Congress. This view that it is the President rather than Congress with

primary control over administrative agencies became known, before it

was distorted by the Bush era, as the theory of the "unitary

executive." I don't want to over-simplify this issue or draw too much

importance from it; what Kagan was defending back then was many

universes away from what Bush/Cheney ended up doing, and her defense of

Clinton's theories of administrative power was nuanced, complex and

explicitly cognizant of the Constitutional questions they might raise.

Still,

the questions she was addressing were the crux of the debate back then

over the proper limits of executive authority, and the view she

advocated was clearly one that advocated far more executive power than

had been previously accepted. Kagan's 2001 law review article is what

led to this from The Boston Globe when Kagan was nominated for Solicitor General:

"She is certainly a fan of presidential power,"

said William F. West, a professor who specializes in federal

administration at the Bush School of Government and Public Service at

Texas A&M.

Similarly -- and very

revealingly -- even the moderate Neal Katyal, now Kagan's Deputy,

emphatically criticized Kagan's theories in that law review article as

executive overreach and even linked them to the Bush/Cheney executive

power seizures. Katyal wrote in a June, 2006 article in The Yale Law Journal (.pdf; emphasis added):

Such claims of executive power are not limited to the current administration,

nor are they limited to politicians. Take, for example, Dean Elena

Kagan's rich celebration of presidential administration. Kagan,

herself a former political appointee, lauded the President's ability to

trump bureaucracy. Anticipating the claims of the current administration, Kagan argued

that the President's ability to overrule bureaucrats "energize[s]

regulatory policy" because only "the President has the ability to

effect comprehensive, coherent change in administrative policymaking" .

. . .

Assaulted by political forces, the modern agency is a

stew of presidential loyalists and relatively powerless career

officials. To this political assault comes an academic one as well,

with luminaries such as Elena Kagan celebrating presidential administration an unitary executivists explaining why such theories are part of our constitutional design. This vision may work in eras of divided government, but it fails to control power the rest of the time.

As

Katyal noted, Kagan relied upon the warning from Alexander Hamilton

about a "feeble executive" that was beloved by Bush/Cheney legal

theorists, and she hailed "strong, executive vigor." On the legal

spectrum, Kagan clearly sits on the end of strong assertions of

executive authority -- perhaps on the far end, almost certainly much

further than where Stevens falls. It's perhaps unsurprising that a

President -- such as Barack Obama -- would want someone on

the Supreme Court who is quite deferential to executive authority. But

given that so many of the most important legal and Constitutional

disputes center on the proper limits of executive power (including ones

that remain to be decided from the Bush era), and that Kagan and her

rulings will likely long outlast an Obama presidency (i.e., any

pro-executive-power decisions she issues will apply to future George

Bushes and Dick Cheneys), shouldn't these pro-executive-power views, by

themselves, prompt serious reservations (if not outright opposition)

among progressives?

Kagan's record on social issues

will likely be perfectly satisfactory, even pleasing, to most

progressives. She is, by all appearances, solidly pro-choice and in

favor of gay equality. But even on domestic issues, serious questions

have been raised about how progressive her views actually are, as

exemplified by this New York Times profile from Eric Lichtblau last year examining Kagan's prospects as a Supreme Court nominee:

"I

want a Brennan or a Marshall, someone clearly on the liberal side,"

said Michael Ratner, president of the Center for Constitutional Rights,

referring to liberal court icons William J. Brennan and Thurgood

Marshall.

"I don't think Kagan is at that end of the liberal spectrum,"

said Mr. Ratner, whose nonprofit legal group has helped lead the push

for greater legal protections for prisoners at Guantánamo Bay. "Why

they would put someone in who might not be a liberal anchor for the

court is really bothersome, and I don't see Kagan playing that role" .

. . ..

Ms. Kagan first gained high-level notice as an aide

in the Clinton White House, first as an associate counsel and then as

deputy director of the Domestic Policy Council, working on issues like

tobacco regulation, welfare reform, education, hate crimes and

affirmative action.

"There were some important issues on which Elena took centrist or even center-right positions,

but it was never clear whether she was pressing her own views or merely

carrying water for her boss on the Domestic Policy Council, Bruce

Reed," said Christopher Edley Jr., who worked with Ms. Kagan at the

White House and is now dean of the law school at the University of

California, Berkeley.

And even on the

issues where she has been impressive -- such as her refusal to allow

military recruiters to recruit at Harvard Law School due to their

anti-gay discrimination -- her record is ultimately rather muddled.

After preening around for years

justifying her ban on military recruiters by decrying the military's

ban on gays as "a profound wrong -- a moral injustice of the first

order," she quickly reversed that policy

and allowed military recruiters onto campus after the Federal

Government threatened to withhold several hundred million dollars in

funds to Harvard (out of a $60 billion endowment). One can reasonably

argue that her obligation as Dean was to secure that funding for the

school, but one can also reasonably question what it says about a

person's character when they are willing to flamboyantly fight against

"profound wrongs" and "moral injustices of the first order" -- only as

long as there is no cost involved.

What makes the

prospect of a Kagan nomination so disappointing is that there are so

many superior alternatives -- from the moderately liberal and brilliant

7th Circuit Judge Diane Wood and former Georgia Supreme Court Chief Justice Leah Ward Sears

to the genuinely liberal Harold Koh (former Yale Law School Dean and

current State Department counselor) and Stanford Law

Professor Pam Karlan. If progressives aren't willing to fight Obama

for the Supreme Court, what are they willing to fight him for?

* * * * *

Most of the research presented here was done by Daniel Novack,

a second-year law student at NYU School of Law. Novack, who works with

me on many posts I write, also contributed several substantive points.

Glenn Greenwald

Glenn Greenwald doesnt like her. Therefore Kagan wasn't qualified. I see.

coach wrote:

Glenn Greenwald doesnt like her. Therefore Kagan wasn't qualified. I see.

That's your take away?

Come on Coach.

You can do better than that

• Her lack of judicial experience and an extensive body of legal writings. In recent years, Supreme Court nominees have tended to be federal judges, which meant that they usually had written many legal opinions for public scrutiny. Kagan is a departure from this trend, and her legal writings are relatively minimal.

• Her hiring record at Harvard. Some liberals have criticized Kagan for not hiring many minorities and women while she was dean at Harvard. Conservatives too have attacked her hiring record; they say Kagan has received more credit than she deserved for hiring and working with conservative law professors. She did hire mostly co-religionists

Would be nice to have the first supreme court justice with east Asian heritage, join the court

You must have been upset with Comey Barrett's nomination given her lack of experience as a federal judge.

Regarding Kagan some progressives thought she wasn't progressive enough and some conservatives thought she wasn't conservative enough. This is the type of independent thinking a judge should have.

Remember the time George W. Bush nominated his personal lawyer? LOL!

Of course, the Colonizers maintain their grip of oppression on the United States with no talk of a Native American Justice. Commentary from Laurance Tribe doesn't count. Why aren't people seeing Red with all the talk about Black, White, and Brown, and with Yellow on the Group W bench.

Her lack of judicial experience and an extensive body of legal writings. In recent years, Supreme Court nominees have tended to be federal judges, which meant that they usually had written many legal opinions for public scrutiny. Kagan is a departure from this trend, and her legal writings are relatively minimal.

The Ghost of Randy Savage wrote:

Ugghhh. Mitch McConnell's staff is likely drafting a statement that states SCOTUS nominees cannot be considered during a midterm election year and that it should wait until the new Congress is seated in January 2023.

It's even better this time. The Judiciary Committee is now 11 Dems and 11 Republicans because Schumer made a backroom deal with McConnell. McDonnell is a master at exploiting the short sighted stupidity of liberals.

Republicans can block any nomination until November when they take back the senate.

carmine9 wrote:

Her lack of judicial experience and an extensive body of legal writings. In recent years, Supreme Court nominees have tended to be federal judges, which meant that they usually had written many legal opinions for public scrutiny. Kagan is a departure from this trend, and her legal writings are relatively minimal.

This doesn't make her unqualified. It's been said in this thread already, but there are at least 100 judges who are qualified for the position. Kagan was one of them and they picked her. Attacks on any supreme court judge's qualifications are silly. They are all well qualified for their positions.

hunter wheres the coke wrote:

carmine9 wrote:

Her lack of judicial experience and an extensive body of legal writings. In recent years, Supreme Court nominees have tended to be federal judges, which meant that they usually had written many legal opinions for public scrutiny. Kagan is a departure from this trend, and her legal writings are relatively minimal.

This doesn't make her unqualified. It's been said in this thread already, but there are at least 100 judges who are qualified for the position. Kagan was one of them and they picked her. Attacks on any supreme court judge's qualifications are silly. They are all well qualified for their positions.

Kagan had zero experience as a judge, a trial lawyer, She was a fund raiser. No way she had any qualifications

Clown World Resident wrote:

Supreme Court Watcher wrote:

Can you possibly imagine how quickly and massively Fox News and the right wing would dispense their collective colons immediately if Biden appointed Michelle Obama?

Rightly so as Michelle Obama isn't qualified to do anything let alone serve on the Court.

Given she is a lawyer, she actually does have the minimum qualifications, but it would be a strange choice.

carmine9 wrote:

hunter wheres the coke wrote:

This doesn't make her unqualified. It's been said in this thread already, but there are at least 100 judges who are qualified for the position. Kagan was one of them and they picked her. Attacks on any supreme court judge's qualifications are silly. They are all well qualified for their positions.

Kagan had zero experience as a judge, a trial lawyer, She was a fund raiser. No way she had any qualifications

The only qualification to being a Supreme Court justice is the ability to understand and rule on interpretations of the law at the highest level. Kagan can do that and is therefore qualified.