The Kagan Wars

A healthy honest to goodness substantive debate has erupted over the nomination of Elena Kagan. For once, the debate of the moment is between what I would call Left progressives and Center progressives. (The Republicans are likely to oppose any Obama nominee en masse, so they are irrrelevant to the substance of the debate, but perhaps not to the process (more on that later.))

For the first time in a long time, I watched Keith Olbermann's Countdown and Rachel Maddow's show to watch the debate. Olbermann had Jonathan Turley on (not my favorite, but he was interesting last night) and Ezra Klein on the politics of the nomination (Ezra was pretty good too.) Maddow had the more interesting segment, with Glenn Greenwald and Larry Lessig. Here is the Maddow segment:

More . . .

I think Glenn has some legitimate grievances about Lessig's mischaracterizations of Glenn's argument on Kagan's views on preventive detention. That said, I think Kagan has some legitimate grievances about Glenn's characterizations of Kagan's position on preventive detention. I have written on the issue. And here is my beef with Glenn's characterizations. Glenn said:

[Greenwald], Democracy Now, April 13: "[Kagan] expressed very robust defenses of executive power, including the power of the president to indefinitely detain anybody around the world as an enemy combatant, based on the Bush-Cheney theory that the entire world is a battlefield and the US is waging a worldwide war."

(Emphasis supplied.) This gives short shrift to what Kagan actually agreed to. From Kagan's SG confirmation hearing:

GRAHAM: [. . .] Under law of armed conflict, as I understand it, under the Geneva Convention, Article V says, if there's a dispute about status, what you're entitled to is an independent, neutral decision maker. And in most wars, that can be a battlefield determination by a single officer. But because this is a war [. . .] that will not end [. . .] with a ceremony on the USS Missouri, there will be no defined end, I am all for giving more due process.

But the point [Sen. Feinstein is] making I think is an important point. You cannot detain somebody indefinitely under criminal law. They have to have a trial. But under military law, if you're part of the enemy force, there is no requirement to let them go and go back to the war and kill your own troops. Do you agree that makes sense?

KAGAN: I think it makes sense. And I think that you're correct that that is the law.

GRAHAM: So America needs to get ready for this proposition that some people are going to be detained as enemy combatants, not criminals. And there will be a process to determine whether or not they should be let go, based on the view that we're at war, and it would be foolish to release somebody from captivity that's a committed warrior to our nation's destruction.

Now, the point we have to make with the world, would you agree, Dean Kagan, is that the determination that led to the fact that you're an enemy combatant has to be transparent?

KAGAN: It does, indeed.

GRAHAM: It has to have substantial due process.

KAGAN: It does, indeed.

GRAHAM: And it should have an independent judiciary involved in making that decision beyond the executive branch. Do you agree with that?

KAGAN: Absolutely.

GRAHAM: So we can go tell the world that this person is being held off the battlefield, not because one person says so, but because there's a process that led to that determination where you have an independent judiciary involved. Do you think that's important for the nation to make sure we have that kind of process?

KAGAN: I do, Senator.

(Emphasis supplied.) Glenn simply does not acknowledge that Kagan has accepted a view of enemy combatant detention that requires transparency, due process, judicial review and compliance with the Geneva Conventions. This is a disagreement of longstanding have had with Glenn. See, e.g, my post Preventive Detention and Prisoners of War.

That said, Lessig "flatly misstates the case" of Kagan's views on this issue, pretending that Kagan was not stating her views but rather stating what the law is. This is nonsense. But, as I have argued, Kagan's view is not only defensible, it is right.

Similarly I think very highly of Kagan's article on the unitary Executive and find Greenwald's criticisms of it wrongheaded and unconvincing. Indeed, it is my view that Kagan's 2001 Harvard Law Review article is the most compelling evidence of her brilliance and progressive bonafides.

On the Countdown program, Professor Turley discussed Kagan's writings on the First Amendment and expressed concern about the views expressed therein. I have not read them and need to.

But, based on what I have read of Kagan's writings, nothing I have seen is in any way disqualfying. But I have not seen enough. Kagan's public views are simply too sparse to make a considered judgment. We need to hear more from Kagan, on the record.

That is why my main focus has been on holding Kagan to the "Kagan Standard," based on the views she expressed in a 1995 article:

The Senate confirmation hearings for the Supreme Court have become "a vapid and hollow charade," [Kagan, then] a Chicago law professor complained, because the nominees are not forced to say what they think about disputed issues such as abortion, affirmative action and privacy.

It is "an embarrassment," she said, that "senators today do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues." Justice Clarence Thomas won confirmation, she said, even "after his substantive testimony had become a national laughingstock."

Kagan was right in 1995. That is why the position her group is now taking is simply unacceptable:

The White House Monday said that Supreme Court nominee won’t follow her own advice from 1995 in answering questions on specific legal cases or issues, supporting Kagan’s flip flop on the issue that she first made a year ago.

[. . . D]uring a briefing with reporters in the White House, Ron Klain, a top legal adviser to Vice President Joe Biden who played a key role in helping President Obama choose Kagan, said that she no longer holds this opinion. [. . .] “She was asked about it and said that both the passage of time and her perspective as a nominee had given her a new appreciation and respect for the difficulty of being a nominee, and the need to answer questions carefully,” Klain said, prompting laughter from a few reporters.

It is laughable. And unacceptable. I hope the Republicans make a stink about it. I have no hope that Dems will.

Speaking for me only

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    No hope (5.00 / 3) (#1)
    by jbindc on Tue May 11, 2010 at 08:48:18 AM EST
    Sorry BTD - this will be th. Same dog and pony show as every other nomination.  The minority will stomp their feet and make noise; the majority will say how good the pick is and how unreasonable and obstructionist the minority is being.  The nominee won't really enlighten us as to her thoughts, the administration will call her one of the best picks, the nominee will win confirmation and will ride off into obscurity, only to be mentioned again as the world breathlessly waits to see how she votes in her first case - probably one that involves zoning laws or something.

    The script is the same no matter the players.

    Now don't get me wrong (none / 0) (#82)
    by Socraticsilence on Tue May 11, 2010 at 04:54:10 PM EST
    I don't think rejcting Bork was incorrect, but didn't it basically end the substantive questioning of SC nominees? (Thomas was questioned on matters more purient than legal).  

    Kagan stepping away from her 1995 (5.00 / 1) (#2)
    by MO Blue on Tue May 11, 2010 at 09:25:29 AM EST
    position, while predictable, makes her more of a cipher IMO. This is the second time that she has strongly backed away from previously stated positions. During her confirmation for Solicitor General Kagan called a memorandum that she wrote as a law clerk to Justice Thurgood Marshall "the dumbest thing I ever read." Supporters have cited positions as far back as the '80s to indicate that she would be leftward leaning justice saying that she would not change her positions now. Yet, as indicated, more than one of her opinions have evolved to the point where she completely reversed them.  IMO we have no idea what her positions are today.

    But, but, but (5.00 / 1) (#4)
    by Cream City on Tue May 11, 2010 at 09:45:54 AM EST
    she's from some New York Jewish neighborhood! so I hear here, so all is well.

    I guess there are no conservative (none / 0) (#36)
    by MO Blue on Tue May 11, 2010 at 11:30:07 AM EST
    or moderate Jewish people in New York. Not one person  who is Jewish and raised in New York has the same world view as say Joe Lieberman. That is incredible.

    Oh please (5.00 / 1) (#39)
    by andgarden on Tue May 11, 2010 at 11:51:09 AM EST
    If there were the whole argument, it would be pretty silly. As it happens, it's NOT.

    Gee (none / 0) (#93)
    by BackFromOhio on Tue May 11, 2010 at 07:39:02 PM EST
    ya think?

    The idea that Kagan's opinions (5.00 / 2) (#35)
    by Peter G on Tue May 11, 2010 at 11:27:45 AM EST
    as a college student newspaper editor in 1980 or so -- or anyone else's opinions, expressed 30 years ago while in college -- provide telling insights into her present politics, social views, or legal opinions is pretty silly, imho.

    OK Peter, where do you draw the line? (none / 0) (#41)
    by andgarden on Tue May 11, 2010 at 11:53:05 AM EST
    Things she wrote 10 years ago? 15? 20?

    I'm perfectly willing to set aside old writings if the balance of the other information we have undercuts them. But that's simply not the case here.


    How about drawing a line, (none / 0) (#83)
    by Peter G on Tue May 11, 2010 at 05:02:34 PM EST
    not a bright one perhaps, but a sort of a line, at things that someone wrote since graduating from law school, when we are asking what sort of judge that person might make?  I was the editor of my college newspaper, too; in my case, that was 40 years ago.  I would like to think I could still be proud of that work, and perhaps I would be if I took the time to plow through it.  But really, is it terribly revealing about who I am today, and whether you would appoint me to federal office?  Or hire me to handle your family member's criminal appeal?  Does my college journalism even reveal my present political orientation?  Maybe it does, and maybe it doesn't.  Not reliably, I can tell you that.  

    My basic philosophy (none / 0) (#92)
    by andgarden on Tue May 11, 2010 at 07:28:17 PM EST
    is that I will generally not discount anything you wrote after you turned 18 unless you've disavowed it (explicitly or constructively). I think the things Kagan wrote in college still have some meaning. I don't have any good reasons to think otherwise.

    I think it 's a lot easier for those (none / 0) (#99)
    by Anne on Tue May 11, 2010 at 09:55:24 PM EST
    of us who measure the years between college and now in decades to appreciate the evolution in who we are than it is for those who haven't yet put even a decade between college and now.

    I don't mean that as an age-ist comment, and certainly don't mean to disparage the opinions of the younger people among us - just reflecting on who I was in 1975 and who and where I am today.


    Yes, but those opinions stand (none / 0) (#63)
    by Cream City on Tue May 11, 2010 at 02:03:52 PM EST
    unless she has stated or written otherwise since.

    As I respect your comments here, I am curious as to why you consider her a "first-rate legal scholar" -- as my understanding is that she has published very little.

    Quality over quantity, sure -- but a first-rate scholar in any field has a substantial as well as substantive record of accomplishment. And sure, she has published more than Obama did, and he also was called a legal scholar, but really now.  How low is the bar setting the bar these days for first-rate scholars?  I don't understand how this measure must differ in law, I guess.  Is a judge a first-rate judge based on as few opinions?


    Hmmm... (5.00 / 1) (#66)
    by squeaky on Tue May 11, 2010 at 02:20:28 PM EST
    Does one need volumes of material to be considered a first rate scholar? In most fields, quality is the barometer not quantity, unless you are accumulating money...

    Someone linked to Volokh the other day, he went through her writings and analyzed them with the conclusion that her scholarship was top notch.

    Of course the linker was denigrating both Volokh and Kagan...


    That is, of course, my question (none / 0) (#77)
    by Cream City on Tue May 11, 2010 at 04:18:38 PM EST
    above.  It seems clear, from reviews of others, that her writings are of high quality.  So can we focus on my question, which you only reiterate?  

    Four articles of high quality would more often merit, say, "promising scholar" -- sufficient for tenure -- but not yet "first-rate scholar," as the latter would suggest a record of achievement of far more than four articles.  That is, even I know hundreds of scholars who have published that much -- including many award-winning scholars who write about the law, if not in law schools -- who are not yet considered "first-rate legal scholars," without a sufficient record yet.

    So I am asking, I guess, if in law schools the term "first-rate" has come to be based entirely on quality, without any consideration of sustained output over time to establish a record of achievement?  So one or two incredibly good articles put a scholar at the top of the field now?  If so, that seems to be a change, and it would be good for me to know, as applicants with law degrees as well as Ph.D.'s do apply for jobs in my field, so we may have to revisit our expectations for hiring such folks, if all of their (few) publications have been in law journals.  


    In fact I think it is true that someone (5.00 / 1) (#84)
    by Peter G on Tue May 11, 2010 at 05:29:42 PM EST
    can gain a reputation as a first rate legal scholar on a record of a small number (even one) of truly outstanding, highly original articles.  Charles Reich comes to mind, who wrote a landmark article in 1964 or so called "The New Property." (He later wrote the pop best seller The Greening of America.) The "New Property" article is all anyone would have to publish to make a career.  Same with Anthony Amsterdam, as a legal scholar (putting aside his anti-death penalty litigation, culminating in Furman v. Georgia (1972), which invalidated every then-extent capital sentence.) - His articles "Perspectives on the Fourth Amendment" (1974) and "Crimes of Displeasing Police Officers" (a little earlier, I think) would make a scholarly reputation that anyone would envy.  Or Thomas I. Emerson's "The System of Freedom of Expression."  (Again putting aside that he came up with the theory for, and with the great Harriet Pilpel (of Planned Parenthood and the ACLU) wrote the briefs and then successfully argued, Griswold v. Connecticut, which established the right to privacy in matters of reproduction and personal autonomy.)  I am not suggesting that General Kagan is in that class; I haven't read her stuff.  Just answering your question, CC.

    Thank you -- that is interesting (none / 0) (#86)
    by Cream City on Tue May 11, 2010 at 05:57:04 PM EST
    so I suspect that the measure (and in this, there is some similarity in other fields) would be the impact -- the number of times an article is cited by other scholars as well as in lawyers' briefs, say?  I can see the sense of that . . . and am reminded of, for example, Frederick Jackson Turner's career, as he just could not manage to finish many promised books -- but even today, his early article is still read, debated, refuted, disputed, etc., i.e., still central to U.S. history.

    (Of course, it is said that Prof. Turner's limited publication record would not put him in consideration for hiring away by Harvard today, as he was then, and that he certainly would not make full professor even at the U of Wisconsin.:-)


    My sense is that (none / 0) (#94)
    by BackFromOhio on Tue May 11, 2010 at 07:46:34 PM EST
    the term "first-rate legal scholar" is not being used in a standardized way, but rather as a term to try to characterize Kagan and create an aura of impenetrability as against those who would attack her right to sit on the Supreme Court.  

    Remember when Sotomayor was accused of not having substantial "intellectual heft" (or some such thing)?  Summa cum laude from Princeton, where laude of any level is hard to come by, but lacking intellectual heft?  Attempt by some to diminish her accomplishments.

    Cream - I think you're right to the extent, in effect, you are suggesting that these terms be used in a systematic way, but I don't think that is the case.  


    I think you're correct (5.00 / 1) (#103)
    by Cream City on Wed May 12, 2010 at 06:14:20 AM EST
    and yes, I guess that I am attempting to make a distinction between a "first-rate legal scholar" -- with a substantial as well as substantive record to support that term -- vs. a "first-rate legal mind," which could be based on a limited list of scholarly writings or, say, on a record established by a non-scholar.

    Some might say, for example, that BTD has a fine legal mind.  That would not make him a scholar. :-)


    Great post, BTD (5.00 / 1) (#3)
    by gyrfalcon on Tue May 11, 2010 at 09:44:40 AM EST
    These are the key points, and you've cut through all the noise and summed them up with clarity.

    The question is (5.00 / 1) (#8)
    by MO Blue on Tue May 11, 2010 at 09:55:45 AM EST
    Does Kagan still hold the same opinions as stated in her 2001 Harvard Law Review article or has she reversed her position once again? Wish we could get a definite answer to this prior to her confirmation.  Doubt her confirmation hearings will enlighten us or even if she reverses her opinions, it will stop her confirmation.  

    One problem: that's not what Glenn said (5.00 / 0) (#11)
    by Anne on Tue May 11, 2010 at 10:10:51 AM EST
    on the Democracy, Now program Lessig cited.

    From Glenn's post today:

    Worse, compare what I actually said in that April 13 Democracy Now appearance that he cited to what Lessig claimed I said there:

    LESSIG, last night:  "In his piece on Democracy Now on April 13, [Glenn] said that in that article, [Kagan] talked about the power of the President to indefinitely detain anyone around the world."

    ME, Democracy Now, April 13:  "And what little there is to see comes from her confirmation hearing as Solicitor General and a law review article she wrote in 2001, in which she expressed very robust defenses of executive power, including the power of the president to indefinitely detain anybody around the world as an enemy combatant, based on the Bush-Cheney theory that the entire world is a battlefield and the US is waging a worldwide war."

    When describing her views on executive authority and detention power, I explicity cited two sources of information to know Kagan's views:  (1) her 2001 law review article (which did indeed advocacte robust executive authority) and (2) "her confirmation hearing as Solicitor General" (which is where she described her views on detention powers, advocating exactly the view I attributed to her).  To claim, as Lessig did, that I "said that in that article, [Kagan] talked about  the power of the President to indefinitely detain anyone around the world" is blatantly false.  She did that at her confirmation hearing, not in her 2001 article.  If Lessig misread what I said in that one interview, that'd be one thing, but he claimed last night that I've "repeatedly asserted" it.  

    Also of interest: Miguel Estrada endorsed Kagan for the Court today.


    Miguel Estrada (5.00 / 1) (#97)
    by Peter G on Tue May 11, 2010 at 08:52:24 PM EST
    is personally highly conservative.  But he is also incredibly honest and fair-minded, as well as intellectually stellar.  (He even co-writes and signs amicus curiae briefs in selected Supreme Court cases on behalf of the National Association of Criminal Defense Lawyers.)  And one of the handful of best appellate lawyers I've ever seen or worked with (which is what I do full time).

    The biggest worry (5.00 / 2) (#13)
    by Emma on Tue May 11, 2010 at 10:18:34 AM EST
    The biggest concern for me is this:

    In government and academia, she has shown a special capacity to bring together people with deeply held, conflicting views.  On a closely divided Supreme Court, that is an especially important skill.

    We've seen what an emphasis on bringing people together has wrought in the current political climate -- ever more rightward shifts.  If the allegations about hiring at HLS have any merit, I would venture that the hiring pattern is a function of the focus on conciliation rather than racism or sexism.

    I'd be happier with a nominee who was described as determined to change the political climate, rather than adapt herself to it to "accomplish stuff".

    And see yesterday's discussion of (5.00 / 1) (#16)
    by oculus on Tue May 11, 2010 at 10:35:10 AM EST
    her views in Clinton admin. on late-term abortion.

    I saw (5.00 / 2) (#20)
    by Emma on Tue May 11, 2010 at 10:43:08 AM EST
    the discussion.  I'm not sure it revealed anything about Kagan's views on late-term abortion, per se, as much as her views on political bargaining.

    Elana Kagan is praised for ability (none / 0) (#23)
    by oculus on Tue May 11, 2010 at 10:46:51 AM EST
    to get consensus--with the hope she will be able to do the same on SCOTUS vis a vis Justice Kennedy.

    I really (none / 0) (#25)
    by Emma on Tue May 11, 2010 at 10:47:55 AM EST
    don't get what this has to do with the late-term abortion statute and her advice to Pres. Clinton.

    Guess I am seeing something there (5.00 / 1) (#30)
    by oculus on Tue May 11, 2010 at 11:00:24 AM EST
    you don't.  If she were a firm freedom of choice advocate, would she advise the President, for political reasons, to favor a ban?

    You Obviously Did Not Read The Article (none / 0) (#33)
    by squeaky on Tue May 11, 2010 at 11:20:57 AM EST
    Going by quotes, provided by those intending to denigrate Kagan, are not reliable.

    Well (none / 0) (#48)
    by Emma on Tue May 11, 2010 at 12:30:35 PM EST
    my impression was that it was the lesser of two evils argument -- with which any Democrat should be familiar.

    Did I mention I am a purist on a woman's (5.00 / 1) (#56)
    by oculus on Tue May 11, 2010 at 01:13:37 PM EST
    right to choose?

    Well (none / 0) (#57)
    by squeaky on Tue May 11, 2010 at 01:19:31 PM EST
    There is no indication that Kagan does not share your view. If had to bet, I would bet that Kagan is 100% choice.

    OK (none / 0) (#58)
    by Emma on Tue May 11, 2010 at 01:25:06 PM EST
    What advice would you have given Clinton and what do you think the results of following your advice would have been?

    My advice: Roe v. Wade is the law (5.00 / 1) (#60)
    by oculus on Tue May 11, 2010 at 01:27:32 PM EST
    of the land.  Stand by it.  Of course, I would never have gotten the job.  Too doctrinaire.

    OK (none / 0) (#62)
    by Emma on Tue May 11, 2010 at 01:34:55 PM EST
    That's fine.  What do you think the result would have been of following your advice?

    Were I the one who had given (none / 0) (#64)
    by Cream City on Tue May 11, 2010 at 02:09:25 PM EST
    that advice, I suspect that I would have witnessed the president rejecting that advice, in the face of political realities.

    So I would have had my resume ready to resign -- as any practitioner in any advocacy field has to be ready to do, if they put their principles first.


    Yes (none / 0) (#65)
    by Emma on Tue May 11, 2010 at 02:17:52 PM EST
    but that's not the question.  The question is, what would have been the result of following your advice?

    Ah. Well, I'd have to say (none / 0) (#67)
    by Cream City on Tue May 11, 2010 at 02:22:24 PM EST
    that the end result would have not won sufficient support, so Roe v. Wade would have been diminished again -- as it was, anyway.  

    So the end result would have been just as bad for women's reproductive rights, but at least the woman who had the power to attempt to do the right thing would have done so.


    The same or worse? (5.00 / 1) (#70)
    by Emma on Tue May 11, 2010 at 02:31:52 PM EST
    So the end result would have been just as bad for women's reproductive rights,

    I think Kagan's point was that the end result would have been worse, not the same.  Sure, if the result is going to be the same, one can do anything one wants.  If the outcome is going to be worse, that seems to be a harder choice.


    It already was and is worse (none / 0) (#71)
    by Cream City on Tue May 11, 2010 at 02:36:26 PM EST
    in so many states.  So I don't think that it would have made much difference, frankly, where women really live.  We do not have a federal standard, so debate that pretends that we do is not very useful -- and perhaps a courageous administration would push the point that on women's reproductive rights, we have returned to states' rights.

    The Vetoed Bill (none / 0) (#73)
    by squeaky on Tue May 11, 2010 at 03:04:40 PM EST
    Clinton said he did not support this kind of late-term abortion on an elective basis but that women could face situations that required it. The ban contains an exemption to save the life of the mother, but Clinton repeated his previous pleas for an exception for women whose health is seriously threatened.

    ``I understand the desire to eliminate the use of a procedure that appears inhumane,'' he said. ``But to eliminate it without taking into consideration the rare and tragic circumstances in which its use may be necessary would be even more inhumane.'' He also said the measure was unconstitutional.



    Principals (none / 0) (#69)
    by squeaky on Tue May 11, 2010 at 02:28:58 PM EST
    What if your principal is never to do anything that would limit a woman's right to choose?

    The reasoning was that by adopting Daschle's compromise, it would diffuse a situation that would wind up drastically limiting a woman's right to choose. Clinton's veto, had the GOP majority not been thrown a bone, so to speak, would have more than likely overridden the veto.

    Smart politics by Kagan, and hate to say it Rahm..


    Huh? Not an education issue. (5.00 / 1) (#74)
    by Cream City on Tue May 11, 2010 at 03:06:30 PM EST
    Sorry CreamCIty (none / 0) (#75)
    by squeaky on Tue May 11, 2010 at 03:19:39 PM EST
    I do not understand your comment. Perhaps I have missed something here.

    It's a grammarian's idea of a joke. (none / 0) (#76)
    by oculus on Tue May 11, 2010 at 03:33:36 PM EST
    Ah. Actually, it wasn't intended (none / 0) (#78)
    by Cream City on Tue May 11, 2010 at 04:21:52 PM EST
    as a joke; I really thought it was a comment in the wrong place or something.  Now I see the error in the commenter's ways that led to my lack of comprehension as to how the comment applied here.

    But yes, I have been grading a lot lately, at this point in the year, and that includes grading grammar, so it may be affecting my worldview.:-)  


    Were you commenting on Squeaky's tendency (none / 0) (#85)
    by Peter G on Tue May 11, 2010 at 05:41:19 PM EST
    to misspell "principle" as "principal"?  (The link is to one of my favorite websites, "Common Errors in English" by Prof. Paul Brians, retired from Washington State Univ.  I use the site all the time to check myself.)

    Evidentially. (5.00 / 1) (#87)
    by oculus on Tue May 11, 2010 at 06:01:32 PM EST
    Well (none / 0) (#89)
    by squeaky on Tue May 11, 2010 at 06:17:19 PM EST
    Evidentially, there is no sign of evidently in the confusing word list that Peter G provided a link for..  

    Everyone is entitled to his or her own (none / 0) (#90)
    by Peter G on Tue May 11, 2010 at 06:26:03 PM EST
    unshakable errors, even if Prof. Brians doesn't rate them as "common."  I certainly have mine.

    Oh (none / 0) (#88)
    by squeaky on Tue May 11, 2010 at 06:02:02 PM EST
    Thanks Peter, I am a terrible speller and depend entirely on spellcheck, which is an automatic part of my browser. Principal and Principle both pass the spell test...  I will have to remember..

    Sorry for misunderstanding (none / 0) (#91)
    by Cream City on Tue May 11, 2010 at 06:56:25 PM EST
    and I know, I know -- I have to teach to not rely on spellcheck, as it so often only helps my students correctly spell the wrong word.  But it's still the wrong word.  Points off!

    However, when wading through this grueling time of grading, I suppose I do have spellcheck to thank for some of the amusing moments.  One of my faves was a term paper about 1950s reform efforts aimed at juvenile delinquency.  In the first paragraph, the student meant the term "juvenile morals" but used "juvenile morays."

    Envisioning a conservative movement to curb baby eels kept me in good humor through the rest of the grading that looooooong night.


    LOL (5.00 / 1) (#100)
    by squeaky on Tue May 11, 2010 at 10:55:26 PM EST
    Exactly (none / 0) (#59)
    by squeaky on Tue May 11, 2010 at 01:27:05 PM EST
    This comment by digby (none / 0) (#24)
    by MO Blue on Tue May 11, 2010 at 10:47:52 AM EST
    reflects my opinion.

    The thing I'm hearing the most is that she and Obama are very much alike and that they have a strong personal relationship. So, if you like Obama's worldview and governing style, you'll like Kagan. I would expect a lot of split-the-baby opinions --- and we'd best keep our hopes up that Anthony Kennedy is a lot easier to charm than the Republican congress has been. link

    That is my fear (none / 0) (#26)
    by Emma on Tue May 11, 2010 at 10:49:36 AM EST
    But we won't know until she's a Justice, regardless of whether or not we find out what her political/judicial views are during the hearings.  

    Well (none / 0) (#28)
    by squeaky on Tue May 11, 2010 at 10:53:41 AM EST
    I disagree, because a SC judge does not have to pander, Obama on the other hand....  

    When you're (5.00 / 1) (#49)
    by Emma on Tue May 11, 2010 at 12:32:38 PM EST
    on the SCt, it's not called pandering.  It's called getting enough votes for an opinion.

    Exactly (none / 0) (#51)
    by andgarden on Tue May 11, 2010 at 12:39:19 PM EST
    According to one Harvard law professor, (none / 0) (#27)
    by KeysDan on Tue May 11, 2010 at 10:51:35 AM EST
    who spoke on condition of anonymity (NYT article of today) did not see Dean Kagan so much as a consensus-builder as a coalition-builder. "Elena would count the votes and say, this crowd (of faculty) will vote for X and I want X, so that will be two-thirds and we'll make it happen, the unnamed professor said. "It was not that she won over people after they suddenly saw the wisdom of what she wanted."  Ezra Klein, last night on MSNBC, also noted the fatuousness of an argument that the SC newcomer will be able, by influence, to win over the middling and irresolute Justice Kennedy. However, coalition-building is more realistic on the SC in that in relies more on a mathematical ability to count votes.

    Consensus Building? (none / 0) (#29)
    by mmc9431 on Tue May 11, 2010 at 10:58:26 AM EST
    I would think that by the time you got to the level of SC Justice, you would have complete confidence in your opinions. I really wonder how much swaying is possible?

    But what if you have spent your (5.00 / 3) (#32)
    by Anne on Tue May 11, 2010 at 11:14:20 AM EST
    entire career (apparently) purposely keeping your opinions to yourself?  Does that represent a lack of courage, or a lack of conviction, or - possibly - both?

    Seems to work (5.00 / 1) (#38)
    by mmc9431 on Tue May 11, 2010 at 11:37:58 AM EST
    It got Obama the WH! It will probably get Kagan the SC. Advice to future aspiring politician. Never have an opinion. (At least one you can't run from).

    And, (none / 0) (#40)
    by KeysDan on Tue May 11, 2010 at 11:52:05 AM EST
    never write any thing down.  Just be the "best little boy or girl in the world", and keep your head down, thereafter.

    True. Although Ms. Kagan (none / 0) (#44)
    by oculus on Tue May 11, 2010 at 12:09:25 PM EST
    purportedly told high school classmates her goal was to be on SCOTUS.  

    If, true that does give us some (none / 0) (#54)
    by MO Blue on Tue May 11, 2010 at 12:48:22 PM EST
    information about Ms. Kagan. She is goal orientated and extremely good at long term planning.

    Quite a bit. Cite: "The Brethren." (none / 0) (#31)
    by oculus on Tue May 11, 2010 at 11:02:17 AM EST
    The consensus builder in "The Brethren" (5.00 / 1) (#42)
    by MKS on Tue May 11, 2010 at 12:00:24 PM EST
    was Brennan.  Appointed by Eisenhower and dazzlingly brilliant....Not sure anyone is going to be like him....The times are different and judges have been raised with over political ideologies--especailly those on the right....There is less opportunity to persuade...

    Brennan said that most important rule to keep in mind at the Supreme Court was the "rule of five," as in it takes five votes to issue an opinion....

     Just put a liberal bomb thrower on the Court.  Karlan and Koh.....


    Think back to (none / 0) (#95)
    by BackFromOhio on Tue May 11, 2010 at 07:57:28 PM EST
    Chief Justice Earl Warren who built a "consensus" of unanimity on Brown v. Board of Education; actually held up the vote until he got backing of all the justices; he felt (I understand) that the case represented too important an issue for the nation to have the Court divided to any degree on the decision.  Those were the days....

    Brilliant arse smoocher (5.00 / 1) (#47)
    by MKS on Tue May 11, 2010 at 12:21:25 PM EST
    Is that what we are getting?

    And we coulda had Harold Koh....What a great legal talent.  What tremendous defense of liberal values....I can't imagine Koh caring two figs about being unpopular or getting intimidated by Scalia...

    We have no (5.00 / 1) (#50)
    by Emma on Tue May 11, 2010 at 12:35:52 PM EST
    evidence that Kagan does give two figs about being unpopular or will be intimidated by Scalia.

    Though, what you get if you put somebody who can't be "collegial" on the Court is somebody who can't influence anything b/c he/she is always writing dissenting opinions.


    What can one conclude from Kagan's (5.00 / 2) (#55)
    by Anne on Tue May 11, 2010 at 01:11:43 PM EST
    circumspection, being so close-mouthed that even the people who know her best and have worked with her over the years, have almost no idea what she thinks about anything?

    Is it a fear of not being liked, or is it a fear of not being liked by the people who have the power to derail her career for speaking (or writing) her mind?  And how obsessive is that fear if it meant she couldn't apparently bring herself to open up to anyone, whether they would ever be involved in making decisions about her success or failure?

    Is her passion the law, or is it personal achievement?  And if it's the latter, what does that mean about the kind of Justice she would be?  

    I find it disturbing, really, that she seems to lack both courage and conviction, and that, after so many years of being so tight-lipped, she may not know how to stand up for her opinions.  

    It isn't enough that someone knows how to form a consensus in an academic or administrative venue; in the venue that is the Supreme Court, and on matters of law, it very much matters on what basis a consensus is undertaken, and the legal ramifications of whatever consensus one is lobbying for.


    I dunno (5.00 / 1) (#68)
    by Emma on Tue May 11, 2010 at 02:27:10 PM EST
    I'm not into psychoanalysis.  And we don't know that she hasn't opened up to anyone, she just hasn't opened up to anyone who's talked to the press.  So, maybe it means she inspires great loyalty in those to whom she does confide.

    I don't know that she lacks either courage or conviction, either.  Let's suppose, so long as we are supposing, that she is a lesbian.  What kind of courage and conviction does it take to pursue a SCt seat given the long history of oppression of and discrimination against women and lesbians?  Or even just the deanship of HLS?  Seems like her conviction in herself and her abilities in those circumstances would be remarkable.  And her courage in pursuing a high-profile public career would also be pretty remarkable.

    I do fully agree with this:

    It isn't enough that someone knows how to form a consensus...it very much matters on what basis a consensus is undertaken, and the legal ramifications of whatever consensus one is lobbying for.

    but, again, I have no barometer against which to measure Kagan -- unless we're going to continue playing "let's suppose".  

    If that's the case, I'm perfectly happy to suppose that she's a lesbian who possessed enough courage and conviction in herself and her abilities to cannily pursue the high-profile job she wanted despite the long odds against her.  And that along the way, she's managed to inspire such loyalty in those closest to her that they have decided against running their mouths for their 15 minutes of fame.

    Now that's a fun game!


    I hope you are right... (none / 0) (#52)
    by MKS on Tue May 11, 2010 at 12:40:43 PM EST
    It just seems to me that the leading (Democratic) candidates for the Supreme Court are becoming more and more like politicians....like  Arlen Specter....calibrating what is the politic thing to do....

    To me (5.00 / 1) (#53)
    by Emma on Tue May 11, 2010 at 12:45:24 PM EST
    It comes down to whether they will be willing to push left, even if incrementally, or settle for rightward drift in their politicking -- whether it takes place on the Court or off the Court.  I have no barometer by which to measure Kagan.

    Tsk. Such language. (none / 0) (#79)
    by Cream City on Tue May 11, 2010 at 04:22:52 PM EST
    The polite, short term for that is "dean." :-)

    Interesting (none / 0) (#5)
    by lilburro on Tue May 11, 2010 at 09:49:51 AM EST
    NYT editorial:

    As Mr. Obama's solicitor general, she has supported his administration's positions, little changed since the Bush administration, on the use of military force against Al Qaeda, the habeas corpus rights of military detainees and the state secrets privilege. (In 2005, however, she did oppose a Republican attempt to remove judicial review from the cases of detainees at Guantánamo Bay, Cuba.)

    If she is willing to do the job as it stands, how uncomfortable is she with the policy?  It's an indicator as accurate as her background or what she wrote in the 90s/80s.

    And per Oculus' post (none / 0) (#6)
    by Cream City on Tue May 11, 2010 at 09:54:09 AM EST
    I would like Kagan to be asked whether, in her current post, she aligns with the Obama administration's apparent willingness to pull back on Miranda.  She can answer questions as to her current post and positions in it, one hopes.

    Nope (none / 0) (#9)
    by jbindc on Tue May 11, 2010 at 10:02:26 AM EST
    That would be a potential challenge before a future SC.  No WAY she answers a question about that!

    I would ask her about Dickerson (none / 0) (#14)
    by Big Tent Democrat on Tue May 11, 2010 at 10:23:39 AM EST
    what about John Deans comment on (none / 0) (#15)
    by Capt Howdy on Tue May 11, 2010 at 10:32:23 AM EST
    Olby last night that she could be pushed to answer some questions based on her position as SG not her future position as Justice.

    good plan?


    Not in my view (5.00 / 1) (#18)
    by Big Tent Democrat on Tue May 11, 2010 at 10:41:54 AM EST
    Advocates advocate.

    Judges decide.

    What an advocate argues has little to do with what they believe the law should be imo.



    I must be learning (none / 0) (#22)
    by Capt Howdy on Tue May 11, 2010 at 10:45:34 AM EST
    something by hanging out here, I thought the same thing.

    Less true of the Solicitor General of the U.S. (none / 0) (#37)
    by Peter G on Tue May 11, 2010 at 11:32:37 AM EST
    than of any other lawyer, I would say, but still basically true.  Except when fulfilling her duty to defend the constitutionality, if possible, of Congressional enactments, the SG is at the level of legal policymaker and has no real "client" other than the interests of the United States -- as determined, in the end, by the President, the Attorney General, and herself.

    President Obama praises Ms. Kagan (none / 0) (#43)
    by oculus on Tue May 11, 2010 at 12:07:04 PM EST
    for deciding to argue "Citizens United" herself.

    My guess (none / 0) (#17)
    by jbindc on Tue May 11, 2010 at 10:40:19 AM EST
    Is it would be a fine line and to be prudent, she would weasel around an answer.  But I think there could be a way of asking about what's been argued and decided.

    Do you agrree with (5.00 / 1) (#19)
    by Big Tent Democrat on Tue May 11, 2010 at 10:42:34 AM EST
    Chief Justice Rehnquist opinion in Dickerson that . . .

    How do you duck that?


    She cites Holder and Axelrod? Issue (none / 0) (#21)
    by oculus on Tue May 11, 2010 at 10:45:23 AM EST
    very likely to come before the court.

    Well (none / 0) (#34)
    by jbindc on Tue May 11, 2010 at 11:24:44 AM EST
    That is a yes or no answer, as right mow Axelrod just put out a trial balloon to the changing of Miranda.  No movement had been made on the issue that we ate aware of, but since Rehnquist said Miranda is settled law and he was following decades of stare decisis, her answer is "yes".  She can always put a caveat that should Congress somehow bizzarrely try to codify something different , and it cones before the Court, she would look at those facts at that time.

    If she says she doesn't agree with his holding, well, that's another can of worms....


    So much for my hope that, (none / 0) (#7)
    by Anne on Tue May 11, 2010 at 09:54:12 AM EST
    realizing she was more or less a shoo-in for confirmation, Kagan would finally open up and give us some insight into the way she thinks; I guess I was right that someone who has spent her entire career keeping her opinions a big secret would not suddenly, in the glare of the spotlight and in front of a full Senate gallery and with millions more watching at home, peel back the curtain and let people see the real Elena Kagan.

    In light of the "I've changed my mind" response to that 1995 article, I think my response would be, "so, I guess there's no point in assuming we can place any stock in views you expressed in the `80's or in the few writings of yours that exist that date back quite a few years; should we also conclude that you have changed your mind about those?  And if you are not willing to tell us either way, why on earth should we conclude that you are qualified for a lifetime seat on the Supreme Court?"

    I think I am most disappointed in a White House that promised transparency, and which is now drawing a protective veil of secrecy around Kagan; if they think she's the best possible nominee, why are they so afraid to let her speak?  It's hard to see any courage here and even more difficult to find any convictions.  Why shouldn't we all know what she thinks and where she stands?  

    I have a feeling this is not going to go well, and maybe, given this pre-emptive position that will prevent the Judiciary Committee from doing its job, and the American people from knowing where Kagan stands, it shouldn't.

    I watched the Maddow show (5.00 / 1) (#45)
    by MKS on Tue May 11, 2010 at 12:14:51 PM EST
    last night, and came away thinking that Greewald had it all wrong and Lessig was the more rational of the two, and Glenn was awash in hyperbole....

    But Glenn's column today (thanks for the link) really shows Lessig was very wrong in his characterization of Glenn's arguments...

    David Brooks has a column today making the point that Kagan has been a pleaser of those in authority for a long time, studiously avoiding taking any positions that could harm her career, or really taking any positions at all.

    If Lessig is who we need to rely on to vouche for Kagan, that was not a good start...

    I was always luke warm about Kagan, thought she would be okay when her nomination was announced, but I am not liking what I am learning--or not learning--about her....


    Meh (5.00 / 1) (#46)
    by Big Tent Democrat on Tue May 11, 2010 at 12:16:17 PM EST
    Lessig came across as a cheerleader to me.

    Greenwald was hyperbolic though imo.


    I share your fears (5.00 / 1) (#96)
    by BackFromOhio on Tue May 11, 2010 at 08:02:24 PM EST
    but I think the no answer answers will rule the day and Kagan will get the nod the same way Roberts did even though he refused to produce specific memos he wrote.  

    Re her reading of the First Amendment (none / 0) (#10)
    by Cream City on Tue May 11, 2010 at 10:07:21 AM EST
    I hope that you do find time, BTD, as I would find interesting that discussion here -- grateful as I am again for a "law blog."  Too much of what I am reading in mainstream media on Kagan is just pap.

    No win situation (none / 0) (#12)
    by mmc9431 on Tue May 11, 2010 at 10:17:21 AM EST
    I don't blame her for not answering the questions. Why should she? None of the others on the bench were held to that standard. It can only hurt her.

    Her mistake was in pointing out that the hearings are worthless. She needs to address that in an honest way. She can claim she was young and naive then and believed in the honesty of man. 15 years in DC has shown her the light!

    The other option is she could be like Thomas or Roberts and just flat out lie.

    Or both. (none / 0) (#61)
    by oldpro on Tue May 11, 2010 at 01:34:43 PM EST
    As I said yesterday in another thread...

    "What could she possibly say to duck her own issue?  "I've changed my mind!?!"

    Well, I suppose."

    Looks like that kite will fly just fine!


    Sully says (none / 0) (#72)
    by Capt Howdy on Tue May 11, 2010 at 02:38:40 PM EST
    "just ask"

    I have to say in the tradition of a stopped clock this argument makes some sense to me.  maybe I am just tired.

    ... and no one will ask directly if this is true and no one in the administration will tell us definitively.

    In a word, this is preposterous - a function of liberal cowardice and conservative discomfort. It should mean nothing either way. Since the issue of this tiny minority - and the right of the huge majority to determine its rights and equality - is a live issue for the court in the next generation, and since it would be bizarre to argue that a Justice's sexual orientation will not in some way affect his or her judgment of the issue, it is only logical that this question should be clarified. It's especially true with respect to Obama. He has, after all, told us that one of his criteria for a Supreme Court Justice is knowing what it feels like to be on the wrong side of legal discrimination. Well: does he view Kagan's possible life-experience as a gay woman relevant to this? Did Obama even ask about it? Are we ever going to know one way or the other? Does she have a spouse? Is this spouse going to be forced into the background in a way no heterosexual spouse ever would be?

    I find the assumption (5.00 / 3) (#80)
    by gyrfalcon on Tue May 11, 2010 at 04:25:10 PM EST
    that she must be a lesbian because she's a single, homely, middle-aged woman to be offensive.

    And so should you.

    It's offensive to lesbians and it's also offensive to single, homely, middle-aged women who are straight.

    We are finally, thank God, at a point where a woman can choose not to pursue having a partner and a family but can make her way in the world by herself, whether she's straight or gay.  To draw conclusions about her sexuality from that choice is frankly idiotic and false.  One thing has nothing to do with the other.

    The idea that the only possible reason a woman wouldn't be partnered with a man is because she's a lesbian is neanderthal thinking, IMO.


    Gay, straight or otherwise, Kagan is entitled (5.00 / 1) (#98)
    by Peter G on Tue May 11, 2010 at 08:58:33 PM EST
    to the same treatment, and to the same privacy and discretion, on this issue as David Souter received, if that is her choice.

    Sorry, but there's another one (5.00 / 2) (#102)
    by gyrfalcon on Wed May 12, 2010 at 01:16:41 AM EST
    Men are just as entitled to lead solitary lives as women are without assumptions being made about their sexuality-- which is, as you do point out, nobody's F-ing business in any case.

    Some of us, believe it or not, are actually more comfortable not being tied to a partner of any kind.


    Right. I should have included (none / 0) (#107)
    by Peter G on Wed May 12, 2010 at 08:58:31 AM EST
    "single or partnered," and "married or unmarried" for that matter.

    because there is more to it than that? (none / 0) (#81)
    by Capt Howdy on Tue May 11, 2010 at 04:51:10 PM EST
    Ben Domenech at HuffPo says:

    I erroneously believed that Ms. Kagan was openly gay not because of, as Stein describes it, a "whisper campaign" on the part of conservatives, but because it had been mentioned casually on multiple occasions by friends and colleagues -- including students at Harvard, Hill staffers, and in the sphere of legal academia -- who know Kagan personally.

    Oh, well, that's different (5.00 / 2) (#101)
    by gyrfalcon on Wed May 12, 2010 at 01:14:54 AM EST
    Gossip is oh so reliable a way to figure these things out, no?

    As really should be glaringly obvious, the grossly sexist assumptions of "students at Harvard, Hill staffers and the sphere of legal academia" have no more legitimacy than the speculations of emotionally unstable no-nothings like Andrew Sullivan.

    Really, I'm being polite.  I have major steam coming out of my ears on this.


    Agreed. And thank you (5.00 / 2) (#104)
    by Cream City on Wed May 12, 2010 at 06:25:47 AM EST
    for your comments.  I happen to be a marrying sort, as it turns out, but I did not always expect it to turn out that way in the day when we thought that we had established that marrying was not the only way to the pursuit of happiness.  

    That day is gone again in this society, and we see again these ridiculous whisper campaigns -- but now the whispers are shouted across cyberspace.  

    I have many hetero family and friends who never married, and so what?  I also have a family member who is very much a marrying sort but just married for the first time in his late '40s, only because he spent too many years on the wrong person and finally found the right one . . . and so what?

    And if Kagan has a fine legal mind, as we are told, so what about the rest of her anatomy?  

    (Btw, with what we know now about men's ways in days of yore, I would doubt that we have never had a gay justice, anyway.:-)


    It's still a measure of how much (5.00 / 3) (#105)
    by Anne on Wed May 12, 2010 at 07:08:17 AM EST
    more ground we women have to cover, that in 2010, there is still that perception that in order to be considered a whole person, a woman must be married - otherwise, people wonder, "what's wrong with her?"

    Women who choose not to have children face the same sort of nose-wrinkling speculation: what is "wrong" with a woman who doesn't want kids?

    I don't know what Kagan's situation is, but I'm pretty sure that if she were "Allan" Kagan, no one would be sniffing around wondering why he wasn't married, or if he was married, or what his sexual orientation is, because men are still "allowed" to put career first, still "allowed" to be considered normal for not having kids, and still "allowed" more privacy in matters of sexual orientation.

    While Kagan has a responsibility to enlighten us on her legal philosophy and beliefs, she owes no one any obligation to discuss her personal life; to suggest otherwise makes me question the motives of those who seem desperate to know one way or the other.


    Yep. Can we say: (none / 0) (#106)
    by Cream City on Wed May 12, 2010 at 07:20:33 AM EST

    "steam out your ears" (none / 0) (#108)
    by Capt Howdy on Wed May 12, 2010 at 09:07:21 AM EST
    perhaps you should reexamine why you find it so "offensive" to be suspected of being gay.

    I dont find is so at all anymore than I would being suspected of being German.  and I find the faux outrage a bit funny.  

    as far as Souter, there were not 1/10 of the apparent eye witness reports (or rumors as you call them) as in this case.

    also, the issue is not if we have had a gay justice before, I think that is not unlikely.  the point is having one that admits it.

    I have no idea if she is gay or not.  I just know what I read.  you should try that instead of the outrage.


    As usual (5.00 / 1) (#109)
    by gyrfalcon on Wed May 12, 2010 at 04:27:59 PM EST
    you are unable to read, or to follow an actual argument where anything related to women is concerned, but instead make up your own scenarios.