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.

Glenn Greenwald writes a very compelling case for Seventh Circuit Judge Diane Wood to sit on the Supreme Court. I'm convinced. Now, how to convince Obama? I think the tail end of Glenn's article makes the best case for why picking Wood to replace Justice Stevens is not only good progressivism but good politics:

What makes Wood so unique is that she combines her principled convictions with an extraordinary ability to secure the support of other judges for her opinions. Her creative and flexible intellect enables her simultaneously to stay within the confines of the law while finding the most equitable outcomes that attract a broad range of support. The 7th Circuit is one of the more conservative circuits in the country, yet Wood's influence on that court and her ability to induce right-wing judges to support her rulings is remarkable, an attribute particularly important for replacing Justice Stevens. It's impossible to provide anything close to a comprehensive assessment of her 15 years of written opinions in this regard, but a few illustrative cases can be highlighted.

Given the need to persuade Justice Kennedy (and I have been convinced by some smart people that in fact Kennedy is persuadable), this is a critical skill. But there is another political upside - putting forth an intelligent exposition of the progressive view of the law, and putting it to the test. In that sense, Greenwald's associate Daniel Novack makes a strong point:

I want someone like Pam Karlan for the Court. But I would accept someone like Elena Kagan. Who would I oppose? Someone like Cass Sunstein. - BTD

Glenn Greenwald wrote:

I'm glad this debate [over Elena Kagan] has been triggered. No matter what else happens between now and 2012, Obama's choice to replace John Paul Stevens will be one of the most consequential decisions he makes. [. . .] There's no reason that those who advocated for Obama's election -- as I did -- should adopt a passive posture of simply waiting quietly for Obama's choice and then go forth and dutifully support his nominee. From the start, my objective has been to document all the available facts so that everyone can exercise their own independent, critical judgment about whether replacing Stevens with Kagan is remotely justifiable given long-standing progressive goals with regard to the Supreme Court.

(Emphasis supplied.) I completely agree. Indeed, I agree with this about every issue. It is a longstanding argument of mine that progressives should decouple their advocacy from Obama's actions. When they agree, strongly support. When they disagree, strongly criticize. That said, I think it is important to be accurate in your criticisms. I've taken issue with Glenn's interpretations on Kagan. But I also think there is an implicit assumption in Glenn's approach that is unrealistic - to wit, that Obama wants a progressive on the Supreme Court. I see no evidence to support such an implicit assumption. More . . .

Former President Bill Clinton was on ABC's This Week this morning. Jake Tapper asked him whether he'd like to be on the Supreme Court. His answer:

“I think I would enjoy it, but I don't think it would be a good idea…I'm already 63 years old, I hope I live to be 90…I love what I'm doing now and what I'm doing now is something that I'm uniquely qualified to do, whereas there are many people who could be good on the court.”

He also said both he and Hillary are too old to be put on the Supreme Court now -- not because they can't do it but because it would be better to pick someone with more energy in their 40's or 50's....meaning someone who will serve longer.

As to who Obama should pick:

“My advice to him would be to first of all see what the court is missing…The important thing is that you think they're smart and they're competent and they understand the lives of ordinary people. Now one thing I think he should think about is have we…gone too far in this process that assuming only judges can be elected? That somehow you're not qualified if you weren't a judge."

With Solicitor General Elena Kagan the likely pick to be the next Supreme Court Justice, I am going to start providing some primary source materials for consideration. Earlier, I discussed Kagan's 2001 law review article on Executive power. I have previously discussed my views on preventive detention. In this post, I provide the transcript of Kagan's testimony in the Senate Judiciary Committee hearings on her nomination to be Solicitor General. Below the fold, I provide the quotes from her exchange with Senator Lindsey Graham on preventive detention:

Walter Dellinger's piece on Elena Kagan (it reaches similar conclusions to my own piece) raises important questions for progressives regarding a desire for a strong regulatory state while at the same time fearing a strong President. Dellinger writes:

Kagan's 2001 Harvard Law Review article "Presidential Administration[]" [. . .] does not endorse anything remotely like the Bush-Cheney view of broad presidential power to evade laws passed by Congress. [. . .] Kagan's views on the president's power to direct the executive branch are in fact fully consistent with the positions taken by Justice Stevens. [. . .]

As a matter of policy, moreover, Kagan writes that she sees presidential supervision of federal agencies "as a mechanism to achieve progressive goals" in areas such as environmental protection. [. . . ] The Bush-Cheney view of executive power was wrong not because it asserted that the president could direct administrative agencies to achieve policy goals. It was wrong because it allowed for the president to ignore decisions made by Congress and assert unilateral power to violate duly enacted laws. That is a view of presidential power that Kagan expressly rejects. She believes that the president has to comply with the law, writing that, "If Congress, in a particular statute, has stated its intent with respect to presidential involvement, then that is the end of the matter."

(Emphasis supplied.) This was the point I made in my post earlier this week. But Dellinger continues to an equally significant point:

When discussing Solicitor General, and probable SCOTUS nominee, Elena Kagan's views on the unitary executive theory, it is important to understand what is meant by the theory of the unitary Executive Branch. I made this distinction during the Alito hearings of 2006. The Bush Administration took what I believe is a respectable theory of a unitary Executive Branch and distorted it to support their lawlessness:

In a speech to the Federalist Society in 2001, Alito said:

When I was in OLC [] . . ., we were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the President. [. . .]

What does that mean? Here's what it means for Bush:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

The infamous Bybee Memo put it this way: