Category Archive 'Elena Kagan'
22 Jun 2015
Hat tip to Walter Olson.
09 Dec 2011
It doesn’t happen very often, but once in a blue moon you actually find a liberal exhibiting intellectual honesty and standing up for real principles. George State Law Professor Eric Segall has the audacity to tell the readership of Slate that, yes, Elena Kagan really should be recusing herself from participating in the Supreme Court decision on Obamacare. And he is dead right.
Doing the right thing is easy when nothing important is at stake. Doing the right thing is much harder when there is a lot to lose. Elena Kagan is a loyal Democrat who owes her Supreme Court appointment to President Barack Obama.* She is poised to review the constitutionality of Obamaâ€™s health care statute, which, if invalidated, might do serious damage to his re-election campaign as well as the Democratic Party. Even though it would be a hard decision to make, Elena Kagan should recuse herself from hearing challenges to the act.
So far it appears that only Republicans and conservatives want Kagan to recuse herself from hearing the case, while liberals and Democrats take the opposing view. I have been a liberal constitutional law professor for more than 20 years, and a loyal Democrat. I believe the Affordable Care Act is constitutional and that it would be truly unfortunate for the country (and the party) if the court strikes it down. I also recognize that there is a much greater chance of the court erroneously striking down the PPACA if Kagan recuses herself. That said, I believe that as a matter of both principle and law, Kagan should not hear the case.
But what are the odds that she has as much integrity as he does?
19 May 2011
One of the problems with appointing prominent members of a presidential administration to the Supreme Court is the issue that if litigation connected with a piece of legislation or executive order that official had a hand in crafting should subsequently occur, he (or she) might find it necessary to recuse himself from participation in the case.
Recusal is not an optional choice. 28 U.S.C. Â§ 455 specifically states:
Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. …
Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.
Supreme Court Associate Justice Elena Kagan has denied being involved in preparations for court defense of Obamacare while she was serving as Solicitor General, and declined to recuse herself from the Supreme Court decision of April 2011 refusing to â€œfast-trackâ€ for review Virginiaâ€™s lawsuit challenging Obamacare.
Judicial Watch sued under the Freedom of Information Act and has obtained documents suggesting that Justice Kagan may have a serious problem here.
According to a January 8, 2010, email from Neal Katyal, former Deputy Solicitor General (and current Acting Solicitor General) to Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, Kagan was involved in the strategy to defend Obamacare from the very beginning:
Subject: Re: Health Care Defense:
Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issuesâ€¦we will bring in Elena as needed. [The â€œset of issuesâ€ refers to another email calling for assembling a group to figure out â€œhow to defend against theâ€¦health care proposals that are pending.â€]
On March 21, 2010, Katyal urged Kagan to attend a health care litigation meeting that was evidently organized by the Obama White House: â€œThis is the first Iâ€™ve heard of this. I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.â€
In another email exchange that took place on January 8, 2010, Katyalâ€™s Department of Justice colleague Brian Hauck asked Katyal about putting together a group to discuss challenges to Obamacare. â€œCould you figure out the right person or people for that?â€ Hauck asked. â€œAbsolutely right on. Letâ€™s crush them,â€ Katyal responded. â€œIâ€™ll speak with Elena and designate someone.â€
However, following the May 10, 2010, announcement that President Obama would nominate Kagan to the U.S. Supreme Court, Katyal position changed significantly as he began to suggest that Kagan had been â€œwalled offâ€ from Obamacare discussions.
For example, the documents included the following May 17, 2010, exchange between Kagan, Katyal and Tracy Schmaler, a DOJ spokesperson:
Shmaler to Katyal, Subject HCR [Health Care Reform] litigation: â€œHas Elena been involved in any of that to the extent SG [Solicitor Generalâ€™s] office was consulted?…
Katyal to Schmaler: â€œNo she has never been involved in any of it. Iâ€™ve run it for the office, and have never discussed the issues with her one bit.â€
Katyal (forwarded to Kagan): â€œThis is what I told Tracy about Health Care.â€
Kagan to Schmaler: â€œThis needs to be coordinated. Tracy you should not say anything about this before talking to me.â€
Included among the documents is a Vaughn index, a privilege log which describes records that are being withheld in whole or in part by the Justice Department. The index provides further evidence of Kaganâ€™s involvement in Obamacare-related discussions.
For example, Kagan was included in an email chain (March 17â€“18, 2010) in which the following subject was discussed: â€œon what categories of legal arguments may arise and should be prepared in the anticipated lawsuit.â€ The subject of the email was â€œHealth Care.â€ Another email chain on March 21, 2010, entitled â€œHealth care litigation meeting,â€ references an â€œinternal government meeting regarding the expected litigation.â€ Kagan is both author and recipient in the chain.
The index also references a series of email exchanges on May 17, 2010, between Kagan and Obama White House lawyers and staff regarding Kaganâ€™s â€œdraft answerâ€ to potential questions about recusal during the Supreme Court confirmation process. The White House officials involved include: Susan Davies, Associate White House Counsel; Daniel Meltzer, then-Principal Deputy White House Counsel; Cynthia Hogan, Counsel to the Vice President; and Ronald Klain, then-Chief of Staff for Vice President Biden. The DOJ is refusing to produce this draft answer.
Judicial Watch describes itself as conducting an ongoing investigation of the matter.
The documents obtained so far fail to produce absolute “smoking gun” proof that Kagan violated the law in failing to recuse herself, but all the evidence of collaboration over accounts is extremely suggestive.
Ace aptly observes:
Just a crazy question here — has anyone said “We’ve got to get our stories straight” when everyone involved was planning on telling the truth?
Are “coordinated” stories generally more credible than uncoordinated, unscripted ones? I guess the Obama White House thinks so.
It’s a hip, smart way to say “lying.”
22 Jun 2010
Elena Kagan says (in a speech at Case Western Reserve in 1997) she “loved what happened in the Bork hearings… The Bork hearings were great, the Bork hearings were educational. The Bork hearings were the best thing that ever happened to Constitutional Democracy.â€
From Breitbart via Glenn Reynolds.
03 Jun 2010
As Dean of Harvard Law School, Elena Kagan not only moved Harvard away from teaching the case method (invented at Harvard circa 1870), she eliminated Constitutional Law from the list of required courses.
As CNS reports, American Constitutional Law was demoted in favor of more international perspectives.
[I]n a 2006 Harvard news release explaining the changes, Kagan explained the move away from constitutional law was deliberate: â€œFrom the beginning of law school, students should learn to locate what they are learning about public and private law in the United States within the context of a larger universe — global networks of economic regulation and private ordering, public systems created through multilateral relations among states, and different and widely varying legal cultures and systems.
â€œAccordingly, the Law School will develop three foundation courses, each of which represents a door into the global sphere that students will use as context for U.S. law,â€ the guide said.
Among the three new required courses Kagan introduced, one focuses on public international law, involving treaties and international agreements, and the second is on international economic law and complex multinational financial transactions, according to a Harvard news release.
But the third course, on comparative law, â€œwill introduce students to one or more legal systems outside our own, to the borrowing and transmission of legal ideas across borders and to a variety of approaches to substantive and procedural law that are rooted in distinct cultures and traditions,â€ the release said.
What could be a more eloquent demonstration of the precise level of deference to the US Constitution Ms. Kagan would bring to the Supreme Court?
16 May 2010
Peggy Noonan reflects on the ironies of American meritocracy laboring mightily… and delivering an establishment full of socialists. And exactly how committed to socialism is the successful gamesman who has finally clambered all the way to the top by hard work, talent, and no small quantity of discretion and craft?
Personally, I tend to suspect that Socialism functions in much the same way for these people that Religion used to for earlier establishmentarians. One regularly attends services and is officially a member of the church, but it has not got a lot to do with one’s actual business life.
What is interesting about the nomination is that all the criticisms serious people have lobbed about so far are true. Yes, she is an ace Ivy League networker. Yes, career seems to have been all, which speaks of certain limits, at least of experience. She has been embraced by the media elite and all others who know they will be berated within 30 seconds by an irate passenger if they talk on a cellphone in the quiet car of the Washington-bound Acela. (If our media elite do not always seem upstanding, it is in part because every few weeks they can be seen bent over and whispering furtively into a train seat.) Ms. Kagan and her counterparts all started out 30 years ago trying to undo the establishment, and now they are the establishment. If you need any proof of this it is that in their essays and monographs they no longer mention “the establishment.”
Ms. Kagan’s nomination has also highlighted America’s ambivalence about what we have always said we wanted, a meritocracy. Work hard, be smart, rise. The result is an aristocracy of wired brainiacs, of highly focused, well-credentialed careerists. There’s something limited, even creepy, in all this ferocious drive, this well-applied brilliance. There’s a sense that everything is abstract to those who succeed in this world, that what they know of life is not grounded in hard experience but absorbed through screensâ€”computer screens, movie screens, TV screens. Our focus on mere brains is creepy, too. Brains aren’t everything, heart and soul are something too. We do away with all the deadwood, but even dead trees have a place in the forest.
The ones on top now and in the future will be those who start off with the advantage not of great wealth but of the great class marker of the age: two parents who are together and who drive their children toward academic excellence. It isn’t “Mom and Dad had millions” anymore as much as “Mom and Dad made me do my homework, gave me emotional guidance, made sure I got to trombone lessons, and drove me to soccer.”
We know little of the inner workings of Ms. Kagan’s mind, her views and opinions, beliefs and stands. The blank-slate problem is the post-Robert Bork problem. The Senate Judiciary Committee in 1987 took everything Judge Bork had ever said or written, ripped it from context, wove it into a rope, and flung it across his shoulders like a hangman’s noose. Ambitious young lawyers watched and rethought their old assumption that it would help them in their rise to be interesting and quotable. In fact, they’d have to be bland and indecipherable. Court nominees are mysteries now.
Which raises a question: After 30 years of grimly enforced discretion, are you a mystery to yourself? If you spend a lifetime being a leftist or rightist thinker but censoring yourself and acting out, day by day, a bland and judicious pondering of all sides, will you, when you get your heart’s desire and reach the high court, rip off your suit like Superman in the phone booth and fully reveal who you are? Or, having played the part of the bland, vague centrist for so long, will you find that you have actually become a bland, vague centrist? One always wonders this with nominees now.
14 May 2010
She does not believe the First Amendment means what it says.
Mr. Obama noted that as Solicitor General her “passion for the law” had led her make this year’s landmark campaign finance case, Citizens United v. FEC, her first argument before the Supreme Court.
“Despite long odds of success, with most legal analysts believing the government was unlikely to prevail in this case,” Mr. Obama said, Elena Kagan took it on bravely. “I think it says a great deal about her commitment to protect our fundamental rights,” he continued, “because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”
She does not believe the Second Amendment means what it says.
Elena Kagan said as a U.S. Supreme Court law clerk in 1987 that she was â€œnot sympatheticâ€ toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed pistol. …
The manâ€™s â€œsole contention is that the District of Columbiaâ€™s firearms statutes violate his constitutional right to â€˜keep and bear arms,â€™â€ Kagan wrote. â€œIâ€™m not sympathetic.â€
But her recently unearthed college thesis shows that she once thought a lot more highly of socialism.
In our own times, a coherent socialist movement is nowhere to be found in the United States. Americans are more likely to speak of a golden past than of a golden future, of capitalism’s glories than of socialism’s greatness.
Why, in a society by no means perfect, has a radical party never attained the status of a major political force? Why, in particular, did the socialist movement never become an alternative to the nation’s established parties? Through its own internal feuding, then, the SP [Socialist Party] exhausted itself…
The story is a sad a but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America. … In unity lies their only hope.”
She is the perfect liberal candidate.
12 May 2010
Russia knows how to deal with pirates: “They could not reach the coast and, apparently, have all died.”
Hat tip to John C. Meyer.
Robert Samuelson: What we’re seeing in Greece is the death spiral of the welfare state.
Jewish World Review: Elena Kagan let Charles Ogletree and Larry Tribe get away with plagiarism. Harvard Crimson story.
10 May 2010
By recent standards, Elena Kagan has an unconventional background.
Kagan would be the first justice without judicial experience in almost 40 years. The last two were William H. Rehnquist and Lewis F. Powell Jr., both of whom joined the court in 1972.
This is not a good thing.
At least, she is a law professor, not an environmentalist poet. But even a dean and law professor is coming out of an ivory-tower academic milieu in many respects far more untethered from reality than the bench and far, far more culturally left wing.
MSNBC sums up her entire background.
She is close to Obama. She evidently attempted to recruit him as a full-time law school faculty member at Chicago.
Obama is thought by some to have chosen her as an intellectual counterweight to Chief Justice Roberts. But I think she was probably really chosen on the basis of her collegiality and talent for negotiation and persuasion, as demonstrated by her performance as Dean of Harvard Law School.
Deans of elite major academic institutions of that kind must be personable and articulate enough to function as public figures and institutional symbols. A dean is also an administrative officer presiding over a restive community of powerful interest groups quite capable of making serious trouble when not satisfied and handled with tact. The dean of Harvard Law is, of course, inevitably an operator, a thoroughgoing realist and pragmatist skilled at getting her way, but knowing very well what the limits of possibility and acceptability are.
She is short, plump, unattractive, and of heavily ethnic appearance. She must be quite brilliant and possess enormous personal charm to have overcome those obstacles to become Dean of Harvard Law.
I think Obama is right to believe she is likely to be influential at the Supreme Court through personal charm and persuasion.
Media Matters is hastily assuring everyone that she is not a radical or a socialist.
Well, no dean of Harvard Law School can possibly be regarded as really radical. But there can be no doubt that she is an echt liberal Jewish law professor with strong roots on the political left. She clerked for Thurgood Marshall, and has referred to him as “the greatest lawyer of the 20th century.” Obviously, that particular opinion demonstrates a powerful emotional connection with Civil-Rights-ism and complete identification with the conventional leftwing narrative of the progressive triumph over American oppression through a series of expansions of federal power and admirable end-runs around “outworn” Constitutional obstructions.
Still, she is replacing Justice Stevens, and we can console ourselves that it seems impossible that Obama could appoint anyone inclined to vote worse.
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