Judgment, values, and politics are what matters on the Court. And here I am somewhat at a loss. Clearly, [Kagan]’s a Democrat. She was a highly regarded member of the White House staff during the Clinton years, but her own views were and are something of a mystery. She has written relatively little, and nothing of great consequence. - Jeff Toobin, cited by Jack Balkin to evidence that Elena Kagan is not a "stealth nominee."

Coming from a law professor, expressing disdain because people care what a SCOTUS nominee thinks is strange. Coming from the very smart Jack Balkin, it seems incomprehensible:

Liberals and conservatives alike are worried about Kagan's politics once she becomes a Justice. They are pouring over her body of legal writings, scrutinizing elements of her career, and psychoanalyzing her from a distance. Journalists are busily constructing a story of her life to make her accessible to the general public, while her political opponents try to engage in various forms of character assassination or, at the very least, a death by a thousand cuts. I find all of this dreary and tiresome.

(Emphasis supplied.) WTF? And this is BS:

Link:

There is no doubt that Elena Kagan has exemplary academic and professional credentials. And she has been a pioneer for women, serving as the country’s first female Solicitor General and as the first woman to be Dean of Harvard Law School. I applaud the President for nominating someone who has a varied and diverse background outside the circuit court of appeals.

I voted against her for Solicitor General because she wouldn't answer basic questions about her standards for handling that job. It is a distinctly different position than that of a Supreme Court Justice. I have an open mind about her nomination and hope she will address important questions related to her position on matters such as executive power, warrantless wiretapping, a woman’s right to choose, voting rights and congressional power.

(Emphasis supplied.) I would add a question on Dickerson v. US ("Congress may not legislatively supersede our decisions interpreting and applying the Constitution. [. . .] we conclude that Miranda announced a constitutional rule that Congress may not supersede legislatively. Following the rule of stare decisis, we decline to overrule Miranda ourselves.")

Speaking for me only

Jeff Rosen writes:

In an academic article she will no doubt most regret, Kagan laid out what conservatives are already calling the “Kagan standard,” insisting that senators should question Supreme Court nominees closely. The Kagan standard is well worth applying to Elena Kagan [. . .]

I completely agree with Jeff Rosen. Let's apply the "Kagan Standard" to Elena Kagan.

Speaking for me only

Elena Kagan's expressed views are sparse. She has a lot of answers to provide. But since we pretty much knew she would be the nominee a while ago, we wrote about the few issues where her views and/or conduct were known. First, I wrote a lengthy post extolling Kagan's law review article on executive power as an exercise in scholarly excellence and progressivism. Second, I wrote a critique of her hiring actions as Dean of Harvard Law School. Third, I discussed Kagan's views on preventive detention (they are similar to my own, which are not progressive.)

Here is Jeralyn's take on the announcement of Kagan as SCOTUS nominee.

The story of Elena Kagan's legal views remains to be told and she needs to tell it during her confirmation hearings.

Speaking for me only

Previously I criticized Joe Sestak for his eagerness to rubberstamp Elena Kagan's nomination to the SCOTUS. Sestak criticized Arlen Specter's no vote on Kagan for Solicitor General. Booman provides Specter's very compelling defense of his No vote:

I don't know very much more about [Kagan] now than I did when we started the process. From the many questions that I asked her on cases, I have picked out a few to illustrate the problem I am having with figuring out where she stands and the problem I am having with her confirmation. [. . . W]e do not know very much about her views [. . .] I had calls from people in high positions--I do not want to identify them--saying: Well, don't ask those kinds of questions. Somebody in the executive branch. Well, I am not prepared to relinquish the institutional prerogatives of the Senate to ask questions. The executive branch nominees want confirmation. Well, Senators want information to base their opinions on.

[. . .] In essence, it is difficult to cast a negative vote on someone with the qualifications and background of Dean Kagan, but we have a major problem of institutional standing to find out from a nominee what the nominee thinks on important questions. [. . .] I think we have to pay a little more attention, and I have gone to some length to try to find out more about Dean Kagan. In the absence of being able to do so and to have a judgment on her qualifications, I am constrained to vote no.

(Emphasis supplied.) In my view, this is precisely the attitude that the Senate should take towards all judicial nominees. On this issue, Joe Sestak could not be more wrong and Arlen Specter could not be more correct.

Speaking for me only

Does the Congress have the right to limit Fifth Amendment rights by passage of a statute? This seems like a simple question to which the answer is an emphatic No. But the Obama Administration's position on this puts this view in doubt:

The Obama administration said Sunday it would seek a law allowing investigators to interrogate terrorism suspects without informing them of their rights [. . .] Mr. Holder proposed carving out a broad new exception to the Miranda rights established in a landmark 1966 Supreme Court ruling. It generally forbids prosecutors from using as evidence statements made before suspects have been warned that they have a right to remain silent and to consult a lawyer.

Does Elena Kagan believe that Congress can restrict fundamental Constitutional rights by mere passage of a statute? Let's hope not. I'll have more on this silly election year proposal from the Obama Administration in a later post.

Speaking for me only

Joe Sestak sent this press release:

Democratic U.S. Senate candidate Congressman Joe Sestak released the following statement today on President Obama's nomination of Solicitor General Elena Kagan to the Supreme Court:

"I applaud President Obama's selection of Elena Kagan to serve as our next Supreme Court Justice. The President's background as a Constitutional law professor served him well in selecting Justice Sotomayor, and I believe it has again in this case. "Ms. Kagan's qualifications as both a respected legal mind who rose to be Dean of Harvard Law School and a key domestic policy adviser for President Bill Clinton, who helped formulate and implement policies in areas including education, crime and public health, will allow her to bring a breadth of experience to the bench.

[. . .] "Senator Specter has rightfully said that confirming nominees to the Supreme Court is one of the most important duties of a Senator. The people of Pennsylvania and this country deserve someone they can count on to be objective and act in the best interest of the nation -- not to exploit such an important process for their own political gain."

Joe Sestak's impulse to rubberstamp the President's choice puts his ability to carry out this function in serious doubt to me. I deplore his desrie to be the first to rubberstamp President Obama's choice of Elena Kagan. Bad show Rep. Sestak.

Speaking for me only

President Obama will name U.S. Solicitor General Elena Kagan today to replace retiring Supreme Court Justice John Stevens.

A New Yorker who grew up in Manhattan, Ms. Kagan earned degrees from Princeton, Oxford and Harvard Law School, worked briefly in private practice, clerked for Justice Thurgood Marshall, served as a Senate staff member and worked as a White House lawyer and domestic policy aide under President Bill Clinton.

Considering the most likely alternative was Judge Merrick Garland, formerly a top DOJ prosecutor, I'm glad. I think we dodged another Alito and Roberts bullet. Her only past job that gives me pause: She was a special counsel to Joe Biden when he served on the Senate Judiciary Committee in the early 90's. [More...]

LATimes:

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

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

These comments from a 1995 article are likely to be a focus of the next Supreme Court hearing if their author — Elena Kagan — emerges as President Obama's nominee. White House aides say the president is near making a decision, perhaps as soon as Monday.

(Emphasis supplied.) Kagan was absolutely right in 1995 and should she be the nominee, then it is time to elevate the confirmation process -- apply the standard Kagan caled for in 1995. The Senate has the right and should demand answers from judicial nominees. If the nominee refuses, then the Senate should not confirm.

Speaking for me only

The most troubling aspect of Elena Kagan's record, in my view, was her hiring record as Dean of Harvard Law School. Guy-Uriel Charles wrote:

One of Kagan's purported qualifications for the Supreme Court is that she is a consensus builder. The chief evidence for that contention is that she broke the hiring logjam at Harvard and made it possible for Harvard to hire conservatives. It might sound absurd to some, but I will accept the point that one of Kagan's chief selling points is that she assured that Harvard did not discriminate ideologically. I am personally gratified that Harvard Law School is not closed to conservative faculty members. I support ideological diversity and would not want to see qualified individuals discriminated against on the basis of ideology.

But what about people of color? How could she have brokered a deal that permitted the hiring of conservatives but resulted in the hiring of only white faculty? Moreover, of the 29 new hires, only six were women. So, she hired 23 white men, 5 white women, and one Asian American woman. Please do not tell me that there were not enough qualified women and people of color. That's a racist and sexist statement. It cannot be the case that there was not a single qualified black, Latino or Native-American legal academic that would qualify for tenure at Harvard Law School during Elena Kagan's tenure. To believe otherwise is to harbor troubling racist views.

Third, what is the justification for putting someone on the Supreme Court without a demonstrated commitment to opening barriers for women and people of color? Kagan's performance as Dean at Harvard raises doubts about her commitment to equality for traditionally disadvantaged groups. I am eager to be convinced that she is committed to full equality for marginalized groups, but I'd like to see the evidence.

(Emphasis supplied.) My thoughts on the flip.

Linda Greenhouse writes:

[W]hy do other countries not suffer from the same toxic confirmation battles that we do? It’s not because the United States Supreme Court maintains a hotter docket. Courts in other countries frequently decide cases with major implications for domestic politics. The Canadian Supreme Court declared that country’s abortion law unconstitutional in 1988. In 1995, the brand-new South African Constitutional Court struck down the death penalty.

Rather, structural differences are what seem to matter: how justices are appointed, how long they serve — and also how they behave once on the bench. No other country has adopted the U.S. model of life tenure for judges. High-court judges typically serve for a single nonrenewable term of 9 to 12 years — a period during which Supreme Court justices in the United States are just getting warmed up.

Therein lies the answer - the Supreme Court is a political institution - one of the three political branches of the federal government. But unlike the others, once in office, Supreme Court Justices are exempt from the accountability the other two political branches face - elections. Because of that, all of the politics of the Supreme Court show up in the confirmation hearings and, to a lesser extent, in Presidential elections (a real shame imo, it should be a first line issue in every Presidential election.) More . . .

US. v. Stevens (PDF), 8-1, with Alito in dissent. From the syllabus:

Congress enacted 18 U. S. C. §48 to criminalize the commercial creation, sale, or possession of certain depictions of animal cruelty. The statute addresses only portrayals of harmful acts, not the underlying conduct. It applies to any visual or auditory depiction “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed,” if that conduct violates federal or state law where “the creation, sale, or possession takes place,” §48(c)(1). Another clause exempts depictions with “serious religious, political, scientific, educational, journalistic, historical, or artistic value.” §48(b). The legislative background of §48 focused primarily on “crush videos,” which feature the torture and killing of helpless animals and are said to appeal to persons with a specific sexual fetish. Respondent Stevens was indicted under §48 for selling videos depicting dogfighting. He moved to dismiss, arguing that §48 is facially invalid under the First Amendment. The District Court denied his motion, and Stevens was convicted. The Third Circuit vacated the conviction and declared §48 facially unconstitutional as a content-based regulation of protected speech.

Held: Section §48 is substantially overbroad, and therefore invalid under the First Amendment.

Haven't read the opinion but I am curious if the question of whether Congress can regulate the underlying conduct came up.