Kagan Hearings: CFJ's Live Blogging

Commentary by CFJ Executive Director Curt Levey:

5:03 pm:

Kagan once again dodged the question of why she required Harvard Law students to take international law but not constitutional law. Instead, she simply restated her opinion that constitutional law should be a second year course. That begs the question of why it shouldn’t be a required second year course. For example, Professional Responsibility is a required course at Harvard Law School even though students take it in their second or third year.

4:46 pm:

You’ve got to give Sen. Franken credit for his creativity. He just defined “judicial activism” so as to exempt from that label any decision that “show[s] a special solicitude for the despised and disadvantaged” (quoting Kagan describing Justice Marshall). In other words, Franken exempts decisions that favor the little guy, consistent with the Democrats’ theme for these hearings. Ironically, Franken bases this exemption on footnote 4 of Carolene Products, which would have been one of the most blatant examples of judicial activism if it were binding law. Instead, it was merely dicta.

4:23 pm:

I don’t want the exchange about natural and preexisting rights between Kagan and Sen. Coburn to obscure the fact that one need not look outside the Constitution to conclude that the Second Amendment is a fundamental right that extends to the states, as the Supreme Court concluded in McDonald earlier this week. To put it another way, there is no principled reason for concluding that the right to keep and bear arms is any less fundamental and applicable to the states than the rest of the Bill of Rights. Yet that would have been the Court’s conclusion if Justice Sotomayor and her three liberal colleagues had had their way in McDonald.

3:16 pm:

Kagan says she agrees that evolving traditions are one of the factors courts can look to in interpreting the Constitution. Sen. Cornyn responds that it’s the job of the democratically elected legislature, not the courts, to move the law in accordance with the traditions and values of the people it represents. Instead, as Justice Scalia remarked in his Romer v. Evans (1996) dissent, it’s the evolving “views and values of the lawyer class from which the Court's Members are drawn" that the Court tends to enforce. Those who prefer the living Constitution approach to the law do so precisely because more democratic methods of moving the law – legislation and constitutional amendments – do not allow the intellectual elite to impose its values on average Americans.

2:55 pm:

Lindsey Graham says the term “judicial activism” means little more than that a case was decided contrary to how we would have liked. It’s certainly true that the Left has tried to redefine “judicial activism” that way. But it would have been much more helpful for Sen. Graham to explain the difference between true judicial activism – making stuff up, to put it in layman’s terms – and the faux “judicial activism” of the Roberts Court, i.e., moving the law closer to the text and original intent of the Constitution and statutes. Liberals may not like that strict constructionist approach to the law, but such an approach is the opposite of making stuff up.


LUNCH BREAK

1:03 pm:

Oy, Sen. Specter is back to complaining about the “congruence and proportionality” test for the 14th Amendment’s Enforcement Clause. It’s his favorite example of the Supreme Court allegedly giving too little deference to Congressional findings, a theme Specter seems obsessed with. We hear that theme every time Specter questions a Supreme Court nominee. I’m not sure a long-time member of Congress like Specter is in the best position to dispassionately assess whether Congress gets enough deference.

12:49 pm:

Sen. Grassley asks Kagan about gay marriage, specifically is it an issue to be decided by the states. I’m glad Grassley is focusing on the issue because, at this time, the number one goal of the purveyors of judicial activism is the discovery of a right to gay marriage in the U.S. Constitution. Given Kagan’s strong feelings about gay rights, the discovery of a right to gay marriage has to be the top concern of those who fear Kagan will be an activist judge.

12:09 am:

In trying to defend kicking military recruiters off the Harvard Law School campus, Kagan states that the Law School’s Career Service does nothing more than provide students with information and facilitate meetings with employers. Kagan is trying to portray Career Service’s role as minimal enough to be easily substituted for. Forcing the armed forces to find a substitute is hardly the “equal” access required by the Solomon Amendment. But in any case, Kagan is downplaying the role of Career Services. I was a student at Harvard Law School shortly before Kagan became dean and I can tell you that Career Services’ role in student job hunting was paramount. Because Career Services provided access to a large and varied set of employers, most students relied entirely on Career Services in finding a job, rather than trying to discover and set up interview opportunities outside of Career Services. Sure, a highly motivated student could go outside Career Services, but that’s like saying that the segregated schools of the pre-Brown era provided an “equal” education to minority students because highly motivated black students could still get a good education.

A colleague adds the following point about Kagan’s argument that asking a student group to facilitate interviews with military recruiters was a sufficient substitute:

“Would Kagan support students seeking abortions to be referred to an unfunded social group of volunteers instead of the student health center?”

11:39 am

Sen. Sessions points out that Kagan, as Solicitor General, didn’t meet even her minimal responsibility to defend federal law in a Ninth Circuit challenge to “Don’t Ask, Don’t Tell.” I note that she also fell short of that responsibility in “defending” the Defense of Marriage Act. Kagan tries to explain her decision not to appeal to the Ninth Circuit, citing the fact that it would have been an interlocutory appeal – that is, an appeal of an intermediate issue before a final decision in the case. But Sessions has already pointed out that such an explanation is in striking contrast to Kagan’s reaction to the interlocutory appeal in the Solomon Amendment case Rumsfeld v. FAIR. In kicking military recruiters off the Harvard Law School campus for the second time, Kagan not only elevated the importance of the Third Circuit’s decision in the interlocutory appeal, but ignored the fact that the decision didn’t apply to the First Circuit city of Cambridge, MA.

11:16 am

Outside the hearing room during the break, Sens. Cornyn, Coburn and Kyl are before the cameras. Sen. Kyl notes that the Commerce Clause is very broad, as Kagan has stated during the hearings, only because the Court has made it very broad through “interpretation.” Fortunately, Kagan conceded this morning that stare decisis is at its strongest when the Court is interpreting statutes rather than constitutional provisions like the Commerce Clause. Perhaps she will not complain if the Court restores a little bit of original intent to the Commerce Clause in striking down Obamacare’s individual mandate.

11:02 am:

Professional comedian Sen. Franken is trying to be funny. Sadly, he is not nearly as funny as Elena Kagan has been during the hearings. I don’t like her judicial philosophy but I have to admit that I do like her sense of humor.

10:47 am

Sen. Franken is whining about Citizens United, like most of his Democratic colleagues on the panel. I think it’s fair to say the Democrats are obsessed with that case. Could the depth of their obsession have something to do with concern that the Court reaffirming the free speech rights of corporations will not benefit Democrats electorally? The Democrats’ rush to pass the DISCLOSE Act before November suggests that electoral concerns, more than principle, are driving the obsession.

10:24 am:

Now that Kagan has declared that “results-oriented judging” is the “worst thing you can say about a judge,” will the Democrats retreat from the theme they’ve chosen for these hearing – that is, will they stop decrying Supreme Court decisions, such as Ledbetter, solely because the result is perceived to benefit big guys over little guys?

Update: See here for a good discussion of how the Democratic senators questioning Kagan are “peddling fables about” the Ledbetter case.

Democrat: It's wrong to push through sweeping changes on a narrow, non bipartisan basis

Sheldon Whitehouse (D- Rhode Island) appears to be making the argument that the mark of an acceptable judicial opinion that overturns laws is not whether it is grounded in law but that it is bipartisan and not passed by narrow margins, comparing Brown v. Board and Roe v. Wade favorably to cases like Citizens United, or McDonald v. City of Chicago.

Considering that the Democrats just rammed through a bill vastly expanding government control of our health care, completely reordering one sixth of our economy, and solidly opposed by a majority of the people without a single Republican vote by the narrowest margin possible, this appeal to bipartisanship comes off very hollow.

So, apparently, the judicial branch should think about bipartisanship and large majorities, rather than whether the law justifies their rulings, but when the political branches act, if they have the power, they should not worry about compromise or working with the other side of the aisle.

Can The Government Tell You What to Eat?

The look on Kagan's face is priceless.

Democrats quietly cheer high court gun ruling

From Politico:

When the Supreme Court extended the individual right to own a gun Monday, they handed Second Amendment advocates—many of whom are at home in the GOP—one of their most significant legal victories ever.

But who won the day in politics? The Democrats.

For them, the court’s groundbreaking decision couldn’t have been more beneficial to the cause in November. Now, Democratic candidates across the map figure they have one less issue to worry about on the campaign trail. And they won’t have to defend against Republican attacks over gun rights and an angry, energized base of gun owners.

“It removes guns as a political issue because everyone now agrees that the Second Amendment is an individual right and everybody agrees that it’s subject to regulation,” said Lanae Erickson, deputy director of the culture program at the centrist think tank Third Way.

I realize they may be happy, but I am not so sure they won the day. All of their preferred justices dissented, and they are about to replace one dissenter with another. Much like Roe, the issue is now firmly embedded in the courts, which will keep the issue alive for a generation, at least. Unless Democrats question Kagan on guns and vote accordingly they are not going to escape the issue. As the WSJ points out below, the liberal justices are lying in wait to overturn both Heller and McDonald. Should President Obama get to replace one of the conservative justices or Justice Kennedy both cases likely go out the window. The liberal justices have shown exactly zero respect for Heller as precedent. I fail to see this as a winner for Democrats unless they vote against Kagan, citing concerns over gun rights. I am not going to hold my breath.

Feinstein on Judicial Inexperience, Then and Now

From Patterico:

Dianne Feinstein, February 10, 2003:

Miguel Estrada has never been a judge. So we have no record of judicial decision-making to examine. This is not dispositive in itself, but it is the first area where we find no record to help us in our decision.

Mr. Estrada is not a prolific writer. So we have no real record of writing to examine. Again, this alone would not be dispositive, but it is strike 2 in terms of where we can get information about this nominee.

We have not been granted access to the memos he wrote at the Department of Justice. So we can only take the word of the man who supervised him that those memos were ideologically driven and that he could not be trusted.

Elena Kagan has never been a judge. She is not a prolific writer. We have not seen her internal memoranda and correspondence from when she was Solicitor General.

And so we see in the L.A. Times yesterday:

Sen. Dianne Feinstein (D-Calif.) called Kagan’s lack of judicial experience “refreshing,” . . .

Wow. Just wow. Meet Dianne Feinstein. Unprincipled partisan hack.

The High Court's four liberals are holding out to overturn Heller.

Today's WSJ editorial:

Justice Stephen Breyer, joined by Sonia Sotomayor and Ruth Bader Ginsburg, even did a rare turn as a states' rights advocate, noting that incorporation will curtail the ability of states to craft their own gun laws. This problem doesn't seem to bother Justice Breyer or the other liberals when they overturn state laws based on a "right to privacy" that, unlike the Second Amendment, is mentioned nowhere in the text of the Constitution.

All of this suggests that the liberals have decided to bide their time and wait for a fifth vote so they can overturn both Heller and McDonald. This means that the matter of Second Amendment rights is far from settled, and the National Rifle Association and other advocates had better keep their legal guard up. ...

As for Ms. Kagan and gun rights, as a clerk to former Justice Thurgood Marshall, she declared herself "not sympathetic" to a Second Amendment case similar to the issue in Heller. As an aide in the Clinton White House, she advocated aggressive gun control regulations. Despite yesterday's welcome extension of gun rights to the states, the liberal effort to make the Second Amendment a second-rate right is a long way from over.

Democrats, Kagan, and the Second Amendment

From Roger Pilon:

Today Politico Arena asks:

What are the political implications for Democrats and for the Kagan hearings of today’s Supreme Court gun decision?

My response:

The Supreme Court’s decision today that the Second Amendment applies against the states cannot be helpful to Democrats in the upcoming elections or to Elena Kagan in her confirmation hearings. Most Court-watchers expected the decision to come out as it did, yet the dissent by the Court’s four liberals speaks volumes. How could other rights in the Bill of Rights be good against the states, but not this right? Given the quality of their argument, the conclusion that the Court’s liberals are picking and choosing their rights on political grounds is inescapable.

This last part cannot be stressed enough. There was a left/right consensus for incorporation. The liberal wing of the court completely ignored this consensus out of pure animus towards the right of armed self defense, Constitution be damned. Republican senators would do well to hammer Kagan on this point over and over again.

Dionne: Progressive Judging Means Always Ruling Against Corporations

E.J. Dionne has a column out today that is completely intellectually void. His argument boils down to: 1) corporations are bad; 2) the Supreme Court should always rule against them; 3) that is true Progressive judging.

One thing oddly missing from Dionne's columns is any discussion of the law. It is all a discussion of which party should win. The people, whatever that even means, are good and corporations, including Exxon!!!, are bad. That should be the end of discussion according to Dionne. No actual discussion of any cases. No critique of any opinions. Just pure identity politics. If this wasn't written by such a prominent progressive columnist, I would have confused it with a satirical take on the progressive judicial philosophy.

There is also a lot of handwringing about corporate influence, which is a bit ironic considering the corporatism being practiced by the current, progressive occupier of the White House. But I will leave that critique for another day.

Gun Decision & NRA Gag Order

Statement of CFJ Executive Director Curt Levey:

Today’s landmark Supreme Court decision in McDonald v. Chicago, extending gun rights to the state and local level, reminds gun owners of the profound impact Elena Kagan will have on their Second Amendment rights if she’s confirmed. Today’s decision completes the shift of the guns rights battle from the legislatures to the courts, mirroring the seismic shift in the abortion rights battleground following Roe v. Wade. Because of McDonald and District of Columbia v. Heller, the Court’s 2008 decision recognizing the Second Amendment as an individual federal right, the scope and shape of gun restrictions is now in the hands of the courts. As a result, Second Amendment rights hang on the selection of Supreme Court Justices.

The NRA has been somewhat slow to adapt to this shift, understandably so given its long history of success in the legislative arena. Despite the NRA’s concerns about Sonia Sotomayor’s gun rights record – concerns confirmed by her vote today in McDonald – the NRA did not publicly oppose her confirmation last summer until after the release of a letter of opposition signed by 14 members of the NRA board and the heads of five NRA state affiliates. Nonetheless, the NRA’s eventual opposition was key to making gun rights the most prominent and influential issue in the final month of the Sotomayor confirmation fight.

This summer, people have been asking why NRA board members have not spoken out about Kagan’s even worse Second Amendment record. The explanation CFJ has been hearing from board members was confirmed yesterday by Erick Erickson’s reporting at RedState:

“Internal Senate emails confirmed by NRA Board Members show that the National Rifle Association’s management team has explicitly and directly told the NRA’s board they are prohibited from testifying about second amendment issues during the Elena Kagan confirmation hearings. … [and] from coming out against Kagan in their individual capacity.”

The gag order, issued months ago in anticipation of the current Supreme Court vacancy, was a reaction to the NRA’s concern about having its hand forced last summer.

Unlike other leading gun rights groups, including the Second Amendment Foundation and Gun Owners of America, the NRA had been silent on Kagan. But that changed on Friday. While stopping short of opposing Kagan for now, the NRA did issue a statement critical of her. Erickson says the statement came “after the internal Senate email began leaking out.” But whatever the reasons behind it, the statement summarized the reasons gun owners should be concerned about Kagan:

“What we've seen to date shows a hostility towards our Right to Keep and Bear Arms, such as her role in developing the Clinton Administration's 1998 ban on importation of many models of semi-automatic rifles; her note mentioning the NRA and the Ku Klux Klan as ‘bad guy’ organizations; and her comment to Justice Marshall that she was ‘not sympathetic’ to a challenge to Washington, D.C.'s handgun ban.”

The statement’s mention of Kagan’s “involvement in formulating anti-gun policies at the Clinton White House” is particularly significant, since Clinton’s gun policies earned him an ‘F’ rating from the NRA. Other examples of Kagan’s White House work not mentioned in the brief statement include supporting stronger gun-show regulations and trigger lock mandates, lending assistance to municipal lawsuits against gun manufacturers, and plotting ways to get around a Supreme Court decision holding that the feds cannot force state and local law enforcement to conduct background checks on gun buyers.

It remains to be seen whether the NRA will formally oppose Kagan’s confirmation before the Judiciary Committee and full Senate vote on her. I hope so. Having opposed Justice Sotomayor and announced the scoring of her confirmation vote last summer, doing less this summer will be interpreted as NRA acquiescence in Kagan’s confirmation.

I am not unaware of or completely unsympathetic to the political calculations holding the NRA back. However, in light of the NRA’s recent negotiation of a special carve out in the DISCLOSE Act, the controversial campaign finance bill, the NRA needs to be sensitive to putting politics above principle.

To be fair, NRA CEO Wayne LaPierre has a point when he explains the carve out: “If we don't have our speech rights, it would mean the end of the Second Amendment.” But in dealing with the Kagan nomination, LaPierre needs to be equally aware that the shift of a single vote on the Supreme Court would even more surely doom the Second Amendment. Moreover, if the DISCLOSE Act becomes law, the fate of its crackdown on free speech will be decided by the Supreme Court. And in Supreme Court decisions, there are no opportunities to negotiate carve outs.

The NRA can argue that, with the exception of Sotomayor, judicial nominations are simply outside their traditional agenda. But that begs the question of how to adapt to the change wrought by McDonald and Heller. And most importantly, if the NRA can venture beyond its traditional agenda into the First Amendment issues implicated by the DISCLOSE Act, surely it can weigh in on the Second Amendment issue of Elena Kagan’s gun rights record.

The focus should not be on criticizing the NRA for what it hasn’t done about the Kagan nomination so far. In fact, the NRA’s incredible contribution to the preservation of Second Amendment rights and its legendary influence on legislators, particularly moderate Democrats, is precisely the reason why the NRA’s enthusiastic involvement in this nomination is so important. Instead, the focus should be on how the NRA can make a difference in the remaining weeks of the Kagan confirmation process. Specifically, the NRA can make a big difference – putting Kagan’s confirmation in doubt and/or sending a strong message to the White House about nominating anti-gun judges – by formally opposing her confirmation, announcing it will score the confirmation vote, and vigorously lobbying swing senators.

At the very least, vigorous opposition to Kagan would go a long way to repairing the damage done to the NRA’s reputation among conservatives by the DISCLOSE Act carve out.

Martin Ginsburg, justice's husband, dies

Thoughts and prayers go out to Justice Ginsburg and her family and friends.

Kagan Press Conference

This Thursday, the Committee for Justice and nine other organizations gathered on the steps of the U.S. Supreme Court to voice their concerns about Supreme Court nominee Elena Kagan. Below are links to videos of two of the participants’ remarks, as well as this summary of the press conference by the Associated Press:

“[C]onservative activists are making it clear they expect Republicans to question Kagan sharply, with some insisting that they move to block a vote to confirm her -- something GOP senators have so far shown little inclination to do.

‘We've seen enough to give us a long list of concerns,’ said Curt Levey of the Committee for Justice, who gathered conservative activists outside the Supreme Court on Thursday to criticize Kagan's positions on topics ranging from gun rights to free speech and affirmative action.

Mario Diaz of Concerned Women for America called Kagan's record one ‘of a liberal political soldier -- not an impartial jurist,’ and said his group was urging senators to vote ‘no.’

Tommy Sears of the Center for Military Readiness said Kagan should be blocked from a confirmation vote based on her position on military recruitment at Harvard Law School.

Kagan's judgment in that episode ‘certainly calls into question what she would do with regard to other military issues and judicial deference with regard to military issues,’ Sears said.”

Videos of remarks by:

Curt Levey, Executive Director, Committee for Justice

William Saunders, Senior VP of Legal Affairs, Americans United for Life

The Left's Respect For Right of Armed Self Defense

"The [Chicago] City Council could consider new gun control measures as soon as Wednesday if the U.S. Supreme Court overturns Chicago's longstanding handgun ban Monday, Mayor Richard Daley said. ...

'We already have our plans, but we have to wait for the decision just in case they have said something differently in the decision,' Daley said when asked if the City Council will have a proposal to act on at Wednesday's meeting."

George Will: A few 'vapid' questions for Kagan

From Will's latest column:

-- The government having decided that Chrysler's survival is an urgent national necessity, could it decide that Cash for Clunkers is too indirect a subsidy and instead mandate that people buy Chrysler products?

-- If Congress concludes that ignorance has a substantial impact on interstate commerce, can it constitutionally require students to do three hours of homework nightly? If not, why not?

-- Can you name a human endeavor that Congress cannot regulate on the pretense that the endeavor affects interstate commerce? If courts reflexively defer to that congressional pretense, in what sense do we have limited government?

-- In Federalist 45, James Madison said: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite." What did the Father of the Constitution not understand about the Constitution? Are you a Madisonian? Does the doctrine of enumerated powers impose any limits on the federal government? Can you cite some things that, because of that doctrine, the federal government has no constitutional power to do?

Hank Johnson: We need to pass the DISCLOSE Act to stop Republicans from winning elections

This is the rationale behind restricting free speech and overturning Citizens United. So much for "Congress shall make no law..."

Tomorrow's Kagan Press Conference

WHAT: Press Conference on Elena Kagan’s Record and Judicial Philosophy

WHEN: 11:00 a.m., Thursday, June 24, 2010

WHERE: In front of the West Facade of the U.S. Supreme Court, 1 First Street, NE, Washington, DC 20543

WHO:
Curt Levey, Executive Director, Committee for Justice, discussing Kagan’s Second Amendment record

David Norcross, Chair, Republican National Lawyers Association (and former RNC General Counsel), discussing Kagan & campaign finance reform

Roger Clegg, President and General Counsel, Center for Equal Opportunity, discussing Kagan & affirmative action

Mandi Campbell, Legal Director, Liberty Center for Law and Policy, discussing Kagan & religious liberty

Colleen Holmes, Executive Director, Eagle Forum, discussing Kagan & foreign law

Mario Diaz, Policy Director for Legal Issues, Concerned Women for America, discussing Kagan’s gay rights agenda

Tommy Sears, Executive Director, Center for Military Readiness, discussing Kagan kicking military recruiters off campus because of “Don’t Ask Don’t Tell”

Phillip Jauregui, President, Judicial Action Group, discussing Kagan’s judicial philosophy & her judicial heroes

Jordan Marks, Executive Director, Young Americans for Freedom, discussing Kagan’s troubling record on students’ rights

William Saunders, Senior Vice President of Legal Affairs, Americans United for Life, discussing Kagan & life issues

CONTACTS: For more information, contact Phillip Jauregui at (205) 249-6116, or Curt Levey at (202) 270-7748.

Kelo: Five Years Later

Today marks the fifth anniversary of the Kelo decision. The Institute for Justice produced a video to mark the occasion and document the advances made following the horrendous decision.

Kagan: The Bork Hearings Were the Best Thing That Ever Happened to Constitutional Democracy

Kagan: Guns & Withheld Documents

Statement of CFJ Executive Director Curt Levey:

Given the completion of the Clinton Library’s release of Elena Kagan documents on Friday – with the notable exception of the withheld documents discussed below – it is time to assess what those documents tell us about Kagan. Combined with the memos Kagan wrote while clerking for Supreme Court Justice Thurgood Marshall, the documents reveal a woman whose legal analysis is colored by her liberal ideology and personal policy preferences. However, the documents also contain some exceptions to this rule, hinting that there are some legal issues on which Kagan will not always be predictable. Unfortunately for gun owners, the Second Amendment is not such an issue.

When it comes to firearms, Elena Kagan’s liberal bias stands out again and again throughout the documents. The Second Amendment consistently plays second fiddle to gun control in Kagan’s analysis across issues such as gun-show regulations, trigger lock mandates, the Brady Bill, municipal lawsuits against gun manufacturers, the Congressional ban on assault weapons, an executive order banning semiautomatic weapons, use of executive agencies to push gun safety, use of state and local police to conduct background checks, and even the fundamental question of whether individuals have any Second Amendment rights. It is no wonder that Bill Clinton, the most pro-gun control President in American history, put Kagan in charge of gun policy.

Due to the late release of the Kagan documents, completed – sort of – six weeks after her nomination and just one week before her hearings, gun owners are just beginning to focus on how bad she is on Second Amendment issues. But their focus will be sharpened any day now, when the Supreme Court reminds gun owners of the profound impact Kagan can have on their Second Amendment rights if she’s confirmed. By month’s end, the Court will decide McDonald v. Chicago, a landmark Second Amendment case in which the Justices will answer the question of whether gun rights are protected at the state and local level.

The answer will almost surely be yes – if only by a narrow 5-4 margin – thus completing the shift of the guns rights battle from the legislatures to the courts. That shift was begun by District of Columbia v. Heller, the Supreme Court’s 2008 decision recognizing the Second Amendment as an individual right on the federal level.

The shift to the courts means that Second Amendment rights hang on the selection of Supreme Court Justices. “As with other ideologically charged issues in the hands of the courts, the future of gun rights depends as much on the composition of the federal bench as on the strength of the legal arguments,” as I noted in an October 2009 op-ed. And gun owners know it. As a result,

“The political dynamics of nominating and confirming judges has been forever altered. … [T]he new, gun-owning gorilla in the [judicial confirmation process] matches the pro-life movement in numbers and surpasses it in ability to influence moderate Republican and Democratic senators.”

Withheld Documents

The bad news in Friday’s document dump is that representatives of President Clinton and the White House decided to withhold about 1000 pages of Kagan emails from even the Judiciary Committee – not just the press and public – because of “privacy” concerns. Disturbingly, that makes well over 1500 pages that are being withheld from the Committee on that basis.

It is hard to fathom how that many pages could be legitimately withheld from Committee members for “privacy” reasons. That leaves incompetence – Politico reports on “evidence in the documents that the privacy restrictions were being inconsistently applied” – or a bias against release or something more malevolent as the likely reasons for the large amount of information withheld.

None of these explanations are acceptable, especially since the Library will not specify whose privacy is being protected. Are documents being withheld because they would be embarrassing to President Clinton or a third party – an arguably legitimate reason – or because they would be embarrassing to Elena Kagan – a reason at odds with the goal of thoroughly scrutinizing her record before confirming her to a lifetime seat on the Supreme Court?

Given the overriding importance of thorough scrutiny, a fair compromise would be to allow Committee members to view the documents in camera – that is, in a room where they could see but not copy or leave with the documents. Unfortunately, there is not much reason to expect Senate Judiciary Chairman Patrick Leahy to demand or the White House and President Clinton to agree to a compromise.

Thus, barring a pleasant surprise, a thorough review of Kagan’s record will not be possible unless Republican senators resolve to use the filibuster or similar procedures in the Judiciary Committee to ensure that Kagan is not confirmed without a solution to the missing pages problem. The GOP’s procedural options are outlined in my June 1 statement. Additionally, in today’s Roll Call, Professors Mark Rozell and Mitchel Sollenberger echo my call for a filibuster to ensure full release of the Kagan documents.

Kagan's Selective Outrage

The Washington Times contrasts Kagan's positions on military recruiters and accepting money from a Saudi prince and finds that she is a bit selective with her moral outrage, especially when money is involved.

Ms. Kagan apparently made no public objection to a $20 million gift from a Saudi prince in late 2005, even though Saudi Arabia's shariah law provided flogging or death as punishment for any individual caught engaging in homosexual activity. College lecturer Richard Cravatts captured the controversy at the time in Harvard Law's independent newspaper when he wrote that the school should not be accepting millions from "a member of the ruling family of a repressive, totalitarian, sexist theocracy."

Mr. Cravatts cited the "moral irony" of the school taking the money while at the same time pursuing Ms. Kagan's policy of denying military recruiters access to the official campus Office of Career Services. Ms. Kagan took this action in protest of the "Don't Ask, Don't Tell" policy that she called a "moral injustice of the first order." The move openly defied a specific act of Congress known as the Solomon Amendment. Ms. Kagan later joined in a brief to the Supreme Court on the question and was shot down 8-0.

Mr. Sessions blasted the hypocrisy in a statement. "Don't Ask, Don't Tell was created and implemented by President Clinton," he said. "Where was her outrage during the five years she served in the Clinton White House? ... Instead of taking a stand in Washington, Ms. Kagan waited until she got to Harvard and stood in the way of devoted, hardworking military recruiters." She did so "in clear, open defiance of federal law."

The editorial concludes:

Ms. Kagan takes offense at a legal policy of this country, but remained silent about a far harsher policy that happened to be of great benefit to her employer. A lawyer who stands on principle - except when money is involved - has no place on the Supreme Court.

Ask the Wrong Question, Get Some Meaningless Answers

Ed Whelan dissects the way the Kagan nomination is being framed by National Journal. National Journal asked whether "it be politically smart for Republicans to try to block the confirmation of Elena Kagan?” Whelan is less than impressed with the question.

I’m not quite sure what the question is supposed to mean, but given the fact that it’s a safe bet that the 59 Senate Democrats will give Kagan the majority support that she needs to be confirmed, I’d interpret the question as asking whether Republicans should try to filibuster the nomination (since that would offer the only prospect of “block[ing] the confirmation”). But no one, so far as I can tell, is seriously contemplating a filibuster effort. And, as I’ve said repeatedly, I oppose the filibuster of judicial nominees. So I would have answered “no” to the question. Is it, then, really meaningful that 76% of the “GOP insiders” who participated in the poll answered “no”?

A better question would have been, “Would it be politically smart for Republicans to use the confirmation process for Elena Kagan to highlight differences between the parties on the proper role of the Supreme Court? I’d submit that the Sotomayor confirmation process demonstrates that the right answer to that question is a resounding “yes.”

I would also extend the logic in the title to GOP senators when it comes time to question Kagan. "Clauses, not cases" should be the GOP's theme.

Did Kagan Compare the NRA with the KKK?

From National Review:

National Review has learned that in 1996, Kagan apparently tied the NRA to the KKK — yes, the KKK — while debating the Clinton administration’s position on a bill.

The bill in question was the Volunteer Protection Act, which, when it was passed and signed the following year, protected some non-profits’ volunteer workers from tort liability in certain cases. The administration worried that it would apply to volunteers from unlikable non-profits.

Two documents discovered at the William J. Clinton Presidential Library and obtained by National Review suggest that Kagan was involved in these discussions. One does not contain her name, but the handwriting appears to be hers. (You can see an example of Kagan’s handwriting here.) It has the name of administration colleague Fran Allegra at the top, and lists two “Bad guy orgs” that might be covered — the NRA and the KKK.

The second does have Kagan’s name on it; it is a memo from Allegra to Kagan. Allegra reports that he checked the IRS’s “Cumulative List of Organizations Described in Section 170(c)” — the list of tax-exempt organizations, which, he says, are the only organizations the bill would cover — and that neither the NRA nor the KKK was on it. “If you have other names you want me to run down in the Cumulative List, I would be glad to check them out,” he adds, suggesting that Kagan requested the initial check of the NRA and the KKK.

A Temporary Victory for Free Speech

The DISCLOSE act has been pulled by Pelosi, for now.

Stop the Beach Renourishment v. Florida Department of Environmental Protection Round-Up

Big property rights case decided today. History of the case here.

Ilya Somin:

In sum, we know that at least six justices believe that at least some judicial takings are unconstitutional (even if only under the Due Process Clause). We don’t, however, know much about what the relevant standards are. If Justice Kennedy turns out to be the key swing voter, it’s quite possible that state courts will get a lot of deference, since only “arbitrary and irrational” judicial deprivations of previously established property rights would be overturned. However, I’m far from certain that I’m interpreting Kennedy’s vague statements correctly.

Property rights advocates avoided the worst-case scenario: a Supreme Court ruling holding that there is no such thing as a judicial taking that requires compensation under the Constitution. Whether they have won anything more than that remains to be seen. As Ben Barros at Propertyprof Blog puts it, “we will see a lot of litigation on these issues in the near future.”

Ilya Shaprio:

While the Court’s 8-0 ruling against the Florida oceanfront (now ocean-view) property owners was not the result we wanted, the part of the decision that was unanimously unfortunate turned on a narrow and probably mistaken interpretation of state property law. Much more importantly, the remainder of Justice Scalia’s opinion makes clear that judicial takings are just as much a violation of the Fifth Amendment as any other kind. “If a legislature or a court declares that what was once an established right of private property no longer exists,” Scalia writes for a four-justice plurality, “it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation.” And the test for whether the government—any part of it—has committed a taking turns on “whether the property right allegedly taken was established.”

Tim Sandefur:

Today’s decision gives hope to millions of American property owners whose right to their homes, businesses, and other property is often at the mercy of judges who are willing to totally rewrite the law to expand government at their expense.

The Most Important Judicial Nomination You Never Heard Of Set For Vote Today

That is according to Legal Insurrection blogger and Cornell law professor Will Jacobson. He points to a story in The Providence Journal.

A major business group has stepped up its opposition to President Obama’s nomination of John J. McConnell Jr. to the U.S. District Court in Rhode Island, calling him “unfit to serve this lifetime appointment to the federal bench.”

On the eve of the Senate Judiciary Committee’s debate on the McConnell nomination, the U.S. Chamber of Commerce alerted senators that their votes on whether to seat him could become part of the organization’s influential scorecard on members of Congress.

“Mr. McConnell’s actions during his career as a personal injury lawyer and past statements demonstrate his disregard for the rule of law, an activist judicial philosophy and obvious bias against businesses,” R. Bruce Josten, the Chamber’s chief lobbyist, said in a letter Tuesday to committee members that was released Wednesday morning. ...

The consideration of McConnell’s nomination is playing out against a partisan backdrop. The Providence lawyer, 51, is a longtime state Democratic official, a major contributor to the party and a leading plaintiffs’ lawyer. He has given more than $432,000 to federal election campaigns over the years, including those of Whitehouse and Jack Reed. That appears to make him the top donor to federal campaigns among the nearly 1,500 nominees to U.S. courts since 1988. Only three other nominees during those years appear to have given as much as $100,000, according to a Providence Journal analysis of federal contributions.

Impasse Over Kagan Documents

CFJ Executive Director Curt Levey on today’s release of Kagan documents:

“Today’s installment of Clinton Library documents will likely exacerbate rather than assuage the concerns of Judiciary Committee members that they will not be able to conduct a thorough review of Elena Kagan’s record before her hearings begin June 28. Both the volume and content of today’s document dump falls short of what senators need and hoped for.

“National Archives spokeswoman Susan Cooper had already warned that today’s release would not include the nearly 80,000 pages of e-mails written by or to Kagan, precisely those documents most likely to shed light on Kagan’s views. Except for the occasional e-mail that Kagan printed out, today’s document dump and the one last Friday consist largely of documents authored by other people, interesting only for the few comments Kagan wrote on them.

“This Wednesday, Judiciary Committee ranking member Jeff Sessions emphasized the importance of delivering all the Clinton Library documents by today, in order to leave two weeks for thorough review before Kagan’s hearings – not to mention leaving time for the inevitable tug of war over whatever documents the Library refuses to release. Instead, the roughly 40,000 pages released today plus the 46,000 released last Friday amount to only half of the more than 160,000 pages requested by the Committee.

“Because Kagan lacks a judicial record and has produced little in the way of scholarly writing, she bears ‘the burden of proof’ in demonstrating that she is fit for the nation’s highest court, as Sen. Kyl noted this week. Allowing time for a thorough review of the Library documents is a necessary part of meeting that burden.

“So Judiciary Committee leaders are at an impasse. Sen. Sessions’ deadline of today will pass with half the Clinton documents still missing. That would seem to trigger Sessions’ repeated commitment to demand postponement of the June 28 hearings if Committee members don’t have adequate time to review the documents. But Judiciary Chairman Patrick Leahy has dismissed the possibility of a postponement and his legendary stubbornness makes it unlikely he will change his mind. Thus the impasse.

“One can imagine only two scenarios in which Leahy would agree to delay the hearings. One is where President Obama, perhaps concerned about criticism of his Administration’s lack of transparency, agrees that full disclosure of Kagan’s record is needed before hearings begin. That’s a long shot.

The other scenario, which I outlined last week, requires Republican senators to make it clear that they will use one of a number of procedures in the Judiciary Committee or on the Senate floor to ensure that Kagan is not confirmed without a thorough vetting of her record. That would negate the incentive for Leahy to rush the hearings.”

The Myth of a Conservative Court and Why Liberals Peddle It

That is the title of an upcoming event being hosted by the Heritage Foundation. The details:

Following President Obama’s unseemly attack on the Supreme Court’s ruling in Citizens United v. FEC during this year’s State of the Union address, a chorus of liberals, including Obama’s press secretary, congressional Democrats, and a number of liberal activist organizations, have mimicked the claim that the Supreme Court is controlled by “conservative activists.” Is there any merit to this claim? Is “activism” just in the eye of the beholder, and thus, impervious to proof or refutation? Or is it a sign of liberal vulnerability to the charge of left-wing activism that they are trying to ascribe their activist ways to others? What is the political and legal significance of this coordinated liberal campaign to change the Court’s public image? Is the Left trying to hoodwink journalists into propagating a moral equivalency between different judges that does not exist? In sum, what are the stakes of this debate and what does each side have to win or lose? Our scholarly panel will address these and other important questions.

RSVP at the link. At always, the event will be webcast.

What is Judicial Activism?

From the Federalist Society.

With the nomination of Elena Kagan to the U.S. Supreme Court, there is a great deal of discussion about the proper role of the courts in general, and "judicial activism" in particular. But what, precisely, is judicial activism? Is the term useful in discussing the decisions of the Court? Is the term invoked unfairly or unevenly by critics of the Court from all sides? Is there a more useful term? These and other questions will be addressed by our panel of experts.
Featuring:

Prof. Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center

Dean Erwin Chemerinsky, Founding Dean, University of California, Irvine School of Law

Prof. Pamela S. Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law and Co-Director, Supreme Court Litigation Clinic, Stanford Law School

Mr. M. Edward Whelan III, President, Ethics and Public Policy Center

Moderator: Dr. John Eastman, Candidate for California State Attorney General and former Dean, Chapman University School of Law

Souter's Judicial Philosophy Supports Plessy?

There has been a lot of praise heaped on Justice Souter's recent commencement speech. E,J. Dionne called it "the philosophical shot heard 'round the country." But did his speech, taken seriously and to its logical conclusion, actually provide support for Plessy v. Ferguson? Jason Sorens says Yes, and I agree.

In bashing the notion that judges should rule on the basis of “fair reading” of the law, Souter tries this mind-bogglingly inane reductio ad absurdum:

For those whose exclusive norm for constitutional judging is merely fair reading of language applied to facts objectively viewed, Brown [v. Board of Education] must either be flat-out wrong or a very mystifying decision. Those who look to that model are not likely to think that a federal court back in 1896 should have declared legally mandated racial segregation unconstitutional. But if Plessy was not wrong, how is it that Brown came out so differently? The language of the Constitution’s guarantee of equal protection of the laws did not change between 1896 and 1954, and it would be hard to say that the obvious facts on which Plessy was based had changed, either. While Plessy was about railroad cars and Brown was about schools, that distinction was no great difference. Actually, the best clue to the difference between the cases is the dates they were decided, which I think lead to the explanation for their divergent results.

As I’ve said elsewhere, the members of the Court in Plessy remembered the day when human slavery was the law in much of the land. To that generation, the formal equality of an identical railroad car meant progress. But the generation in power in 1954 looked at enforced separation without the revolting background of slavery to make it look unexceptional by contrast. As a consequence, the judges of 1954 found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see.

If we take what Souter is saying here seriously (which we probably should not), he is saying that Plessy v. Ferguson was rightly decided. After all, his stated view here is that judges should read the constitution in light of the values of their time (arguably, it’s even worse – a close reading of the speech suggests that he thinks judges should simply rule on the basis of their own values).

And then what about this nonsense? “To that generation, the formal equality of an identical railroad car meant progress.” O RLY? In Plessy, the Supreme Court ignored the plain language of the 14th Amendment, which prohibits states from “mak[ing] or enforc[ing] any law which shall abridge the privileges or immunities of citizens of the United States.” Prosecuting someone for sitting next to a person of color pretty clearly abridges his privileges and immunities. In Plessy, the Court was affirming the conscious and premeditated attempts of Southern state legislatures to re-establish white supremacy after Reconstruction. In doing so, they reversed an earlier decision allowing Congress to prohibit state-level segregation. There is simply no excuse for saying that Americans of that time viewed “separate but equal” as “progress.”

UPDATE: Damon Root hits a similar note.

Here’s the problem with Souter’s claims: The Plessy decision is wrong under an originalist reading of the Constitution. Originalism includes the original public meaning of the 14th Amendment, which commands: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Among those privileges or immunities is the right to economic liberty. Remember that the origins of the 14th Amendment lie in the anti-slavery politics of the Radical Republicans who drafted it and spearheaded its ratification. Their philosophy centered on a radically libertarian form of self-ownership, one that included both the right to armed self-defense and the right to liberty of contract. That philosophy was enshrined in the Constitution when the 14th Amendment was ratified in 1868.

In Plessy, the Supreme Court upheld a Louisiana law that forbid railroad companies from selling first-class tickets to black customers. That law was a blatant violation of economic liberty under the 14th Amendment and should have been struck down as such. That the Supreme Court failed to do so isn’t an indictment of originalism, it’s an indictment of the justices who failed to take the Constitution at its word.

Kagan's True Opinions Revealed?

Jan Crawford reports in CBS News that Kagan's legal memos from her days as a law clerk to Thurgood Marshall make her positions clear on some of "the nation's most contentious social issues." The documents cover "abortion, civil rights, gun rights, prisoner's rights, and the constitutional underpinnings for recognizing gay marriage." Although Kagan may say that she was merely reflecting Justice Marshall's views while writing to him, the memos are often written in the first person and take a "personal approach."

Obama may be stalling on releasing Kagan documents

The Daily Caller reports that the Obama administration has sent a "carefully worded letter" to Jeff Sessions, the ranking Republican on the Judiciary Committee, in response to Sessions' letter to the White House asking why Clinton's representative was reviewing the documents alongside Obama's staff. The letter gives two reasons: 1) the documents might be requested under the Freedom of Information Act (FOIA) by the public, and 2) documents that have classified national security information or personal privacy information are not to be released.

While the letter says President Obama "does not intend" to assert executive privilege over any of the documents," it states that President Clinton has an interest in the records as well, and therefore discussing the process for resolving executive privilege claims is "premature." The letter concludes that review of these records won't prevent the the Archives from producing the documents "in advance of June 28."

Judging from what the letter does not say, it seems like the Obama administration is keeping its options open to have Clinton assert executive privilege and to release hundreds of thousands of pages of documents as late as June 27, which would leave no time for a meaningful review of what paper trail Kagan has. Does the administration know there is something in Kagan's record that would impede her confirmation?

FDR 2.0?

Mark Tushnet, guest blogging at Legal History Blog:

The basic story is simple. Roosevelt was looking for justices who would uphold the New Deal's major initiatives or, more generally, who held expansive views of the scope of the national government's powers under Article I. He was relatively indifferent to his nominees' views on issues of civil rights and civil liberties, as his nominations of Reed and, later, James Byrnes show. ...

I mentioned Elena Kagan in this post because my sense -- based on no inside information, of course -- is that her selection reflects a strategic calculation by President Obama similar to FDR's. What the President wants is a Supreme Court that will stand aside when or if Congress enacts the programs the President favors, and is relatively indifferent to his nominees' views on other questions. Put pretty crudely, SG Kagan hasn't been vetted for her views on what we might call "Warren Court" (or "Brennan-Marshall") issues (other than the scope of national power) -- which may be why some on the liberal-left side of the spectrum are nervous about what she would do as a Justice dealing with those issues. (A minor point that I haven't seen made elsewhere: Even assuming all the somewhat critical things some have said about the way she structured her career, her first career choice was to decide who to clerk for on the Court of Appeals. Again, assuming that she wanted to get a Supreme Court clerkship, when she made her choice there were a number of "feeder" judges, some quite liberal, some less liberal, some conservative, and some extremely conservative. She chose to clerk for Abner Mikva, about as liberal a feeder judge one could have found when she made her choice. I for one (to use a locution favored by the Justice she clerked for) think that provides some indication of her views on Brennan-Marshall issues.)

McDonald's Real Life Implications

From Jeremy Lott:

Talk about your inconvenient truth. Five days after Chicago Mayor Richard Daley had held a press conference touting the benefits of the city's handgun ban by brandishing a rifle with a bayonet and -- I swear I am not making this up -- cracking a joke about shoving it up a reporter's bum, an 80-year-old man on the West Side of Chicago traded gunfire with a burglar, killing the intruder.

For advocates of gun control, the optics on this story are just awful. It's nearly impossible to drum up any sympathy for the deceased, Anthony Nelson, who had a long history of drug and weapons convictions and was on probation. He attempted to break into the house, brought a gun with him, and fired twice at the so-far unnamed homeowner.

Conversely, it is impossible to fault the homeowner. The man who killed Nelson was a veteran of the Korean War. He fired only one shot and got the intruder in the chest. On that morning, the man was protecting not just himself but his wife and a 12-year-old great grandson who was staying over. A son told reporters "My father had no choice. It was him or the other guy."

Things only get worse. The old man moves slowly, with the aid of a cane. He reportedly acquired the illicit gun only after a previous incident, when the couple were robbed at gunpoint in their home by three intruders. Lastly, an ironic political detail, courtesy of the Sun-Times: "When he returned home, the man...wore a T-shirt emblazoned with President Obama's face and name." Talk about audacity.

Filibuster Can Counter Kagan Document Delay

CFJ Executive Director Curt Levey on the nomination of Elena Kagan:

“With Judiciary Committee hearings for Supreme Court nominee Elena Kagan set to begin in less than four weeks, Senate Republicans should be giving serious consideration to how they will prevent the ‘train wreck’ that Ranking Member Jeff Sessions says will result if the hearings are held before the committee has ‘a reasonable time to examine’ documents from Kagan’s four years in the Clinton Administration. Given Kagan’s otherwise thin record, even she has acknowledged that the 168,000 pages of documents will provide ‘invaluable insight into how she would approach her job as a member of the Supreme Court’ (Sen. Cornyn commenting on his meeting with Kagan).

“Because the Obama Administration must have reviewed most or all of the 168,000 pages while vetting Kagan twice for the Supreme Court and once for Solicitor General, the documents should be organized and easy to release. Nonetheless, Senate Republicans have to take the Clinton Presidential Library’s director at her word when she says that it will be ‘very difficult’ to produce the material in time for the June 28 hearings, no less in time to allow a thorough review. Since Judiciary Chairman Patrick Leahy has so far refused to consider the possibility of delaying the hearings, a train wreck would seem to be all but inevitable unless GOP senators make it clear that they are willing to use the procedures available to them to ensure that Kagan is not confirmed without a complete release and adequate review of her records.

“While Republicans on the Judiciary Committee could boycott the Kagan hearings in protest, there is little they can do to directly prevent the hearings from going forward on June 28 if Leahy refuses to budge. However, two different Judiciary Committee rules give Republicans the power to block the committee’s vote on Kagan. Rule 3 requires that ‘at least two Members of the minority’ be present for the committee to have ‘a quorum for the purpose of transacting business.’ Rule 4 allows a filibuster of sorts in committee, because at least one minority vote is required to overcome an ‘objection to bring [a] matter to a vote without further debate.’

“Republicans can use either rule in a principled way in this situation. Nomination hearings are followed by one or more rounds of written questions for the nominee before the committee votes. GOP committee members would be well within their rights to insist that the written questions for Kagan can’t be meaningfully completed until the committee has had time to thoroughly review her entire record.

“Of course, Republicans’ use of Rules 3 or 4 assumes that Chairman Leahy will respect his committee’s written rules, which were affirmed at the beginning of this Congress. Insiders say it is unclear whether he would do so. If Leahy chooses to ignore the rules, the Democratic majority will undoubtedly vote Kagan out of committee.

“In that case, Republicans should filibuster Kagan’s nomination when it reaches the floor. Again, it should be done in a principled way – that is, not to prevent a confirmation vote but to delay one only as long as is necessary to allow a complete review of Kagan’s Clinton Administration records. GOP senators who have denounced the filibuster as a tool for obstructing judicial nominees can hold their heads high by using it to ensure a fully-informed debate of Kagan’s nomination. In fact, the Gang of 14’s ‘extraordinary circumstances’ standard for filibustering judicial nominees – the only bipartisan standard we have – presupposes that the nominee’s record has been examined thoroughly enough to know if extraordinary circumstances exist.

“Short of Democrats turning to the ‘nuclear option’ rejected in the Gang of 14 deal, a filibuster on the floor gives the GOP a surefire way to ensure that Elena Kagan is not confirmed to a lifetime Supreme Court appointment before the review of her record is completed. A successful filibuster would require all 41 GOP senators to remain united, unless principled red state Democrats cross the aisle. The good news is that procedural issues of fair play are precisely the ones on which Senate Republicans most often unite.

“Our hope is that neither a filibuster nor the use of Judiciary Committee Rules 3 or 4 will ultimately be necessary. If Republican senators signal early on that they are committed to doing whatever it takes to ensure the thorough vetting of Kagan’s record, Leahy may be convinced to change course. He may realize that the most sensible course of action is to delay the hearings, so that his Judiciary colleagues can ask and Kagan can answer fully-informed questions.

“Short of President Obama asking Sen. Leahy to postpone the hearings – not a bad idea if Obama wants to demonstrate that he is serious about transparency -- convincing the often-defensive Leahy will not be easy. Whatever excuses Leahy cites to justify premature hearings, he should be reminded that there is no downside for the nation if the hearings are delayed. Even if the hearings were put off until August, there would still be plenty of time to confirm Kagan before the start of the next Supreme Court term in October. While it is possible that Leahy is rushing the Kagan nomination in light of speculation that Justice Ginsburg will retire later this summer, even the current June 28 hearing date would not allow a second Supreme Court Justice to be confirmed in time for the new term.”

Kagan Roundtable

Dahlia Lithwick, Randy Barnett, and Geoffrey Stone discuss the nominee.