Sunday, May 09, 2010

The Supreme Court nominee 

NBC News is reporting that President Obama will nominate Solicitor General Elena Kagan to serve on the U.S. Supreme Court.

Full disclosure up front: Elena Kagan was a college classmate, and I knew her back in the day, although we have not stayed in touch. I remember her as a very nice woman -- someone who would go out of her way to be nice -- as well as kind and considerate, with a great deal of common sense. Beyond just having run-of-the-mill Ivy League book intelligence (which pretty much everybody had to have just to get through the admissions process), Elena was smart as a whip.

I'm not a lawyer or constitutional scholar, and not in a position to say how good her legal mind is, but others who ought to know have commented quite favorably -- SCOTUSblog has "more than you ever wanted to know" about Elena Kagan's biography and writings, and will be an ongoing source of good information as the confirmation process unfolds. I kind of like the fact that she is not a sitting District Court Judge (nor has she ever served as a judge), which, in and of itself, might bring a different perspective to the Supreme Court.

Over at Slate, lefty blogger Glenn Greenwald has set forth his case against Elena Kagan over the past month, including updates this weekend, and four law professors complained on Slate that her hiring practices were not satisfactory while she was the Dean of Harvard Law School. Suffice it to say that Elena Kagan is not a pick that the progressive wing of the Democratic Party will be happy with, and there may be political fallout because of that unhappiness come November, both in terms of money and turnout.

Readers of righty blogs will undoubtedly have many negative things to say as well, and the commenters at Ace have gotten off to a start. Military recruiting on campus at Harvard, being on a Goldman Sachs advisory panel, rumored sexual orientation -- all will be grist for the mill. Presumably, any person nominated by President Obama would be target practice for many commenters on numerous blogs.

Barring some unforeseen event or revelation, Elena Kagan will be confirmed. There will not be a Republican filibuster, because there are simply not enough votes.

It will be interesting to see how many Republicans vote against the nomination because of the experience this weekend of now-outgoing Utah Senator Bob Bennett. There is enough that is unique about Utah politically and its party nomination procedure specifically that may make this a one-off. Senator Hatch, senior to Bennett in the Utah delegation, broke with his usual pattern of giving qualified nominees the benefit of the doubt and did not vote to confirm Sonia Sotomayor; so, it would come as no surprise if he votes against the new nominee. Arlen Specter, then voting as a Republican, voted against Elena Kagan's confirmation to the office of Solicitor General. I'll bet a dozen cheese steaks that Specter, now a Democrat running in a tough Pennsylvania primary, will vote to confirm her this time.

Some years ago, I wrote all of the business section and much of the draft S-1 document for a proposed IPO for a subsidiary of my employer at the time. As a joke, I wrote in the "Risk Factors" section that too many of the people working on the transaction (and in the business) had gone to Princeton. Maybe the toughest part about the Supreme Court confirmation process will be the realization that three of nine Justices -- Alito, Sotomayor and Kagan -- will be Tigers. There is probably a good joke in there somewhere about having a long losing streak to Yale in football (such as the 14-year-long streak ended in 1981) being declared unconstitutional.


By Anonymous Just Because I'm Paranoid, at Mon May 10, 08:46:00 AM:

There'd have been four from Princeton -- presumably -- but Scalia got turned down and had to go to Georgetown instead. The horror!

Five of nine justices will have gone to Harvard Law -- six if you count Ginsburg ... who started at HLS but been then followed her new husband to NYC and Columbia Law. The other three went to Yale Law.

Kagan's a shoe-in. A few chances to score a few points during confirmation, then move on.

The Supreme Court could have a big role to play in our upcoming politics.


The individual mandate in Healthcare was originally framed as a tax, which has constitutional support from 1930s precedent. Instead, because of the optics, it was recast to come under the Commerce Clause -- is what I've read. If so, it's more vulnerable to challenge.

If the Republicans do really well in November 2010, they'll try to overturn Healthcare. Obama will resist. The Supreme Court won't lead this charge, but may follow.


We're about to go to war with our own EPA over CO2 as a pollutant. This could get really nasty actually and has potentially profound implications. One recourse --assuming Republicans control the House -- is for the House to zero out EPA funding or some such. The courts -- and ultimately -- the Supreme Court could have a hand in resolving this.

Not to pick on just Princeton -- which will soon be graced with the presence of Van Jones -- but our entire higher educational system has badly let us down on AGW. There was a House hearing last week on AGW I had on in the background -- it really made me fear for our future in light of the Deepwater leak -- because we've become so literally unreasonable in our thinking. We seem destined to keep making the worst possible choices on Energy.

Separation of Powers

One of the elephants in the room -- there are several -- is that a coterie of the "Inner Inner Party" is now running the legislative process out of the White House. As this becomes clearer, we may see the Supreme Court reacting in all sorts of ways. Institutionally, the Supreme Court already has plenty of reasons to dislike Obama. If you're really paranoid, I'd worry about Kagan being Obama's mole.  

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