Arizona, Kagan & Race at DOJ

Statement of CFJ Executive Director Curt Levey:

Today’s ruling by U.S. District Judge Susan Bolton blocking the core provisions of Arizona’s immigration law reminds Americans of what’s at stake in the Elena Kagan confirmation fight. It also gives the Obama Administration an opportunity to counter the increasing suspicion of race-related politicization at the Justice Department.

An initial reading of Judge Bolton’s opinion, issued earlier this afternoon, reveals it to be weak on both legal analysis and deference to the fact-finding, policy determinations, and judgment of the people of Arizona’s duly elected representatives. In other words, her opinion is yet another example of the decades-long trend that has seen the courts assume the role of policy makers, becoming the ultimate arbiters of the great social issues of the day, from abortion to gay marriage and now immigration. Call it “judicial activism” or whatever you like, but it is a dramatic departure from the role of judges during most of America’s history, during which the great social issues of the day were decided by democratically elected legislatures at the state, local and federal levels.

The anti-democratic nature of expanded judicial power is made worse by the fact that the policy pronouncements of the courts are typically in line with elite opinion and at odds with public opinion. There are few better examples than Judge Bolton’s ruling today. If public opinion in Arizona and elsewhere didn’t favor a crackdown on illegal immigration, the opponents of the Arizona law would be running to the statehouses instead of the courts.

Like it or not, it’s a given these days that the most controversial social issues will ultimately be decided by the U.S. Supreme Court. That is why a senator cannot conscientiously justify a vote for Elena Kagan’s confirmation solely by referencing her intelligence and the considerable – but hardly absolute – deference that a President’s judicial picks deserve, while ignoring Kagan’s activist judicial philosophy and her liberal policy preferences.

A senator voting for Kagan should be willing to acknowledge that their vote is essentially a vote for same-sex marriage, strict gun control, partial birth abortion, racial preferences, ObamaCare, and the like. While there is little direct evidence of how Kagan will vote when the Arizona immigration law reaches the Supreme Court, there is every reason to believe she will vote to strike it down, give her admittedly liberal politics and the reality that Obama was looking for a nominee who could be counted on to uphold his Administration’s policies.

To be fair, there is a theoretical possibility that once on the Supreme Court, Kagan will rise above her policy preferences and be guided only by the rule of law. However, there is much in Kagan’s record to indicate otherwise and there is no judicial record to reassure us.

In some blue states, constituents will have little problem with their senators casting a vote for Kagan and the liberal policies she is likely to pursue on the Court. But those states are the exception. As I discussed in a recent op-ed, polls indicate that, nationwide, Kagan is on the wrong side of the American people on the leading social issues by large margins. Most Democratic senators and even some Republicans from red and purple states will nonetheless vote for Kagan and her liberal policies. But those senators should acknowledge the agenda they are voting for and be willing to be held accountable for it.

Turning to the Obama Justice Department, today’s ruling provides the Department with a chance to counter the charges of race-related politicization at DOJ that have grown out of the New Black Panther Party case, the alleged prohibition on prosecuting “reverse” racism, and the decision to challenge the Arizona immigration law before reading it. Under Judge Bolton’s broad interpretation of the Constitution’s Supremacy Clause, it is clearer than ever that the “sanctuary city” legislation enacted by localities across the nation is very vulnerable to constitutional challenge. After all, while the Arizona law at most expands upon federal law, sanctuary city legislation directly seeks to thwart federal immigration law.

Therein lies the opportunity. If the Obama DOJ decides to put politics aside and challenge sanctuary city laws with the same enthusiasm that it went after the Arizona immigration law, that decision would go a very long way to counter the charges of politicization. If, instead, the Justice Department ignores the opportunity presented by Judge Bolton’s broad reading of the Supremacy Clause and continues to acquiesce in the unconstitutionality of sanctuary cities, it will merely cement the growing suspicion that DOJ is more interested in politics than law, especially where race is concerned.

Why Republicans Shouldn't Unilateral Disarm in Fight Over Judicial Nominees

Senate Democrats regret supporting Roberts, Alito. Republicans cannot win them over by supporting their nominees. The media may fawn over Republicans that vote yes, like Sen. Graham, but it doesn't matter in the end.

There was also this little nugget, which cannot be repeated enough.

The Washington Post reported a few years ago that Obama initially wanted to vote for Roberts, but was talked out of it by his staff. Obama, reportedly impressed by Roberts’s intellect, was advised a yes vote would cripple a future presidential run. Obama subsequently voted no.

This is what the GOP is up against. Not principle. Rank partisanship. They should act accordingly.

Tea Party & Why Kagan is Unpopular

In a RedState post, CFJ Executive Director Curt Levey explains why a cartoon in today’s Washington Post accusing the tea party movement of racism is grounded in ignorance of the Constitution and the civil rights movement.

And in an op-ed at the Daily Caller, Levey explores the reasons why public support for Elena Kagan is at a historical low for a Supreme Court nominee headed for confirmation. He argues that Kagan’s unpopularity has much to do with her positions on the issues that dominate the public debate about her nomination. On these issues – gun rights, gay rights, partial birth abortion, and the like – polls show that Kagan is on the wrong side of the American people by large margins. Levey concludes that “the chasm between Kagan and the American people on a host of hot-button issues presents a valuable electoral opportunity for the GOP.”

New Blog Devoted to Tracking Obamacare Litigation

For those interested in following the legal challenges as they wind their way through the courts, there is a new blog that is doing just that: aca litigation blog.

New York Times: All "Good Ideas" Are Constitutional

In an editorial defending Kagan the NYT argues in support of the broadest possible reading of the commerce clause because it empowers Congress to do "some of the best things that government has done for the better part of a century, and some of the best things that lie ahead."

Ann Althouse:

That's the argument. The Constitution should mean what it needs to mean so that we can get the things that we want from government — all those fine things that government deigns to do for us. ...

The idea that constitutional law stands apart from political preferences is nowhere to be found. I guess NYT readers aren't supposed to notice that.

Coburn: By Her Own Words, Kagan Will Violate Her Oath

Sen. Tom Coburn to vote no on Kagan.

Even more troubling was Kagan’s refusal to say whether she believed in the principle of natural rights contained in the Declaration of Independence. Kagan told me, “I don’t have a view of what are natural rights independent of the Constitution.”

While I understand a nominee’s reluctance to express personal beliefs, it was extraordinary to hear a Supreme Court nominee decline to endorse the concept of natural rights contained in the Declaration of Independence that is the very basis of our Constitution.

Kagan’s answer exposed a troubling train of thought in progressive ideology. Refusing to acknowledge natural or God-given rights removes the morality from the progressive’s moral certitude. Without natural law there would have been no Constitution. Without natural law, “progressives” would take us back to the 17th century, when rights emanated from the state or the king rather than the creator.

The Individual Mandate's Shifting Justification

Much of the debate over the constitutionality of Obamacare's individual mandate revolved around the Commerce Clause. These challenges were laughed off by much of the press and the punditocracy, not to mention many members of Congress. Well, it looks like the challenges weren't so frivolous because the administration has changed its tune. The mandate is now a tax.

Congress can use its taxing power “even for purposes that would exceed its powers under other provisions” of the Constitution, the department said. For more than a century, it added, the Supreme Court has held that Congress can tax activities that it could not reach by using its power to regulate commerce.

While Congress was working on the health care legislation, Mr. Obama refused to accept the argument that a mandate to buy insurance, enforced by financial penalties, was equivalent to a tax.

“For us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase,” the president said last September, in a spirited exchange with George Stephanopoulos on the ABC News program “This Week.”

When Mr. Stephanopoulos said the penalty appeared to fit the dictionary definition of a tax, Mr. Obama replied, “I absolutely reject that notion.”

Congress anticipated a constitutional challenge to the individual mandate. Accordingly, the law includes 10 detailed findings meant to show that the mandate regulates commercial activity important to the nation’s economy. Nowhere does Congress cite its taxing power as a source of authority.

Professor Randy Barnett takes a look at the shift over at the Volokh Conspiracy.

Now there are cases that say (1) when Congress does not invoke a specific power for a claim of power, the Supreme Court will look for a basis on which to sustain the measure; (2) when Congress does invoke its Tax power, such a claim is not defeated by showing the measure would be outside its commerce power if enacted as a regulation (though there are some older, never-reversed precedents pointing the other way), and (3) the Courts will not look behind a claim by Congress that a measure is a tax with a revenue raising purpose.

But I have so far seen no case that says (4) when a measure is expressly justified in the statute itself as a regulation of commerce (as the NYT accurately reports), the courts will look look behind that characterization during litigation to ask if it could have been justified as a tax, or (5) when Congress fails to include a penalty among all the “revenue producing” measures in a bill, the Court will nevertheless impute a revenue purpose to the measure.

Now, of course, the Supreme Court can always adopt these two additional doctrines. It could decide that any measure passed and justified expressly as a regulation of commerce is constitutional if it could have been enacted as a tax. But if it upholds this act, it would also have to say that Congress can assert any power it wills over individuals so long as it delegates enforcement of the penalty to the IRS. Put another way since every “fine” collects money, the Tax Power gives Congress unlimited power to fine any activity or, as here, inactivity it wishes! (Do you doubt this will be a major line of questioning in oral argument?)

But it gets still worse. For calling this a tax does not change the nature of the “requirement” or mandate that is enforced by the “penalty.” ALL previous cases of taxes upheld (when they may have exceeded the commerce power) involved “taxes” on conduct or activity. None involved taxes on the refusal to engage in conduct. In short, none of these tax cases involved using the Tax Power to impose a mandate.

So, like the invocation of the Commerce Clause, this invocation of the Tax Power is factually and judicially unprecedented. It is yet another unprecedented claim of Congressional power. Only this one is even more sweeping and dangerous than the Commerce Clause theory.

Kagan and Obamacare Recusal

WSJ implores the Senate to press Kagan on her role in Obamacare to determine whether she should be required to recuse herself when the inevitable challenge reaches the Supreme Court.

In response to Senate queries, Ms. Kagan has said she'll recuse herself from participating in 11 cases on which she represented the government in her current job as Solicitor General. The challenge to ObamaCare isn't one of them, though the cases brought by Florida and 20 other states were filed in March, well before President Obama announced her nomination on May 10.

Ms. Kagan was never asked directly at her hearings about her role as SG regarding the health-care lawsuits. The closest anyone came was this question from Oklahoma Republican Tom Coburn: "Was there at any time—and I'm not asking what you expressed or anything else—was there at any time you were asked in your present position to express an opinion on the merits of the health-care bill?"

Ms. Kagan: "There was not."

Regarding a potential recusal, that's not the right question. Ms. Kagan was unlikely to have been consulted on the merits of health-care policy, and even if she did express an opinion on policy this would not be grounds for recusal. The legal precedents on that are clear.

Recusal arises as a matter of judicial ethics if as a government official she expressed an opinion on the merits of the health-care litigation. This is what she would have to render a judgment on were she to be confirmed for the High Court. It is also the question on which she is likely to have participated given her role at the Justice Department.

A New Take On "If At First You Don't Succeed, Try, Try Again"

From Walter Olson:

Similarly, there are said to be internationally recognized rights to government-provided housing, day care, and even (at least in Europe) tourism.

These notions are at odds with longstanding ideas of sovereignty and national independence, as held by (among many others) the Founders of this Republic. That they could also pose more direct dangers to individual liberty is suggested by a news item that drew only passing attention a few weeks ago: Chicago Mayor and long-time anti-gun advocate Richard Daley convened an assembly on global issues at which (per the Chicago Sun-Times) he “convinced more than a dozen of his counterparts from around the world to approve a resolution urging ‘redress against the gun industry through the courts of the world’ in The Hague.” According to another local news report, Daley “said American gun manufacturers should be held responsible in the World Court, since American-made guns are used in violent crime elsewhere in the world.” Philadelphia Mayor Michael Nutter and the mayor of Mexico City were among those endorsing the idea. David Kopel at Volokh Conspiracy has much more on the conditions that would have to be met for the World Court to assert jurisdiction.

Chicago and its mayor were in the Second Amendment spotlight most recently with the McDonald case, in which the U.S. Supreme Court struck down the city’s ultra-strict anti-gun ordinance as in violation of the Bill of Rights. But the real antecedent of Daley’s latest idea was the late-Nineties litigation ginned up by anti-gun advocates and trial lawyers on behalf of three dozen cities and counties, which mostly fared poorly in court, yet still, through sheer cost-infliction, very nearly achieved its goal of off-the-statute-books gun control through litigation). That litigation campaign was decisively rejected and stopped in its tracks by Congress in the Protection of Lawful Commerce in Arms Act, signed by then-President George W. Bush in 2005. In other words, Daley is seeking an international end run around both the Bill of Rights and the democratically expressed will of the American people. Aren’t Chicago voters tired of this yet?

Veteran Slams Kagan's Hypocrisy

Ouch:

In a devastating critique, Harvard graduate student and Army Captain Pete Hegseth pointed out Kagan’s hypocrisy and “intellectual dishonesty” in blaming the military for the “Don’t Ask, Don’t Tell” policy which, he correctly points out, was imposed by civilians during the Clinton administration.

“In emails to students and statements to the press, Ms. Kagan slammed – and I quote – ‘the military’s discriminatory recruitment policy.’ Yet as a legal scholar, she knows better than that,” Hegseth testified. “She knows the policy that she abhors is not the military’s policy, but a policy enacted by Congress and imposed on the military. In fact, after the law was passed, Ms. Kagan went to work for the very man who signed ‘Don’t Ask, Don’t Tell” into law, President Clinton.”

Hegseth went on to point out that Kagan didn’t utter a peep of protest when Harvard accepted money from Saudi Arabia:

“Harvard has three academic chairs endowed by money from Saudi Arabia, a country where being a homosexual is a capital offense. So rather than confront the congressional source of the true legislation or take a stance against a country that executes homosexuals, Ms. Kagan zeroed in on military recruiters for a policy they neither authored nor emphasized.”

NRA Ramps Up Kagan Opposition

Statement of CFJ Executive Director Curt Levey:

Politico reports today that the National Rifle Association “is facing mounting criticism from influential allies on the right and even from its own board over a series of recent moves,” including “taking a cautious approach to … President Barack Obama’s judicial nominees,” most recently Supreme Court nominee Elena Kagan. In addition to consistently taking alarming positions on gun rights, Kagan has compared the NRA to the Klu Klux Klan. The NRA is apparently taking the criticism about nominees to heart, as witnessed by its debut Friday of a Kagan ad that “will be airing across the country.”

The ad uses video of Elena Kagan and Sonia Sotomayor testifying before the Judiciary Committee to remind viewers that both women recited the same carefully worded recognition of Second Amendment rights while testifying before the Judiciary Committee. Yet in the Supreme Court’s landmark Second Amendment decision last month in McDonald v. Chicago, “Sotomayor ruled exactly the opposite.” She “would have erased the Second Amendment from the Constitution,” the ad says.

Most importantly, the NRA ad concludes by urging Americans to “Call your senator. Tell them not to fall for the same trick twice.” In an e-mail announcing the ad, the NRA specifies that citizens should ask senators “to oppose and filibuster Kagan's confirmation” and explains that

“Both [Kagan’s] political career in the Clinton Administration and her testimony before the Senate Judiciary Committee make it clear that Kagan would be a serious opponent of our Second Amendment Rights.”

As we did last summer with the Sotomayor nomination, CFJ has respectfully urged the NRA to take a strong stand against the confirmation of Elena Kagan. We are encouraged that the NRA has followed up on its July 1 letter – opposing Kagan and announcing it will include votes on her confirmation in its candidate evaluations – with the debut of this ad.

Going forward, we urge the NRA to focus its efforts on senators whose votes on Kagan are in play – for example, by airing TV and radio ads in their states, lobbying them hard in Washington, and withholding endorsement in the coming election from any senator who votes to confirm Kagan. See here for our discussion of reports that the NRA is considering endorsing Senate Majority Leader Harry Reid. Note that Kagan is already an issue in several Senate races where Democratic incumbents are in trouble, including even Russ Feingold’s reelection battle in the Democrat-leaning but pro-Second Amendment state of Wisconsin.

Bad News for Reid: NRA Opposes Kagan

Statement of CFJ Executive Director Curt Levey:

The Committee for Justice commends the NRA for its letter to senators yesterday announcing that it will “oppose the confirmation of Solicitor General Elena Kagan to the U.S. Supreme Court” and score the confirmation vote – that is, include senators’ votes on Kagan “in NRA's future candidate evaluations.” In the letter, the NRA points out that Kagan “has repeatedly demonstrated a clear hostility to the fundamental, individual right to keep and bear arms guaranteed under the U.S. Constitution” and that she “repeatedly declined to say whether she agrees with the dissenting views of Justices Stevens, Breyer, Ginsburg and Sotomayor” that the Second Amendment affords no such right.

As Roll Call notes, the letter “could put pressure on a handful of moderate Democrats … to break with their party and vote against Kagan.” We hope that the NRA will maximize the impact of its letter by “working” the vote – that is, lobbying senators to vote no on Kagan’s confirmation.

Apart from the confirmation vote, the thing most affected by yesterday’s letter may be Senate Majority Leader Harry Reid’s chances of reelection in Nevada. It had been rumored that the NRA was planning to endorse Reid in his race against pro-gun Republican nominee Sharron Angle. Despite a dubious Second Amendment record, Reid’s standing with the NRA improved after he helped secure land and $60 million in funding for the world’s largest shooting range, which opened in North Las Vegas last August.

But yesterday’s letter changes the equation. If Reid votes to confirm Kagan, it is difficult to see how the NRA can go ahead and endorse him without losing face, given both the close timing and prominence of yesterday’s letter and Sharron Angle’s opposition to Kagan.

As recently as last week, the NRA was reluctant to get involved in the Kagan confirmation battle either directly or through its board members. The negative publicity and membership cancellations that resulted from its reluctance is undoubtedly part of the explanation for yesterday’s dramatic change of course.

However, the NRA letter suggests that the reasons go deeper. Following the Supreme Court’s 5-4 McDonald decision last week, the NRA is focused on the sobering fact that “four justices would effectively write the Second Amendment out of the Constitution.” The four include Justice Sotomayor, and the letter expresses particular concern that Sotomayor has taken this position despite testifying last summer that the Supreme Court's recognition of individual Second Amendment rights is "settled law". Clearly, the NRA fears that Elena Kagan, if confirmed, will repeat “Sotomayor's blatant reversal.”

Also telling is the letter’s declaration that an “individual who does not believe that the Second Amendment guarantees a fundamental right … should not serve on any court” (emphasis added). Some say the NRA was reluctant to oppose Kagan because of the long odds against stopping her. But the declaration acknowledges that this confirmation fight is about more than stopping one nominee. In the wake of the Supreme Court’s Heller and McDonald decisions, the battleground for gun rights has shifted from the legislatures to the courts. The NRA appears to recognize that this new reality brings the need for a long-term, principled commitment to opposing judicial nominees who do not respect Second Amendment rights, and to holding senators who vote for them accountable.

That leaves us hopeful that the NRA will work the Kagan confirmation vote despite the odds and will refrain from endorsing senators, like Harry Reid, who vote to confirm Kagan. In the longer term, we hope the NRA will institutionalize its recognition of the new reality by creating a permanent office or task force devoted to researching and evaluating the Second Amendment records of all federal judicial nominees, and to identifying those nominees whose records are troubling enough to warrant the NRA’s opposition.

Hatch to Vote No on Kagan

From the press release:

“I have carefully examined Solicitor General Elena Kagan’s record, actively participated in the entire Judiciary Committee hearing, and considered the views of supporters and opponents from Utah and across the country. Qualifications for judicial service include both legal experience and, more importantly, the appropriate judicial philosophy. The law must control the judge; the judge must not control the law. I have concluded that, based on evidence rather than blind faith, General Kagan regrettably does not meet this standard and that, therefore, I cannot support her appointment.

“Supreme Court Justices who, like General Kagan, had no prior judicial experience did have an average of 21 years in private legal practice. General Kagan has two. The fact that her experience is instead academic and political only magnifies my emphasis on judicial philosophy as the most important qualification for judicial service.

“Over nearly 25 years, General Kagan has endorsed, and praised those who endorse, an activist judicial philosophy. I was surprised when she encouraged us at the hearing simply to discard or ignore certain parts of her record. I am unable to do that. I also cannot ignore disturbing situations in which it appears that her personal or political views drove her legal views. She promoted the Clinton administration’s extreme position on abortion, including the barbaric practice of partial-birth abortion.
As Dean of Harvard Law School, she blocked the access by military recruiters that federal law requires. And she took legal positions on important issues such as freedom of speech that could undermine the liberties of all Americans.

“General Kagan is a good person, a skilled political lawyer, a brilliant scholar, and was a fine law school dean. I like her personally and I supported her to be Solicitor General. But applying the standard I have always used for judicial nominees, I cannot support her appointment to the Supreme Court.”

Kagan's precedents on guns

When saying one with follow precedent doesn't mean a lot. From a piece that I had at Fox News:

alarm bells should have gone off during Elena Kagan’s confirmation testimony to the Senate Judiciary Committee on Tuesday. Here’s what Kagan told Sen. Charles Grassley (R-Iowa):

It has long been thought, starting from the “Miller” case, that the Second Amendment did not protect such a right. . . . Now the Heller decision has marked a very fundamental moment in the court's jurisprudence with respect to the Second Amendment. And as I suggested to Senator Feinstein there is not question going forward that ‘Heller’ is the law, that it is entitled to all the precedent that any decision is entitled to and that is true to the ‘McDonald’ case as well...

There are two big problems with Kagan’s remarks: she inaccurately describes the 1939 Miller case and her claims to follow stare decisis are meaningless.

The Miller decision said that the Second Amendment protected civilian use of firearms that are used in the military and that a sawed off shotgun wasn't a military weapon. But the court went no farther in explaining the right. There was no discussion of the modern liberal view of a “collective right.” The very short opinion didn’t say if there was an individual right to own military weapons. The issues were never addressed.

However, Kagan’s argument is precisely what Justice Stevens wrote about when he and the other liberal Supreme Court justices opposed Heller. They claimed that Miller was the real precedent and that there was no individual right to own a gun. Stevens asserted that “Heller” and “McDonald” were the real aberrations from court precedent.

Kagan’s statement surely shows that she also believes the Heller decision broke with past precedent. Saying that Heller and McDonald are “entitled to all the precedent that any decision is entitled to” also means that her strained interpretation of Miller is entitled to the same precedent. . . .

Chicago Gun Control: The Sequel

I previously suggested why I thought McDonald would not take the gun rights issue of the table for Dems. This is why:

After spending two years fighting a legal battle that was clearly futile from the start, he didn't take the defeat graciously. He resentfully acknowledged his obligation to abide by the Second Amendment while pledging new shackles for those unwilling to depend entirely on 911 for home security.

The mayor is expected to demand registration of all handguns, mandatory training for gun owners and a limit of one handgun per person. This last novel idea comes from Corporation Counsel Mara Georges, who according to the Associated Press "says the court ruled people can have a gun for protection, but didn't say they're allowed more than one."

Kagan's Lying Her Pearls Off

From "The Kagan Hearings" at Human Events. Five areas where Kagan has told outright lies.

Property Rights

If you want to hear a bizarre response to a legal question, listen to Kagans response to Senator Grassleys question on Kelo, the case that essentially decided that party As property can be given to party B if party B can generate more tax revenue from the property. Grassley asked if she agreed with Kelo.

Kagans answer: the goal of Kelo was to kick it back to the states. She then said that the states had taken actions to prevent Kelo-type situations from occurring.

This is nonsense. It is equivalent to arguing that Plessy v. Ferguson was an attempt to kick it back to the states, forcing them to pass laws barring segregation, rather than an obviously horrible decision legalizing segregation under the Fourteenth Amendment. The purpose of Supreme Court decisions is to set the state of the law. It is not to incentivize states to do anything. We can only imagine that Kagan will attempt to use this same justification in the future for all her bad decisions (I was only attempting to incenvitize states to do X!).

Kagan Not a Fan of Limited Government, Natural Rights, or Even the Declaration of Independence

Are we really at a point with these hearings where a nominee cannot safely express agreement with the Declaration of Independence, four days before Independence Day? Or is she just really not a fan?.

Breyer Versus Second Amendment

Related: Ilya Somin - "Constitutional Rights that Put Lives at Risk"

Quote of the Day

"What Thomas has created, however, is a legal defense of the Second Amendment so thoroughly original and starkly race-based that none of the white justices would even acknowledge it, as if it were some blank sheet crafted by an invisible man."