The confirmation hearings for Supreme Court nominee Elena Kagan have begun.

Dan Abrams tweets:

What a weird spectacle. Kagan has to sit there expressionless as Sessions insults her again and again.

Glenn Greenwald tweets:

I hope progressive legal groups will refrain from heaping praise on Kagan unless/until they learn a little about her judicial philosophy.

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The Supreme Court released its final decisions this morning. Among the most anticipated was McDonald v. Chicago (PDF), where the question presented was whether the Second Amendment applies to the States, via the incorporation doctrine. Justice Stevens' dissent includes a passage on the Constitution and the role of the Supreme Court that I believe will be remembered:

[T]he liberty safeguarded by the Fourteenth Amendment is not merely preservative in nature but rather is a“dynamic concept.” Stevens, The Bill of Rights: A Centuryof Progress, 59 U. Chi. L. Rev. 13, 38 (1972). Its dynamism provides a central means through which the Framers enabled the Constitution to “endure for ages to come,” McCulloch v. Maryland, 4 Wheat. 316, 415 (1819), a central example of how they “wisely spoke in general language and left to succeeding generations the task of applying that language to the unceasingly changing environment in which they would live,” Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693, 694(1976). “The task of giving concrete meaning to the term‘liberty,’” I have elsewhere explained at some length, “was a part of the work assigned to future generations.” Stevens, The Third Branch of Liberty, 41 U. Miami L. Rev.277, 291 (1986).21 The judge who would outsource the interpretation of “liberty” to historical sentiment has turned his back on a task the Constitution assigned to him and drained the document of its intended vitality.

(Emphasis supplied.) Speaking for me only.

Confirmation hearings begin Monday for Supreme Court nominee Elena Kagan.

Republican Senator Jeff Sessions is still talking about a filibuster. I think he's talking to himself.

Kagan will be quizzed by 12 Democrats and 7 Republicans. The AP has a guide here.

In other Supreme Court news, condolences to Justice Ruth Bader Ginsburg, whose husband, lawyer and professor Martin Ginsburg, passed away today at 78, from complications related to metastatic cancer.

In a NYTimes Editorual published today:

Two recent moments have brought to mind Chief Justice John Roberts’s simplistic description of a Supreme Court justice as an umpire who confines himself to calling balls and strikes. The first was the reminder in Detroit on Wednesday night that umpires are highly fallible, and their calls subjective, even when something as important as Armando Galarraga’s nearly perfect game is at stake.

The other was former Justice David Souter’s brilliant demolition of the umpire metaphor in his commencement address at Harvard last week. It is hard to imagine a better preparation for the confirmation hearings of Elena Kagan later this month.

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Discussing Justice Souter's Harvard Commencement Address (my earlier post here), Linda Greenhouse writes:

[F]or those who care about the Supreme Court, Justice Souter served up some rich fare: his own vision of the craft of constitutional interpretation and a defense of the need for judges to go beyond the plain text — what he called the “fair-reading model” — and make choices among the competing values embedded in the Constitution. Doing this was neither judicial activism nor “making up the law,” he said; rather, it was the unavoidable “stuff of judging,” and to suppose otherwise was to “egregiously” miss the point of what constitutional law is about.

[. . . Souter] note[d] that with another confirmation season approaching, “we will as a consequence be hearing and discussing a particular sort of criticism that is frequently aimed at the more controversial Supreme Court decisions: criticism that the court is making up the law, that the court is announcing constitutional rules that cannot be found in the Constitution, and that the court is engaging in activism to extend civil liberties.” He framed the speech as a rebuttal to those criticisms.

Justice Souter's address provides a great place to start with nominee Elena Kagan on the issue of judicial philosophy and constitutional interpretation. Let's hope some intrepid progressive Senator on the Judiciary Committee (how about Senator Specter?) opens the conversation. In the meantime, I join Greenhouse's pleasure in seeing Justice Souter choosing to remain in this important discussion about constitutional interpretation.

Speaking for me only

The Supreme Court today ruled that suspects must affirmatively state their intent to remain silent and request a lawyer when being questioned by police in order for statements they make to be suppressed. The court was divided 5 to 4. Justice Sotomayor, in a dissent, wrote:

"Criminal suspects must now unambiguously invoke their right to remain silent - which counterintuitively, requires them to speak," she said. "At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded."

The case is The case is Berghuis v. Thompkins, 08-1470 and the opinion is here.

This is pretty funny:

Some have suggested that because [Kagan's 2001 Harvard Law Review] article looks favorably on President Bill Clinton’s energetic use of executive orders and regulatory efforts, Ms. Kagan must agree with the Bush administration’s theories of the unitary executive.

This is a mistake [. . . H]er article clearly and directly rejected the theories supporting the executive branch’s broad constitutional powers. [. . .]

This is actually very true, as I explained on April 14. Of course for Yoo, this is a bad thing. For the civilized world, it is a favorable for Kagan.

Speaking for me only

Our good friend Glenn Greenwald was on ABC's This Week talking Kagan and other things:

Given the forum, Glenn did good. I wish he would not have characterized Kagan's career path in pejorative terms and instead had just focused on her views, or the lack of a public record of her views on a number of subjects. Also Greg Craig was astoundingly bad in defense of Kagan, and the Administration will need to find better surrogates for her.

Speaking for me only

One of the silliest arguments that you will hear to defend the view that judicial nominees should not answer questions about their legal views is the supposed need to maintain "the appearance of impartiality." By that logic, the Supreme Court itself could not decide cases that touch upon decisions they participated in. Let me provide a few examples. The late Chief Justice William Rehnquist dissented in Roe v. Wade in 1973. After Roe, a series of cases touching on the right to choose came before the Court. And in 1993, the Court decided Planned Parenthood v. Casey. To the surprise of no one, Rehnquist maintained his view that Roe was wrongly decided:

In Roe v. Wade, the Court recognized a "guarantee of personal privacy" which "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." 410 U.S. at 410 U.S. 152"]152-153. We are now of the view that, in terming this right fundamental, the Court in Roe read the earlier opinions upon which it based its decision much too broadly.

Was the "appearance" of judicial impartiality damaged because Rehnquist had publically stated his views on the right to choose in his dissent in Roe? And if it wasn't, how in blazes would requiring a judicial nominee to say whether they agree with Roe or Casey damage the "appearance"of impartiality?

This argument for not requiring answers from judicial nominees is empty, vacuous and idiotic.

Speaking for me only

The Kagan Standard:

[Elena Kagan] called on the Senate [. . .] to embrace “the essential rightness — the legitimacy and the desirability — of exploring a Supreme Court nominee’s set of constitutional views and commitments.

Then Senator Barack Obama stated that the Kagan Standard is even more imperative for a nominee with no judicial record:

Harriet Miers has had a distinguished career as a lawyer, but since her experience does not include serving as a judge, we have yet to know her views on many of the critical constitutional issues facing our country today. In the coming weeks, we'll need as much information and forthright testimony from Ms. Miers as possible so that the U.S. Senate can make an educated and informed decision on her nomination to the Supreme Court.

As regular readers know, this is a view I embraced many years ago, and discussed often during the 2005 John Roberts confirmation process, and later the Alito and Sotomayor confirmation processes. In a Bloggingheads session with Glenn Greenwald, Larry Lessig makes the utterly vapid argument that Professor Kagan is different from nominee Kagan and Dems should not take the same position they did with Republican nominees. Not only is this baldly unprincipled and hypocritical, it is also stupid. I'll explain why I think so on the flip.

Reuters:

[Sen. Arlen] Specter [D-PA] said, [Supreme Court nominee Elena ] Kagan reiterated her criticism that the Senate confirmation process yields little information about Supreme Court nominees and that one justice was less than forthcoming during his or her confirmation hearing. [. . .] Specter said Kagan reiterated her earlier criticism, made before her nomination this week, of the confirmation process as "not telling very much about the nominee."

[Specter] emerged from his meeting with her on Thursday saying, she "was very forthcoming during our discussion."

This is great news if Kagan holds to it. Best news on her so far in fact, from my perspective.

Speaking for me only

It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision - Justice John Paul Stevens in dissent in Parents Involved v. Seattle School Districts

Understanding and KNOWING Elena Kagan's views on race and diversity are critical to evaluating her as a nominee for the Supreme Court. The hiring practices of Harvard Law School while she was Dean are already a matter of concern. Yesterday, Politico's Josh Gerstein characterized some memos by Kagan as expressing disagreement with race conscious remedies:

Other memos suggest that Kagan and Reed thought that the race initiatve was pressing for too many race-conscious solutions when the central focus should be a "race-neutral opportunity agenda." They did, however, concede an ongoing role for civil rights enforcement and "narrowly-tailored affirmative action programs."

I'm trying to get copies of these "other memos" so I can judge for myself but I do want to highlight the importance of the issue. A review of the Court's decision in Parents Involved demonstrates the stakes. In Parents Involved, Chief Justice Roberts wrote for a 5-4 majority: