By Bonnie K. Goodman
Ms. Goodman is the Editor of History Musings. She has a BA in History & Art History & a Masters in Library and Information Studies from McGill University, and has done graduate work in history at Concordia University.
COURT AND LEGAL NEWS: WISCONSIN SUPREME COURT UPHOLDS ANTI-UNION LAW
Wisconsin Republican Governor Scott Walker: “The Supreme Court’s ruling provides our state the opportunity to move forward together and focus on getting Wisconsin working again.”
- Court allows Wisconsin’s union law to take effect: A divided Wisconsin Supreme Court handed Republican Gov. Scott Walker a major victory Tuesday, ruling that a polarizing union law that strips most public employees of their collective bargaining rights could take effect.
In a 4-3 decision that included a blistering dissent, the court ruled that Dane County Circuit Judge Maryann Sumi overstepped her authority when she declared the law void. She sided with a lawsuit that claimed Republicans didn’t provide proper public notice of a meeting that helped get the original legislation approved.
The legislation sparked weeks of protests when Walker introduced it in February. Tens of thousands of demonstrators descended on the state Capitol for weeks and Democratic senators fled the state to prevent a vote, thrusting Wisconsin to the forefront of a national debate over labor rights.
Walker claimed that the law, which also requires public employees to pay more for their health care and pensions, was needed to help address the state’s $3.6 billion budget shortfall and give local governments enough flexibility on labor costs to deal with deep cuts to state aid. Democrats saw it as an attack on public employee unions, which usually back their party’s candidates…. – AP, 6-15-11
- Wisconsin Court Reinstates Law on Union Rights: The Wisconsin Supreme Court cleared the way on Tuesday for significant cuts to collective bargaining rights for public workers in the state, undoing a lower court’s decision that Wisconsin’s controversial law had been passed improperly.
The Supreme Court’s ruling, issued at the close of the business day, spared lawmakers in the Republican-dominated Capitol from having to do what some of them strongly hoped to avoid: calling for a new vote on the polarizing collective bargaining measure, which had drawn tens of thousands of protesters to Madison this year and led Democratic lawmakers to flee the city in an effort to block the bill.
Republican leaders had warned on Monday that if the Supreme Court did not rule by Tuesday, they would feel compelled to attach the same measure to the state’s budget bill, which is expected to be approved this week…. – NYT, 6-15-11
- Divided Wisconsin Supreme Court upholds anti-union law: A sharply divided Wisconsin Supreme Court on Tuesday ruled that a controversial measure that curbs the collective bargaining rights of public workers in the state can go into effect.
In what was essentially a 4-3 decision, the high court overturned a lower court, which had ruled Republican lawmakers violated the state’s open meetings law when they passed the measure in March.
“Access was not denied,” the Supreme Court declared in Tuesday’s decision. “There is no constitutional requirement that the legislature provide access to as many members of the public as wish to attend meetings of the legislature or meetings of legislative committees.”
But Tuesday’ 68-page decision was a thicket of concurrences and dissents, reflecting the sharp divide the measure has created in the state itself.
David Prosser, whose recent reelection to the state’s high court had been hotly contested by opponents of the union measure, wrote in his eight-page concurrence that GOP legislators had good reason to rush things they way they did, given the ugly mood of protesters at the Capitol.
“The circuit court concluded that the legislature should have provided public notice of the special session conference committee 24 hours in advance,” Prosser wrote.
“The court did not acknowledge that thousands of demonstrators stormed and occupied the state Capitol within a few hours of the notice that a conference committee meeting would be held.”
But Justices Shirley Abrahamson, Ann Walsh Bradley and N. Patrick Coons disagreed, saying their colleagues had rendered a “hasty judgment” in a case where “the answers are not clear and our precedent is conflicting.”
The three in dissent blasted the order to overrule the lower court, saying it was “based on errors of fact and law.
“They inappropriately use this court’s original jurisdiction, make their own findings of fact, mischaracterize the parties’ arguments, misinterpret statutes, minimize (if not eliminate) Wisconsin’s constitutional guarantees, and misstate case law, appearing to silently overrule case law dating back to at least 1891,” the three said…. – Reuters, 6-15-11
- Court allows Wisconsin’s union law to take effect: The ruling on the law, which strips most public employees of collective bargaining rights, is a major victory for Republican Gov. Scott Walker.
The Wisconsin Supreme Court handed Republican Gov. Scott Walker a major victory on Tuesday, ruling that a polarizing anti-union law stripping most public employees of collective bargaining rights could take effect.
In a 4-3 decision, the court ruled that Dane County Circuit Judge Maryann Sumi overstepped her authority when she said Republican lawmakers had violated the open meetings statutes and declared the law void….
In a one-sentence reaction, the governor said: “The Supreme Court’s ruling provides our state the opportunity to move forward together and focus on getting Wisconsin working again.”… – LAT, 6-15-11
- Supreme Court reinstates collective bargaining law: Acting with unusual speed, the state Supreme Court on Tuesday ordered the reinstatement of Gov. Scott Walker’s controversial plan to end most collective bargaining for tens of thousands of public workers.
The court found that a committee of lawmakers was not subject to the state’s open meetings law, and so did not violate that law when it hastily approved the collective bargaining measure in March and made it possible for the Senate to take it up. In doing so, the Supreme Court overruled a Dane County judge who had halted the legislation, ending one challenge to the law even as new challenges are likely to emerge.
The changes on collective bargaining will take effect once Secretary of State Doug La Follette arranges for official publication of the stalled bill, and the high court said there was now nothing to preclude him from doing that. La Follette did not return a call Tuesday to say when the law would be published.
The ruling came on lines that have become familiar in recent years for the often divided court.
The majority opinion was by Justices Michael Gableman, David Prosser, Patience Roggensack and Annette Ziegler. The other three justices – Chief Justice Shirley Abrahamson and Justices Ann Walsh Bradley and N. Patrick Crooks – concurred in part and dissented in part. Abrahamson’s dissent was particularly stinging as she upbraided her fellow justices for errors and faulty analysis…. – Milwaukee-Wisconsin Journal Sentinel, 6-15-11
Posted by bonniekgoodman on June 15, 2011
By Bonnie K. Goodman
Ms. Goodman is the Editor of History Musings. She has a BA in History & Art History & a Masters in Library and Information Studies from McGill University, and has done graduate work in history at Concordia University.
COURT AND LEGAL NEWS:
SCOTUS Chief Justice John Roberts: The law “expressly reserves to the states the authority to impose sanctions on employers hiring unauthorized workers, through licensing and similar laws,” Chief Justice John Roberts wrote. “It uses the federal government’s own definition of ‘unauthorized alien,’ it relies solely on the federal government’s own determination of who is an unauthorized alien, and it requires Arizona employers to use the federal government’s own system for checking…
- Supreme Court backs Arizona immigration law: The Supreme Court today upheld an Arizona law penalizing companies that hire illegal immigrants, rejecting a challenge by business groups and civil liberties organizations, our court correspondent Joan Biskupic reports.
U.S. Rep. Lamar Smith, R-Texas, chairman of the House Judiciary Committee, released a statement supporting the ruling: “Not only is this law constitutional, it is common sense. American jobs should be preserved for Americans and legal workers.”
The Associated Press reports that Chief Justice John Roberts, writing for a majority made up of Republican-appointed justices, said the Arizona’s employer sanctions law “falls well within the confines of the authority Congress chose to leave to the states.”
Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor, all Democratic appointees, dissented. The fourth Democratic appointee, Justice Elena Kagan, did not participate because she worked on it while serving as President Obama’s solicitor general.
The law permits the state to take away the business licenses of companies that knowingly hire illegal workers. It requires employers to use an otherwise optional federal verification program, known as the E-Verify system, which collects data on workers from the Social Security Administration and Department of Homeland Security.
The ruling, by a 5-3 vote, comes off oral arguments presented in December. Reporting on those arguments, Biskupic had noted that the court “appeared poised … to uphold” the law.
The U.S. Chamber of Commerce and the Obama administration had opposed the law…. – USA Today, 5-26-11
- Supreme Court Upholds Arizona Immigration Law: The Supreme Court today backed an Arizona law that sanctions businesses that hire illegal immigrants.
On a 5-3 vote, the court held that federal immigration law does not preempt Arizona from suspending or revoking the licenses of businesses that violate state immigration law.
Chief Justice Roberts wrote the 27-page opinion, which can be found here. And here’s a report from WSJ.
Then-Gov. Janet Napolitano signed the Arizona law in 2007, saying that while immigration is a federal responsibility, Arizona had been forced to deal with the issue because the demand for cheap, undocumented labor in the state was contributing to illegal immigration…. – WSJ, 5-26-11
- Supreme Court sustains Arizona employer sanctions law: The Supreme Court has sustained Arizona’s law that penalizes businesses for hiring workers who are in the United States illegally, rejecting arguments that states have no role in immigration matters.
By a 5-3 vote, the court said Thursday that federal immigration law gives states the authority to impose sanctions on employers who hire unauthorized workers.
The decision upholding the validity of the 2007 law comes as the state is appealing a ruling that blocked key components of a second, more controversial Arizona immigration enforcement law. Thursday’s decision applies only to business licenses and does not signal how the high court might rule if the other law comes before it.
Chief Justice John Roberts, writing for a majority made up of Republican-appointed justices, said the Arizona’s employer sanctions law “falls well within the confines of the authority Congress chose to leave to the states.”
Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor, all Democratic appointees, dissented. The fourth Democratic appointee, Justice Elena Kagan, did not participate in the case because she worked on it while serving as President Barack Obama’s solicitor general
Breyer said the Arizona law upsets a balance in federal law between dissuading employers from hiring illegal workers and ensuring that people are not discriminated against because they may speak with an accent or look like they might be immigrants.
Employers “will hesitate to hire those they fear will turn out to lack the right to work in the United States,” he said…. – AP, 5-26-11
- Justices Uphold Law Penalizing Hiring of Illegal Immigrants: The Supreme Court on Thursday upheld an Arizona law that imposes harsh penalties on businesses that hire illegal immigrants.
The 5-to-3 decision amounted to a green light for vigorous state efforts to combat the employment of illegal workers. The majority opinion, written by Chief Justice John G. Roberts on behalf of the court’s five more conservative members, noted that Colorado, Mississippi, Missouri, Pennsylvania, Tennessee, Virginia and West Virginia had recently enacted laws similar to the one at issue in the case.
The decision did not directly address a second, more recent Arizona law that in some circumstances requires police there to question people they stop about their immigration status. The United States Court of Appeals for the Ninth Circuit blocked enforcement of that law in April, and the case may reach the Supreme Court soon.
The challenge to the older Arizona law that was the subject of Thursday’s decision was brought by a coalition of business and civil liberties groups, with support from the Obama administration. They said the law, the Legal Arizona Workers Act, conflicted with federal immigration policy.
The decision turned mostly on the meaning of a provision of a 1986 federal law, the Immigration Reform and Control Act, which said that it overrode “any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ” unauthorized aliens…. – NYT, 5-26-11
- Supreme Court upholds Ariz. law punishing companies that hire illegal immigrants: The Supreme Court on Thursday ruled that Arizona may revoke the business licenses of companies that knowingly employ illegal immigrants, rejecting arguments that the state’s law intrudes on the federal government’s power to control immigration.
The court ruled 5 to 3 that Congress specifically allowed states such an option, and dismissed the objections of an unusual coalition that challenged the state law: the U.S. Chamber of Commerce, civil rights groups, labor unions and the Obama administration.
The 1986 federal Immigration Reform and Control Act generally preempts states from using employer sanctions to control immigration. But Arizona took advantage of a parenthetical clause in the statute — “other than through licensing and similar laws” — to go after companies that knowingly and intentionally hired undocumented workers.
Chief Justice John G. Roberts Jr. agreed with the state’s reading of the federal law.
“It makes little sense to preserve state authority to impose sanctions through licensing, but not allow states to revoke licenses when appropriate as one of those sanctions,” he wrote.
Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. agreed with the outcome.
The law at issue — the Legal Arizona Workers Act — is different from a more recent Arizona law that the Obama administration is battling in lower courts…. – WaPo, 5-26-11
- SCOTUS upholds Arizona immigrant hiring law: The Supreme Court ruled Thursday to uphold Arizona’s law that penalizes companies that knowingly hire illegal immigrants.
In a 5-3 vote, the court concluded that federal immigration law doesn’t prevent the state from revoking the business licenses of companies that violate state law.
Chief Justice John Roberts wrote in the majority opinion that the court had come to its decision because “the state’s licensing provisions fall squarely within the federal statute’s savings clause and that the Arizona regulation does not otherwise conflict with federal law.”
The Arizona law also requires employers to use the federal government’s web-based E-Verify system to determine whether potential employees are eligible to work within the United States. The court upheld this provision, saying it is “entirely consistent” with federal law…. – Politico, 5-26-11
- US states can shut firms with illegals: Supreme Court: The US Supreme Court ruled Thursday that a state has the right to revoke the license of a business that knowingly employs illegal immigrants, in a case watched for implications on related judicial battles.
The top US court in a 5-3 decision upheld Arizona’s 2007 law, saying the state was within its rights under a 1986 federal immigration reform measure.
The ruling comes amid a legal battle on another Arizona law that took effect last July and which makes it a crime to be in the state, which borders Mexico, without proper immigration papers.
In Thursday’s decision, the court cited the federal Immigration Reform and Control Act of 1986, which preempts state or local law imposing civil or criminal sanctions other than through licensing and similar laws on firms that employ, recruit, or refer unauthorized aliens for employment.
The law “expressly reserves to the states the authority to impose sanctions on employers hiring unauthorized workers, through licensing and similar laws,” Chief Justice John Roberts wrote.
“It uses the federal government’s own definition of ‘unauthorized alien,’ it relies solely on the federal government’s own determination of who is an unauthorized alien, and it requires Arizona employers to use the federal government’s own system for checking employee status.”… – AFP, 5-26-11
- ‘Business death penalty’ for hiring illegal workers is upheld by Supreme Court: The 5-3 decision gives states more authority to act against illegal immigrants. Justices rule that states can take away the business licenses of companies that knowingly hire illegal immigrants.
The Supreme Court on Thursday gave Arizona and other states more authority to take action against illegal immigrants and the companies that hire them, ruling that employers who knowingly hire illegal workers can lose their license to do business.
The 5-3 decision upholds the Legal Arizona Workers Act of 2007 and its so-called business death penalty for employers who are caught repeatedly hiring illegal immigrants. The state law also requires employers to check the federal E-Verify system before hiring new workers, a provision that was also upheld Thursday.
The court’s decision did not deal with the more controversial Arizona law passed last year that gave police more authority to stop and question those who are suspected of being in the state illegally. But the ruling is likely to encourage the state and its supporters because the court majority said states remained free to take action involving immigrants…. – LAT, 5-26-11
Posted by bonniekgoodman on May 26, 2011
KAGAN CONFIRMED AND SWORN IN AS THE 112TH JUSTICE
By Bonnie K. Goodman
Ms. Goodman is the Editor / Features Editor at HNN. She has a Masters in Library and Information Studies from McGill University, and has done graduate work in history at Concordia University.
AP Elena Kagan is sworn in Saturday as the Supreme Court’s newest member as Chief Justice John Roberts, right, administers the judicial oath. More photos
- Kagan sworn in as fourth woman on Supreme Court: Elena Kagan was sworn in Saturday as the 112th justice and fourth woman ever to serve on the Supreme Court. Chief Justice John Roberts administered the oath to Kagan in a brief private ceremony at the court. Kagan, joined by family and friends, pledged to faithfully and impartially uphold the law. Afterward, she smiled broadly as a crowd of onlookers stood and applauded. “We look forward to serving with you,” Roberts said…. – AP, 8-7-10
- Elena Kagan sworn in as Supreme Court justice: Chief Justice John G. Roberts Jr. administers the oath two days after her confirmation by the Senate. She is not expected to dramatically alter the ideological makeup of the court…. – LAT, 8-7-10
- Brewing legal disputes could define Kagan’s early tenure: Reporting from Washington– This summer, as Elena Kagan quietly moved toward confirmation to the Supreme Court, three major legal disputes took shape that could define her early years. The justices soon will be called upon to decide whether states like Arizona can enforce immigration laws, whether same-sex couples have a right to marry and whether Americans can be required to buy health insurance. Kagan’s record strongly suggests she will vote in favor of federal regulation of immigration and health insurance and vote to oppose discrimination against gays and lesbians. What is less clear is whether she will be voting with a center-left majority that includes Justice Anthony M. Kennedy, or as liberal dissenter on a court whose five Republican appointees outvote the four Democratic appointees…. – LAT, 8-8-10
- Kagan celebrates with Obama, to be sworn Saturday: A beaming Elena Kagan and President Barack Obama on Friday celebrated her imminent ascension to the Supreme Court with jokes and references to the irreverent sense of humor she put on display during her Senate confirmation hearing.
An audience in the East Room of the White House, filled with Kagan’s friends and extended family, along with Justices Ruth Bader Ginsburg and Anthony Kennedy, screamed with joy and applauded as Obama introduced “Justice Elena Kagan.” Kagan, 50, holds the title of U.S. solicitor general for one more day.
“While she may be feeling a twinge of sadness about giving up the title of general — a cool title — I think we can agree that Justice Elena Kagan has a pretty nice ring to it,” Obama said of his second successful appointment to the court…. – AP, 8-6-10
- Obama on Kagan: ‘This is a good day’: After receiving some so-so news on unemployment this morning, President Obama got to kick back today and celebrate the elevation of his second Supreme Court justice. “This is a good day,” Obama said in a ceremony for Elena Kagan, who on Saturday will be sworn in as the high court’s 112th justice. Noting that he appointed Kagan as U.S. solicitor general two years ago, Obama said: “While she may be feeling a twinge of sadness about giving up the title of general — a cool title — I think we can all agree that Justice Elena Kagan has a pretty nice ring to it.”… – USA Today, 8-6-10
- Senate confirms Kagan as 112th justice: The Senate confirmed Elena Kagan Thursday as the Supreme Court’s 112th justice and the fourth woman in its history, granting a lifetime term to a lawyer and academic with a reputation for brilliance, a dry sense of humor and a liberal bent.
The vote was 63-37 for President Barack Obama’s nominee to succeed retired Justice John Paul Stevens.
Five Republicans joined all but one Democrat and the Senate’s two independents to support Kagan. In a rarely practiced ritual reserved for the most historic votes, senators sat at their desks and stood to cast their votes with “ayes” and “nays.”
Kagan watched the vote with her Justice Department colleagues in the solicitor general’s conference room, the White House said. Obama, traveling in Chicago, said her confirmation was an affirmation of her character and judicial temperament, and called the addition of another woman to the court a sign of progress for the country…. – AP, 8-5-10
White House Photo, Chuck Kennedy, 8/6/10
- Honoring Elena Kagan: Remarks by the President and Elena Kagan at Reception Honoring Her Confirmation: These folks may not agree on much, but they’ve all been impressed, as I have, by Elena’s formidable intellect and path-breaking career — as an acclaimed scholar and presidential advisor, as the first woman to serve as Dean of the Harvard Law School, and most recently as Solicitor General. They admire how, while she could easily have settled into a comfortable practice in corporate law, she chose instead to devote her life to public service. They appreciate her even-handedness and open-mindedness, and her excellent — and often irreverent — sense of humor.
These are traits that she happens to share with the last Solicitor General who went on to become a Supreme Court Justice — one for whom Elena clerked, and whom she considers one of her heroes — Justice Thurgood Marshall. And we are very proud to have Justice Marshall’s widow here today joining us. (Applause.)
In a tribute she wrote after Justice Marshall’s death, Elena recalled how she and her fellow clerks took turns standing guard when his casket lay in state at the Supreme Court — and how 20,000 people stood in a line that stretched around the block to pay their respects. They were people from every background and every walk of life: black, white, rich and poor, young and old. Many brought their children, hoping to impress upon them the lessons of Justice Marshall’s extraordinary life. Some left notes, some left flowers. One mourner left a worn slip opinion of Brown v. Board of Education.
It is, to this day, a moving reminder that the work of our highest Court shapes not just the character of our democracy, but the most fundamental aspects of our daily lives — how we work, how we worship, whether we can speak freely and live fully, whether those words put to paper more than two centuries ago will truly mean something for each of us in our time. – WH, 8-6-10
- Honoring Elena Kagan: Remarks by Elena Kagan at Reception Honoring Her Confirmation: Finally, I want to thank my family and friends. I have a lot of family here today — my brothers and sister-in- law, a nephew, a niece, aunts, uncles, cousins — and I have a great many friends here as well. You came from all over the country as soon as you heard the Senate had approved my nomination. And I’m moved and deeply grateful for your support.
And all around me in this room, I feel the presence of my parents. I wouldn’t be standing here today if not for their love and sacrifice and devotion. And although my parents didn’t live to see this day, what I can almost hear them saying — and I think I can hear Justice Marshall saying this to me right now as well — is that this appointment is not just an honor. Much more importantly, it is an obligation — an obligation to protect and preserve the rule of law in this country; an obligation to uphold the rights and liberties afforded by our remarkable Constitution; and an obligation to provide what the inscription on the Supreme Court building promises: equal justice under law.
Tomorrow, I will take two oaths to uphold this solemn obligation: one, to support and defend the Constitution; and the other, to administer justice without respect to persons, to the rich and poor alike.
Today, Mr. President, I will simply say to you and to everyone here and across the nation that I will work my hardest and try my best to fulfill these commitments and to serve this country I love as well as I am able. – WH, 8-6-10
Posted by bonniekgoodman on August 8, 2010
OBAMA PRESIDENCY & 111TH CONGRESS:
Luke Sharrett/The New York Times
Solicitor General Elena Kagan faced questions from senators including, clockwise from top left, Jeff Sessions, Patrick J. Leahy, Ted Kaufman, Arlen Specter, Al Franken, Jon Kyl, Charles E. Grassley and Orrin G. Hatch.
IN FOCUS: STATS
- Kagan will be Confirmed: Elena Kagan is speeding toward confirmation as the 112th Supreme Court justice, with Republicans showing little appetite for a long-shot filibuster attempt after sparring with her over abortion, gays in the military and other divisive issues. “Solicitor General Kagan will be confirmed,” Sen. Patrick Leahy, D-Vt., confidently predicted as the Senate Judiciary Committee wrapped up its examination of President Barack Obama’s high court pick…. – AP, 7-1-10
- The Kagan Hearings and Politics of Life Tenure on Supreme Court Should Congress Impose Term Limits for Supreme Court Justices?: If Elena Kagan is confirmed to the Supreme Court and she serves until she’s 90 — the age of her predecessor Justice John Paul Stevens — she would become the longest serving justice in U.S. history. It’s a weighty and not unreasonable prospect that has hovered over her Senate confirmation hearings on Capitol Hill this week, fueling tough questioning of the 50 year-old nominee who faces appointment for life.
In a new CSPAN poll, 53 percent of Americans say they “disagree” with the policy that says justices should remain on the bench as long as they display “good behavior.”… – ABC News, 7-1-10
- Elena Kagan Confirmation Hearings Liveblog, Day 3 – Talk Radio News, 6-30-10
- SCOTUS Hearings Live Blog: Elena Kagan Day 2 – CBS News, 6-29-10
- SCOTUS Hearings Live Blog: Elena Kagan Day 1 – CBS News, 6-28-10
- SPIN METER: What happened to the Kagan standard?: Elena Kagan declined to discuss her passions, demurred when asked anything that might tip her hand on the Supreme Court and invoked her right to remain inscrutable even on cases buried in the past. In short, Kagan did her best to ensure her high court nomination hearing was just the kind of benign event she criticized years ago for lacking “seriousness and substance.”…. – AP, 7-1-10
- Kagan Ends Hearings, Confirmation In Sight: After Third Day of Senate Testimony, Dems and Republicans Agree Supreme Court Nominee Elena Kagan Will Likely be Confirmed… – CBS News, 6-30-10
- Republicans Press Kagan on Social Issues: They grilled her on her handling of military recruitment at Harvard Law School. They highlighted how, as an aide to President Bill Clinton, she helped edit a medical group’s statement to strengthen support for the procedure critics call partial-birth abortion. They painted her as a partisan and suggested she would be too deferential to Congress when reviewing the constitutionality of sweeping legislation, like President Obama’s landmark health care law.
But try as they might, Republicans could not knock Solicitor General Elena Kagan off her stride. And as her second day of questioning by the Senate Judiciary Committee wound down on Wednesday, some conceded that her confirmation to the Supreme Court was all but assured… – NYT, 7-1-10
- Court Jester? Kagan Draws Laughs at Confirmation Hearings: There isn’t a two drink minimum at the Senate Judiciary Committee, but maybe there should be. At times Elena Kagan’s hearings have felt more like Kagan’s comedy club than a Supreme Court confirmation hearing…. – CBS News, 6-30-10
- Elena Kagan, if Supreme Court doesn’t work out, try the Borscht Belt: She won’t bite on THE Twilight question. She cracks a fortune cookie comeback to an odd question on Christmas. If Elena Kagan should somehow not be confirmed for the U.S. Supreme Court, she could try the Borscht Belt. That was the old route for Jewish comics through the Catskills resorts popular as retreats for urban Jews like those from her home turf on the Upper West Side… – USA Today, 6-30-10
- Kagan Follows Precedent by Offering Few Opinions: Elena Kagan deflected questions about her own views on gun rights and abortion during her Supreme Court confirmation hearings on Tuesday, instead describing Supreme Court precedents. She declined to say whether terrorism suspects must be warned of the right to remain silent, saying the issue was “quite likely to get to the courts.”
Ms. Kagan’s responses, during a long and sometimes tense day of parrying with members of the Senate Judiciary Committee, were similar to those of Supreme Court nominees past. But unlike her predecessors, Ms. Kagan wrote a 1995 article calling for judicial nominees to be more forthcoming. On Tuesday, minutes into her testimony, she backpedaled, saying she now believed it would be inappropriate even to answer questions that might “provide some kind of hints” about her views on matters of legal controversy.
“I think that that was wrong,” she said. “I think that — in particular, that it wouldn’t be appropriate for me to talk about what I think about past cases — you know, to grade cases — because those cases themselves might again come before the court.”… – NYT, 6-30-10
- Elena Kagan’s Opening Statement: Excerpts: “Mr. Chairman, the law school I had the good fortune to lead has a kind of motto, spoken each year at graduation. We tell the new graduates that they are ready to enter a profession devoted to “those wise restraints that make us free.” That phrase has always captured for me the way law, and the rule of law, matters. What the rule of law does is nothing less than to secure for each of us what our Constitution calls “the blessings of liberty” – those rights and freedoms, that promise of equality, that have defined this nation since its founding. And what the Supreme Court does is to safeguard the rule of law, through a commitment to even-handedness, principle, and restraint.
“The idea is engraved on the very face of the Supreme Court building: Equal Justice Under Law. It means that everyone who comes before the Court – regardless of wealth or power or station – receives the same process and the same protections. What this commands of judges is even-handedness and impartiality. What it promises is nothing less than a fair shake for every American.
“[T]he Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one – properly deferential to the decisions of the American people and their elected representatives. What I most took away from those experiences was simple admiration for the democratic process. That process is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests. The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people.”
“I’ve led a school whose faculty and students examine and discuss and debate every aspect of our law and legal system. And what I’ve learned most is that no one has a monopoly on truth or wisdom. I’ve learned that we make progress by listening to each other, across every apparent political or ideological divide. I’ve learned that we come closest to getting things right when we approach every person and every issue with an open mind. And I’ve learned the value of a habit that Justice Stevens wrote about more than fifty years ago – of ‘understanding before disagreeing.’
I will make no pledges this week other than this one – that if confirmed, I will remember and abide by all these lessons. I will listen hard, to every party before the Court and to each of my colleagues. I will work hard. And I will do my best to consider every case impartially, modestly, with commitment to principle, and in accordance with law.” – CBS News, 6-28-10
HISTORIANS & ANALYSTS’ COMMENTS
- Jonathan Sarna: Is Kagan’s Jewishness Being Used Against Her?: Jewish groups may be even more silent than usual because Kagan, if confirmed, would be the third Jew at one time on the Supreme Court — an historic first. Brandeis historian Jonathan Sarna said Jewish groups tend to be quieter when the nominee is Jewish. “Privately, there’s a residual concern that maybe if we’re noisy, we could hurt the nominee and that it might raise anti-Semitic comments about the candidate.” — NY Jewish Week, 6-30-10
E.J. Dionne Jr: The New Republic: Liberals And The Judiciary:
This week’s hearings over Elena Kagan’s nomination to the Supreme Court will mark a sea change in the way liberals argue about the judiciary.
Democratic senators are planning to put the right of citizens to challenge corporate power at the center of their critique of activist conservative judging, offering a case that has not been fully aired since the days of the great Progressive Era Justice Louis Brandeis.
It was Brandeis who warned against the “concentration of economic power” and observed that “so-called private corporations are sometimes able to dominate the state.”
None of this means that Kagan’s nomination is in jeopardy. On the contrary, she’ll be approved easily, and should be. She will be calm and reassuring during her hearings that start Monday. And unless we live in an age of partisan double standards, she can’t be asked to be anymore forthcoming about her views than were Chief Justice John Roberts or Justice Samuel Alito…. – NPR, 6-28-10
Posted by bonniekgoodman on July 1, 2010
White House Photo, Lawrence Jackson, 5/10/1
- Speeches and writings show fuller picture of Kagan: Not so long ago, Supreme Court nominee Elena Kagan opined the law sometimes allows things that are “just plain dumb.” She once compared herself to Oprah Winfrey giving away swag on TV. And she routinely told students at one of the nation’s most competitive law schools they should just relax and have fun. From reams of files from Kagan’s past, glimmers of the would-be Supreme Court justice’s personality and style are emerging to help paint a fuller portrait for senators weighing her confirmation. The documents provide glimpses of Kagan’s sense of humor, her view of the importance and limits of the law, her take on the role of the Supreme Court in American life, and the major issues and sometimes-mundane tasks she handled during a career in legal circles, academia and a Democratic White House…. – AP, 5-20-10
- Senators Want Kagan Documents: Washington….Moving toward a quick confirmation hearing, the Senate Judiciary Committee on Wednesday asked the Clinton presidential library to turn over volumes of documents, correspondence , emails and other memos related to Elena Kagan during her time as a top presidential assistant in the 1990s…. – LAT, 5-19-10
- Senate panel will begin Kagan confirmation hearings on June 28: Kagan hearings will begin June 28 The Senate Judiciary Committee will begin confirmation hearings June 28 for Supreme Court nominee Elena Kagan, the panel’s chairman announced Wednesday. Sen. Patrick J. Leahy (D-Vt.) said the schedule should allow the hearings to be completed before senators go home in early July for a week-long break…. – WaPo, 5-19-10
- FACT CHECK: Kagan is no ivory-tower peacenik: Elena Kagan is no ivory-tower peacenik. Judging by her own words, the Supreme Court nominee held the armed forces in high regard during her tenure as Harvard Law School dean. She had one beef with the institution, a big one: its “repugnant” prohibition on openly gay service members. Republicans are using that to portray her as an anti-military activist and to accuse her — groundlessly — of acting outside the law in restricting military recruiters on campus. If anything, the record shows Kagan defended Harvard’s conditions for on-campus military recruitment with less than a full-throated roar… – AP, 5-18-10
- Kagan’s skills well-suited to Senate hearings: Standing before the nine Supreme Court justices, Elena Kagan is forceful, quick on her feet, admits error when necessary, then goes right back at the questioner — blunt yet polite. Her style as solicitor general is likely to serve her in confirmation hearings, but only to an extent, legal and political analysts say. Kagan has exhibited the dexterity necessary to respond to tough questions in a public forum, but a Senate Judiciary Committee hearing is a more politically charged setting than the high court. “She can’t just show that she’s a super-duper lawyer for the president,” says Ken Duberstein, a chief of staff to President Reagan who handled several Supreme Court nominations. “She has to tell a life story and convey a temperament that shows she’ll be fair and impartial.”… – USA Today, 5-17-10
- Senator says Kagan broke law at Harvard: While Senate Republicans acknowledge that they are unlikely to derail Solicitor General Elena Kagan’s nomination to the Supreme Court, that hasn’t stopped them from testing potential lines of attack against her. Sen. Jeff Sessions (Ala.), the ranking Republican on the Judiciary Committee, accused Kagan of violating the law when she was dean of Harvard Law School between 2003 and 2008. During her tenure, she continued the school’s restrictions on campus military recruitment because of the armed forces’ “don’t ask, don’t tell” policy that bans openly gay people from serving. Sessions blasted Kagan on ABC’s “This Week” for enforcing the recruitment restrictions during a time of war, which he called “no little-bitty matter.”… – WaPo, 5-17-10
- Personal ties bind Obama, Kagan President joins ranks of picking friend for court: If Elena Kagan is confirmed as the next Supreme Court justice, President Obama will have something that has become increasingly rare for presidents: a personal friend on the court. Indeed, when Obama introduced Kagan at the White House as his court nominee, it sounded almost as if he were talking about himself: a former Chicago law professor, Harvard graduate, and White Sox fan who eschewed the lucrative world of corporate law to focus on academia and public service. Obama brought her into his administration by nominating her to be solicitor general and now, after slightly more than a year in that job, he wants to elevate her to the Supreme Court. Boston Globe, 5-16-10
- Pragmatism over partisanship? Kagan described as favoring a consensus-building, analytical style over a passion for her own ideas: 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. Ronald Reagan was heading to the White House, and Rep. Elizabeth Holtzman — a champion for women’s causes for whom Ms. Kagan had toiled 14-hour days as a campaign press assistant — was leaving Capitol Hill. Ms. 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.”… – WaPo, 5-16-10
- ‘General Kagan’ no newcomer to high court: Six times in the past nine months, Solicitor General Elena Kagan has come to the mahogany lectern in the hushed reverence of the Supreme Court to argue the government’s case before the justices she now hopes to join soon…. – AP, 5-15-10
- Kagan’s Link to Marshall Cuts 2 Ways: In the spring of 1988, Justice Thurgood Marshall assigned a clerk, Elena Kagan, to write a first draft of his opinion in a case considering whether a school district could charge a poor family for busing a child to the nearest school, which was 16 miles away….
Because Ms. Kagan has never been a judge and has produced only a handful of scholarly writings, clues to her philosophy are rare. In that vacuum, liberals and conservatives alike are attributing special significance to her clerkship year with Justice Marshall, who led the civil rights movement’s legal efforts to dismantle segregation before becoming a particularly liberal Supreme Court justice.
But while Ms. Kagan, a former board member for the Thurgood Marshall Scholarship Fund, clearly relished the experience and admired the justice as a historic figure, she appears to have had a far more ambivalent attitude toward his jurisprudence, according to a review of his papers at the Library of Congress, her comments over the years about him and interviews with her fellow clerks and colleagues…. – NYT, 5-13-10
- As Clinton Aide, Kagan Recommended Tactical Support for an Abortion Ban: Elena Kagan, President Obama’s nominee to the Supreme Court, once recommended to President Bill Clinton that he support a Democratic-sponsored ban on some late-term abortions as a way to defeat a stronger measure gaining momentum in the Senate.
As a White House domestic policy aide, Ms. Kagan sent Mr. Clinton a memorandum urging him to endorse the ban sponsored by Senator Tom Daschle, Democrat of South Dakota. The memo anticipated that the Daschle plan would fail but suggested that it would provide political cover for enough senators to stick by the president when he ultimately vetoed the tougher bill sponsored by Republicans.
“We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto,” Ms. Kagan and her boss, Bruce Reed, said in the memo on May 13, 1997…. – NYT, 5-12-10
- Kagan fits Obama’s vision for the Supreme Court: With his second Supreme Court nomination in as many years, President Barack Obama has laid down clear markers of his vision for the court, one that could prove to be among his most enduring legacies….
Kagan, 50, the solicitor general named to replace outgoing liberal Justice John Paul Stevens, would not immediately alter the ideological balance of the bench. But her addition would almost certainly provide a lasting, liberal presence, and administration officials hope she would, in the words of one, “start to move the court into a different posture and profile.”….
Rep. Lamar Smith of San Antonio, the ranking Republican on the House Judiciary Committee, said Kagan will have to show “that she was not chosen by the president as a political ally who will rubber-stamp his agenda — but as an impartial jurist who will uphold the Constitution’s limits on the proper role of the federal government and defend the liberties of everyday Americans.”…. – WaPo, 5-10-10
- Obama Is Said to Select Kagan as Justice: President Obama will nominate Solicitor General Elena Kagan as the nation’s 112th justice, choosing his own chief advocate before the Supreme Court to join it in ruling on cases critical to his view of the country’s future, Democrats close to the White House said Sunday. After a monthlong search, Mr. Obama informed Ms. Kagan and his advisers on Sunday of his choice to succeed the retiring Justice John Paul Stevens. He plans to announce the nomination at 10 a.m. Monday in the East Room of the White House with Ms. Kagan by his side, said the Democrats, who insisted on anonymity to discuss the decision before it was formally made public…. – NYT, 5-10-10
- Meet Elena Kagan – WH, 5-11-10
- Nominating Kagan: “Her Passion for the Law is Anything But Academic”: For nearly 35 years, Justice Stevens has stood as an impartial guardian of the law, faithfully applying the core values of our founding to the cases and controversies of our time.
He has done so with restraint and respect for precedent — understanding that a judge’s job is to interpret, not make law — but also with fidelity to the constitutional ideal of equal justice for all. He’s brought to each case not just mastery of the letter of the law, but a keen understanding of its impact on people’s lives.
Elena is widely regarded as one of the nation’s foremost legal minds. She’s an acclaimed legal scholar with a rich understanding of constitutional law. She is a former White House aide with a lifelong commitment to public service and a firm grasp of the nexus and boundaries between our three branches of government. She is a trailblazing leader — the first woman to serve as Dean of Harvard Law School — and one of the most successful and beloved deans in its history. And she is a superb Solicitor General, our nation’s chief lawyer representing the American people’s interests before the Supreme Court, the first woman in that position as well. And she has won accolades from observers across the ideological spectrum for her well-reasoned arguments and commanding presence.
But 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; her habit, to borrow a phrase from Justice Stevens, “of understanding before disagreeing”; her fair-mindedness and skill as a consensus-builder.
These traits were particularly evident during her tenure as dean. At a time when many believed that the Harvard faculty had gotten a little one-sided in its viewpoint, she sought to recruit prominent conservative scholars and spur a healthy debate on campus. And she encouraged students from all backgrounds to respectfully exchange ideas and seek common ground — because she believes, as I do, that exposure to a broad array of perspectives is the foundation not just for a sound legal education, but of a successful life in the law.
This appreciation for diverse views may also come in handy as a die-hard Mets fan serving alongside her new colleague-to-be, Yankees fan Justice Sotomayor, who I believe has ordered a pinstriped robe for the occasion. (Laughter.)
But while Elena had a brilliant career in academia, her passion for the law is anything but academic. She has often referred to Supreme Court Justice Thurgood Marshall, for whom she clerked, as her hero. I understand that he reciprocated by calling her “Shorty.” (Laughter.) Nonetheless, she credits him with reminding her that, as she put it, “behind law there are stories — stories of people’s lives as shaped by the law, stories of people’s lives as might be changed by the law…”
That understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people, has animated every step of Elena’s career — including her service as Solicitor General today.
During her time in this office, she’s repeatedly defended the rights of shareholders and ordinary citizens against unscrupulous corporations. Last year, in the Citizens United case, she defended bipartisan campaign finance reform against special interests seeking to spend unlimited money to influence our elections. Despite long odds of success, with most legal analysts believing the government was unlikely to prevail in this case, Elena still chose it as her very first case to argue before the Court.
I think that says a great deal not just about Elena’s tenacity, but about her commitment to serving the American people. I think it says a great deal about her commitment to protect our fundamental rights, because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens. – WH, 5-10-10
HISTORIANS & ANALYSTS’ COMMENTS
- Gil Troy: Globe and Mail: A Careerist Conundrum of Supreme Proportions Did Elena Kagan somehow lose her voice and soul while climbing her way to the top?: For New Yorkers born in the 1960s, U.S. President Barack Obama’s nomination of Elena Kagan to the Supreme Court triggered the frissons of pride and envy many of us feel when someone our age and from our humble background makes it. But Ms. Kagan’s careerist conundrum is particularly fascinating. Did this woman with the perfect Princeton- Oxford-Harvard résumé somehow lose her voice and her soul while climbing professionally as deliberately as she did? To be fair, to young New Yorkers in the 1970s, the notion of a woman sitting on the Supreme Court was downright revolutionary. Ms. Kagan’s nomination is the ultimate Free to Be … You and Me moment…
Still, we do not know how Ms. Kagan will act. She may prove to have been a phony phoenix, emerging, after years of hiding it, as a full-throated ideologue. Alternatively, decades of calculated accommodating might keep her building bridges as she did when she was dean of Harvard Law School.
Regardless, as a professor and a parent, I wonder: Do I advise my students and my children that they are “free to be you and me?” Or, to go as far as some want to go, must they squelch their voices, round their edges, and be the corporate careerists that excessive media scrutiny in a polarizing political culture demands they be? – The Globe & Mail, 5-17-10
- Julian Zelizer: Senate should accept Kagan’s ’95 ‘challenge’: In 1995, Elena Kagan published a lengthy book review in the University of Chicago Law Review, titled “Confirmation Messes, Old and New,” in which she was critical of the confirmation process for Supreme Court nominees.
While she challenged the author Stephen Carter’s argument that the confirmations had become nasty and destructive, she instead complained that the hearings tended to avoid substantive issues.
Kagan argues that in response to the contentious debate over Robert Bork in 1987, senators refrained from dealing with real issues. Rather than offering a serious examination of how a nominee viewed constitutional issues, the hearings instead provided a “vapid and hollow charade” devoid of substance.
She urged a return to the kind of debate that surrounded Bork, which she said “presented to the public a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominees.”
Based on the initial media and political response to her nomination, it seems that Kagan was spot on. During the first week since President Obama announced his selection, public discussion has revolved around irrelevant issues that won’t teach us much about Kagan….
Maybe after reading Kagan’s record, the Senate can elevate rather than denigrate the public discourse and demonstrate how Congress can fulfill its functions. – CNN, 5-17-10
Posted by bonniekgoodman on May 17, 2010