May 2010 - Posts

Leahy's Supreme Court Math: 14 = 15,000
Fri, May 28 2010 12:30 PM

In our blog post on May 24, we explained that the Clinton presidential library is in possession of at least 168,000 pages of documents and emails of Supreme Court nominee Elena Kagan from her four years in the Clinton White House – the largest paper trail available to lend insight into Kagan’s judicial philosophy and help determine if she is fit to be a Supreme Court Justice. 

Terri Garner, director of the William J. Clinton Presidential Library and Museum, stated in an interview that it would be “very difficult” for the library to produce such a great amount of material in time for the June 28 confirmation hearing date set by Judiciary Chairman Senator Pat Leahy (D-VT).

On May 20, POLITICO reported that in response to these concerns,

[Leahy] noted a similar situation arose during the confirmation hearings for Chief Justice John Roberts in 2005. “I don’t want to have a situation like we had with the Roberts hearing. You'll recall we got about 15,000 documents a few hours before the hearing,” Leahy said. “I would hope we would have them faster than we had them in the Roberts hearing even though that procedure was acceptable at that time to the Republicans.”

However, Leahy’s allegations that thousands of documents were received only hours before the confirmation hearings is simply false. 

The Roberts confirmation hearings for Chief Justice of the Supreme Court began on September 12, 2005.  According to records of the National Archives, it released more than 38,000 pages of material stored at the Ronald Reagan Presidential Library and Museum covering Supreme Court nominee John G. Roberts Jr.'s time as an associate counsel to President Reagan from 1982 to 1986 by August 18, 2005.  Another large batch of some 18,000 pages was released on September 2, 2005 – ten days before the hearings commenced.  By the time Roberts's confirmation hearings began September 12, approximately 61,500 pages from the Reagan Library had been made public.

The only documents released on or after September 12, consisted of a mere 14 pages, released on September 14.  Furthermore, according to the National Archives, this release occurred after the commencement of the hearings only due to “a Freedom of Information Act (FOIA) appeal of records that had been previously withheld under FOIA exemptions (b)(6) and (b)(7)(c).” 

Leahy's statements about the Roberts' hearings are wrong.  Hopefully, the Kagan Clinton Library documents will arrive at least 10 days before the hearings as they did for Roberts.  However, if they do not the hearings should be delayed. 


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DISCLOSE Act – the Citizens United “Fix” – To Come to a Vote in the House This Week
Wed, May 26 2010 4:09 PM

H.R. 5175, the DISCLOSE Act, which is an attempt by Democratic legislators to reverse the Supreme Court’s ruling in Citizens United v. FEC, will likely come to a vote in the House of Representatives on Friday.  It is crucial that this bill not be passed.  Not only is DISCLOSE a clear, unconstitutional restriction on First Amendment rights to Free Speech, but it also unnecessarily makes election law, already complex and confusing to ordinary voters, even more incomprehensible.

A piece in the Wall Street Journal co-authored by former Federal Election Commissioners Joan Aikens, Lee Ann Elliott, Thomas Josefiak, David Mason, Bradley Smith, Hans A. Von Spakovsky, Michael Toner and Darryl R. Wold – at least one of whom served on the FEC at all times from its inception in 1975 through August 2008 – wrote:

The Disclose Act…is a blatant attempt by its sponsors to do indirectly, through excessively onerous regulatory requirements, what the Supreme Court told Congress it cannot do directly—restrict political speech.

Perhaps the most striking thing about the Disclose Act is that, while the Supreme Court overturned limits on spending by both corporations and unions, Disclose seeks to reimpose them only on corporations. The FEC must constantly fight to overcome the perception that the law is merely a partisan tool of dominant political interests. Failure to maintain an evenhanded approach towards unions and corporations threatens public confidence in the integrity of the electoral system.

For example, while the Disclose Act prohibits any corporation with a federal contract of $50,000 or more from making independent expenditures or electioneering communications, no such prohibition applies to unions. This $50,000 trigger is so low it would exclude thousands of corporations from engaging in constitutionally protected political speech, the very core of the First Amendment. Yet public employee unions negotiate directly with the government for benefits many times the value of contracts that would trigger the corporate ban.

It seems unquestionable to many that the discrepancy in treatment of unions and corporations is politically motivated and “will give unions the upper hand in the coming midterm elections,” as The Hill explained in an article on Tuesday.  It quoted Bruce Josten, top lobbyist for the U.S. Chamber of Commerce as arguing: “This is changing the rules of the game in the middle of the game to clearly benefit one side.  It is a job-protection bill for incumbent lawmakers in Washington.” 

If the bill passes, it would go into effect a mere 30 days after passage, regardless of whether the FEC writes regulations to interpret the many vague provisions in the bill.  This could create regulatory chaos for the midterm elections and force independent speakers to stay on the sidelines.  Moreover, as the Center for Competitive Politics explained, “the bill contains a provision different than the one in McCain-Feingold, slowing the standard for challenging the constitutionality of the provisions.”  It goes on to note that provisions of the bill “would ensure that, if the legislation passes, it would not be overturned or remedied until well after the 2010 elections.”

In a letter to members of Congress, Americans for Tax Reform described the bill as “us[ing] the [Citizens United] ruling as an excuse to expand the scope of campaign finance regulations to strangle free speech” and “an unequivocal ban on free speech, masquerading as an exercise in accountability.”  It concluded:

The DISCLOSE Act, while cleverly named, aims to silence political speech by intimidation and onerous regulation.  Such efforts should be rejected swiftly.  Thus, on behalf of the millions of Americans we represent, we urge you to reject this assault on free speech and to vote against H.R. 5175.


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Rasmussen Poll: 47% Hold Unfavorable View of Kagan
Wed, May 26 2010 12:53 PM

Rasmussen Reports has a new poll out today which shows that 47% of American voters have a unfavorable view of Solicitor General, and Supreme Court nominee, Elena Kagan.  The poll of 1000 registered voters, which has a margin of error of +/- 3%, had the following to say about her favorable/unfavorable rating:

A new Rasmussen Reports national telephone survey finds that 41% of U.S. voters now hold a favorable opinion of Kagan but 47% view her unfavorably, up from 43% a week ago and 39% just after President Obama announced her nomination.
These findings include 15% with a Very Favorable opinion and 23% who regard her Very Unfavorably. This, too, marks a shift from the first survey when Kagan’s Very Favorables were 18% and Very Unfavorables were 17%.
By comparison, the president’s first Supreme Court nominee, Sonia Sotomayor, maintained favorables around 50% through the first three surveys following her selection, with unfavorables falling to 40%.

This can be interpreted as showing that the American people are looking for more information of the next potential Supreme Court Justice.  And it appears that as they learn more about here the more questions they have and for the time being, the less favorable she becomes. Also telling in this survey is the proof that the attempt by administration allies, and some detractors, to claim that she is anything but a liberal.  Shortly after her nomination, some had floated the idea that she wasn't as liberal as some would have liked, or as Republicans were making her out to be.  Also interesting is how closely respondents are following Kagan's nomination:

Forty-eight percent (48%) view Kagan as ideologically liberal, while 30% say she is a moderate. Only four percent (4%) see her as conservative, but 18% more are not sure. This marks little change from a week ago.

Seventy-one percent (71%) say they are following news reports about the Supreme Curt nominee at least somewhat closely. Twenty-eight percent (28%) are not following closely, if at all.

The entire poll, including poll questions and top line results, can be viewed here.  It will be interesting to see how public opinion is changed in the coming weeks when her confirmation hearings begin and she begins to answer questions from the Judiciary Committee.


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Slow Release of Kagan Files Prompts Questions about Delaying Nomination Hearings
Mon, May 24 2010 4:17 PM

Laura Meckler of the Wall Street Journal wrote in a column this past week that according to Susan Cooper, spokeswoman for the National Archives, the Clinton presidential library is in possession of approximately 168,000 pages of documents and emails that Supreme Court nominee Elena Kagan left behind after serving for four years in the Clinton White House.  Meckler wrote:

Archivists at the Clinton library have begun reviewing the material, but Cooper wouldn’t say whether they will finish before June 28, when the Senate Judiciary Committee plans to begin confirmation hearings. Already, Sen. Jeff Sessions, the committee’s top Republican, is calling for delay…

Terri Garner, director of the William J. Clinton Presidential Library and Museum, told the Tribune Co. in an interview that it would be “very difficult” for the library to produce the material in time. “There are just too many things here,” she said. “These are legal documents and they are presidential records, and they have to be read by an archivist and vetted for any legal restrictions. And they have to be read line by line.”

Now, according to Paul Bedard of U.S. News & World Report, Americans United for Life, “[o]ne of the nation's most prominent anti-abortion groups is seeking a delay in the confirmation hearings for Supreme Court nominee Elena Kagan in order to provide the Clinton library time to find and make public her key writings while a White House lawyer and later domestic policy aide.” Bedard wrote:

In a letter to Judiciary Chairman Sen. Pat Leahy and others, AUL President Charmaine Yoest wrote: "We are deeply concerned that the Senate Judiciary Committee will have insufficient time to review Elena Kagan's record before commencing her hearing on June 28, 2010. Therefore, we request that you provide whatever time is needed for members to thoroughly prepare for the hearing, even if it requires postponing the hearing date."

In her letter, Yoest argued “it is critical that committee members be given ample time to review the documents she produced while serving in the executive branch, and thoroughly question her about those writings in order to understand the philosophy she would bring to the court," because Solicitor General Kagan, unlike nominees that have previously served as judges and have therefore written judicial opinions, has been able to keep her political and philosophical beliefs private.  Yoest explained, "We at Americans United for Life, like most Americans, believe that a nominee's judicial philosophy goes to the heart of his or her qualifications to serve on the United States Supreme Court.”

Today, Sen. Jeff Sessions, Republican Ranking Member of the Senate Judiciary Committee warned he would move to slow Kagan's path to confirmation unless senators are granted full access to the files, expressing that the nomination hearings would not be adequate without time for a proper examination of the documents.  "We're heading to what could be a train wreck," he said.

President Obama has requested the documents and the White House has said it wants the materials released as quickly as possible.  Yet, as of now, the committee has given no indication as to whether it is considering delaying the start of the hearings.  There is little doubt that a delay is necessary to allow for a comprehensive review of the documents that will lend insight into Kagan’s beliefs and judicial philosophy.


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Rotunda: "Kagan's Anti Military Campaign"
Wed, May 19 2010 11:07 AM

In today's Washington Times RNLA Member Kyndra Rotunda takes a look at Elena Kagan's decision to ban military JAG officers and recruiters from speaking on campus while she was Dean of Harvard Law School.  In her Op Ed Rotunda goes in depth into the misguided stance that Kagan took while at Harvard and what impact that can have on her judicial philosophy.  Here are some of the key sections from the Op Ed:

This criticism stems from Ms. Kagan's 2005 decision to ban military Judge Advocate General (JAG) officers from entering Harvard Law School to meet and speak with law students who wanted to meet with the military recruiters because they were interested in becoming JAG officers. Why did she gag military lawyers? Because she disagreed with an existing federal statute that prohibited openly gay members from serving in the military.


What's more, Ms. Kagan clearly understood that this federal law was constitutional at the time, even before the Supreme Court ruled on the issue. In fact, the plaintiff's brief, filed in Rumsfeld v. Fair (2006), stipulated that the "Don't Ask, Don't Tell" law was constitutional. So, Ms. Kagan wanted to prevent military lawyers from meeting on campus with willing students because the military followed a law she stipulated was constitutional.

Ms. Kagan objected to another federal law that said that if a university discriminated against military recruiters, then the federal government would cut off federal grants. She could have legally barred the military recruiters if she was willing to reject the federal money. Instead, she wanted to have her cake and eat it, too: She insisted that the federal government must continue giving federal grants to Harvard while Harvard discriminated against the military because it was complying with a federal statute ("Don't Ask, Don't Tell") that she stipulated was constitutional.

The final paragraph encapsulates why Kagan's record needs to be fully vetted by Republicans and the Judiciary committee:

The problem isn't just Ms. Kagan's lapse in judgment. The context is important, too. At the time of her gag order, the United States was embroiled in two wars and it was recruiting JAG officers to serve. JAGs deploy, too. I know - I used to be one. I served alongside a JAG officer from Harvard. Denying JAG officers and willing Harvard law students the opportunity to meet and talk about opportunities to serve in the military is not fair to the military - and it is not fair to law students who are interested in serving their country. It is, quite plainly, discrimination.

In the end, this is only one issue that has been brought up in the ramp up to her confirmation hearings.  I'm sure that many will be coming out in the days and weeks to come.

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Bad News for Connecticut Attorney General Candidate Bysiewicz
Wed, May 19 2010 9:41 AM

An interesting issue that has been percolating in Connecticut over the past several months came to a head yesterday. Yesterday, the Connecticut Supreme Court ruled that Connecticut Secretary of State Susan Bysiewicz is not eligible to run for Attorney General since she does not meet Connecticut state law requirement that the Attorney General shall be an "attorney at law of at least ten years' active practice at the bar" of Connecticut. (Click here for the statute.) Bysiewicz, described as "a popular Democrat" by the New Haven Independent, originally ran for governor this year but later decided to run for Attorney General, a "fateful" decision says the Independent.

In what was described as "an unusual move without precedent in recent Connecticut political history," Bysiewicz originally filed suit in Connecticut Superior Court in February challenging the state law on grounds that her "11 years as Secretary of State qualifie[d] her because she says she is essentially running a public-interest law firm and regularly dispenses legal advice on the state's election laws." In addition, Bysiewicz argued that the "10-year requirement [was] unconstitutional under both the state and federal Constitutions." (According to her trial brief filed with the Superior Court, Bysiewicz was also in private practice for six years in the late 80's and early 90's.) In April, she got the Connecticut Superior Court judge to agree with her that her duties as Secretary of State qualified as the active practice of law. The Superior Judge did not address the constitutional arguments.

The Connecticut Republican Party immediately appealed to the Supreme Court where the court heard the case on an expedited basis on Tuesday before this weekend's Connecticut Democratic State Convention, where state Democrats will nominate the Party's candidate for Attorney General and other statewide races.

In a rare move, the state Supreme Court heard the argument and issued a ruling on the same day. Rick Hasen says, "[T]he last time I saw that was in an episode of L.A. Law."

While the court issued no opinion since it heard oral argument and decided the case on the same day, Ballot Access News' Richard Winger writes, "It appears that Bysiewicz lost on both arguments." Bysiewicz said she will not appeal the ruling. Ultimately, I don't believe there was a federal constitutional argument presented which probably helps explains why Bysiewicz won't try to go to the Supreme Court. I'm not even going to attempt to wade into an analysis of the state constitutional argument.

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Sen. Blanche Lincoln Forced to Cast Provisional Ballot
Tue, May 18 2010 3:18 PM

The Hill's Ballot Box reports that Sen. Blanche Lincoln (D-AR) was forced to vote absentee today when she showed up at her Little Rock polling place:

The workers at Lincoln's polling location noted that she had already voted, according to CNN's Dana Bash.

It wasn't an attempt at Election Day trickery. The problem was that Lincoln and her husband had requested absentee ballots, which they hadn't filled out.

"Sen. Lincoln requested an absentee ballot in the event she would be called to Washington for critical votes," Lincoln campaign spokesman Katie Laning Niebaum said in a statement.

The campaign downplayed the mishap.

"Pulaski County Court Clerk Pat O'Brien confirms this is not uncommon among voters who are unsure of their status on Election Day," Laning Niebaum added. "Sen. Lincoln and her husband are happy to cast provisional ballots in person at their home precinct today."

Dana Bash follows up with a few tweets on Lincoln's explanation.

One has to wonder: Will Lincoln be voting for herself or her current primary opponent the next time she's at the polling place?

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Was Somebody Missing from the DISCLOSE Act Hearings?
Fri, May 14 2010 10:21 AM

Former Chairman of the FEC Dave Mason makes the case that the hearings on legislation to mute the effects of Citizens United v. FEC lacked a key witness, the agency that would be tasked with administering the new law.

The Un-DISCLOSEd Witness

By: Dave Mason
Special to The Examiner
05/13/10 5:57 PM EDT

Every so often a congressional committee holds a hearing with a “mystery witness,” a whistle-blowing employee or a criminal informant who testifies from behind a screen with no name provided. It’s great theatre and sometimes provides compelling evidence.

The House Administration Committee’s recent hearings on the “DISCLOSE Act” went the mystery route one better, including (or, perhaps more accurately, excluding) a mysteriously missing witness: anyone from the Federal Election Commission, the agency that would be charged with enforcing the proposed law.

Whether an oversight or a deliberate exclusion, the omission speaks volumes about the attitude and intention of the Committee’s unseemly rush to push DISCLOSE towards passage. Apparently the Committee isn’t really interested in a serious discussion about how the legislation would work, to whom it would apply, and whether its apparent effects really are intended.

Normally, when a congressional committee considers legislation amending a statute enforced by an existing administrative agency, agency leaders are among the lead-off witnesses at the hearing.  Even if an agency objects to the legislation, Congress needs (and usually wants) to hear what the agency has to say for two reasons: to make sure they understand any objections and to make sure the legislation actually accomplishes what the sponsors intend.  It is in everyone’s interest to make sure that legislation is workable and accomplishes what the sponsors intend.

In the case of the FEC, it is likely that commissioners’ policy views would split, but current commissioners’ views, comments, and questions would be well focused on the practical issues of how or whether they could enforce the new law. The Committee heard from former Commissioners Trevor Potter and Michael Toner, but they would probably be the first to agree that hearing from current Commission leadership is an important element of legislative consideration.

Often administrative agencies can provide helpful technical comments even when the agency doesn’t favor the policy involved.  The FEC policy staff has decades of experience and will have to draft regulations implementing the new law if it passes. If asked, they would undoubtedly provide insightful questions and observations about ambiguities, gaps, and possible unintended consequences of the DISCLOSE Act. But, apparently the Committee is just in too much of a hurry--or is just not interested in a serious non-partisan legal review.

Part of the problem with election law is that a lot of people who think they are experts just aren’t, including Members of Congress.

Read the full article here.

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Who Replaces Kagan?
Wed, May 12 2010 9:17 AM

An overlooked aspect of the Kagan nomination is the question of who will replace her as Solicitor General should she be confirmed by the Senate. One legitimate knock on Kagan as Solicitor General was that she had little to no courtroom experience prior to becoming Solicitor General. It was clear to all in attendance during Kagan's first ever oral argument before the Supreme Court (and likely before any court) during Citizens United, that her inexperience hurt her. This piece from Salon discusses the sitting Supreme Court justices' treatment and perception of Kagan during her six appearance before the Court. For those who remember Republican Solicitors General such as Charles Fried, Ken Starr, Ted Olson and Paul Clement, an effective advocate before the high court is not insignificant.

At The Atlantic, Mark Ambinder reports that "Don Verrilli, an associate White House counsel, is the leading candidate" to replace Kagan should she be confirmed. More from Ambinder:

Verrilli joined the Obama administration as an associate deputy attorney general, where he helped his close friend, Attorney General Eric Holder, craft the Justice Department's new state secrets doctrine guidelines. 
A few months ago, new White House counsel Robert Bauer asked him to move a few blocks down Pennsylvania Avenue to fill an associate White House counsel's position, theoretically a demotion for such an experienced litigator.

But Verrilli knew he was paying a transient occupancy tax: the White House needed a better relationship with the Justice Department, and Verrillii, a low-key, get-along guy, was just the ticket. Verrilli spent years at Jenner and Block in Washington, representing a diverse array of clients. Copyright law is one of his specialities; he's known as the "guy who killed Grokster" on behalf of Viacom. Verrillii has argued frequently before the Supreme Court.

Why not Neal Katyal, the deputy solicitor general? Sources say that no one questions his brilliance, but his relationship with colleagues hasn't always been smooth. (Update: I screwed the pooch on this one. Katyal gets along with his Justice Department colleagues just fine. And I never should have allowed "sources" to anonymously trash someone) 

Verrillii's trial balloon appointment as SG will be viewed suspiciously by civil libertarians for his authorial role in the state secrets drama and for his record of fighting on behalf of industry against tech entrepreneurs. But he's got the trust of Holder, Bauer, and President Obama.

"Conversations about a replacement haven't even begun," a White House spokesperson said. 

An op-ed from a Washington State paper also throws out the name of Washington Governor Chris Gregoire as a possibility.

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RNLA Special Judicial Update
Mon, May 10 2010 1:33 PM

RNLA Special Judicial Update
May 10, 2010

The RNLA is sending this Special Judicial Update to all current and former RNLA Members and posting on The Republican Lawyer Blog to provide you with information on President Obama's choice to replace Justice John Paul Stevens, Solicitor General Elena Kagan. 

Despite being in the spotlight for some time, there is not an abundance of information on Kagan's views on important matters relevant to the Supreme Court. Today, the RNLA released a statement calling for Kagan to thoroughly answer questions at her confirmation hearing. More below. 

I.        Kagan is not a "Moderate"

It is worth mentioning at the start, however, that while many Obama Administration supporters have attempted to paint her as a moderate who should be considered a consensus nominee, she is not a moderate.  She works for Obama, served in the Clinton Administration and was on the 1988 Dukakis Campaign.  click here for a profile on Kagan, including information on her education and career in academia and in the Clinton administration. 

II.        Kagan Herself Advocated Candor for Judicial Nominees and for Hearings to be Substantive:  Will she live up to her own standard?

In 1995, Kagan made her views well known on how confirmation hearings should be conducted following her time as a staff lawyer on the Senate Judiciary Committee during Justice Ginsburg's confirmation hearings. Courtesy of ABC News:

Kagan argues that the Bork hearing should be a "model" for all others, because even though it ended in the candidate's rejection, the hearings presented an opportunity for the Senate and the nominee to engage on controversial issues and educate the public.

"The real 'confirmation mess' " she wrote, "is the gap that has opened between the Bork hearings and all others."

"Not since Bork," she said, "has any nominee candidly discussed, or felt a need to discuss, his or her views and philosophy."

"The debate focused not on trivialities," she wrote, but on essentials: "the understanding of the Constitution that the nominee would carry with him to the Court."

One of the panelists at the recent RNLA Policy Conference, Ed Whelan, president of the Ethics and Public Policy Center, former law clerk for Justice Scalia, and former counsel to the Senate Judiciary Committee said the following on the Kagan Standard:

Elena Kagan has written that the confirmation process for Supreme Court justices 'takes on an air of vacuity and farce' when the Senate fails 'to engage nominees in meaningful discussion of legal issues.' She's argued for 'the essential rightness -- the legitimacy and the desirability -- of exploring a Supreme Court nominee's set of constitutional views and commitments.

It's especially important that the Senate hold Kagan to the Kagan Standard.  Among Supreme Court nominees over the last 50 years or more, Kagan may well be the nominee with the least amount of relevant experience. She's been extremely guarded about her views, with the exception of gay rights, where she has been vehement in opposing federal laws she doesn't like and has worked as Solicitor General to undermine those laws. The Senate needs to explore carefully whether Kagan would indulge her own values and policy preferences as a justice.

Senator Arlen Specter (D-PA) will be one person to watch during Kagan's confirmation hearings. Specter led the charge in the Judiciary Committee in voting against Kagan for Solicitor General because she miserably failed the Kagan Standard. As Kirk Victor at The Ninth Justice writes:

Specter concluded that the Harvard Law School dean had ducked questions that he saw as important for senators to cast an informed vote on her nomination. He voted against her confirmation.

That scenario puts the ever-irascible Specter in an unusual spot since he switched parties last year to become a Democrat. Today, he faces a difficult bid to be re-elected to a sixth term. Might he seriously consider a vote against President Obama's nominee to the Supreme Court?

Specter, as former Ranking Republican on the Senate Judiciary Committee, long argued that nominees should be less evasive in their confirmation hearings. Specter used that reasoning in voting against Kagan. The left is now arguing that the handful of Republicans who joined Democrats in voting for Kagan's nomination for Solicitor General should also vote for her confirmation to the Supreme Court.  Would the same logic apply to those who voted against her, including for Senator Specter's vote? Her tenure as Solicitor General has given Senators little more to base a vote on than before and shouldn't a position that carries a lifetime appointment be held to an even higher standard than the Solicitor General? Wouldn't that give those who voted "nay" on Kagan the first time around have even more cover to do so this time? Stay tuned to see how Specter rationalizes his vote. One thing is for certain, Kagan was not nearly as forthright in her hearings for Solicitor General as she urged back in 1995 in citing the Bork hearing as a model for nominees to follow. 

III.        More on Republican Supporting Kagan for Solicitor General and Senator Specter

Kagan's nomination could cost Specter the Senate Democrat Primary nod:

The Republicans who voted "yes" on Kagan last spring include: Oklahoma Sen. Tom Coburn, Maine Sens. Olympia Snowe and Susan Collins, New Hampshire Sen. Judd Gregg, Arizona Sen. Jon Kyl, Utah Sen. Orrin Hatch and Indiana Sen. Dick Lugar.

No Democrat voted "no" but Sen. Arlen Specter (Pa.) who switched from Republican to Democrat roughly a month after the vote cast a "no" on Kagan. And, yes, you can expect that to become major issue in his May 18 primary fight against Rep. Joe Sestak (D).

Democrats are going to cite those seven Republicans as "should-be" supporters of Kagan, however as Senator Kyl explained at the time when he voted for Kagan for Solicitor General: 

I would like to make clear that my vote for Dean Kagan is only for the position of Solicitor General, and my vote does not indicate how I would vote for her if she were nominated for any other position, especially a position that is a lifetime appointment. Specifically, according to numerous news accounts, Dean Kagan is expected to be considered for nomination to the Supreme Court if an opening were to occur during the Obama administration. If she were nominated, her performance as Solicitor General would be critical in my evaluation of her suitability for the Supreme Court. 

IV.        Goldman Sachs Connection

Another area of scrutiny for Kagan will be her ties to Goldman Sachs, the banking and investment firm now facing a civil fraud lawsuit courtesy of the SEC: 

A top prospect for the Supreme Court was a paid member of an advisory panel for the embattled investment firm Goldman Sachs, federal financial disclosures show.

Solicitor General Elena Kagan was a member of the Research Advisory Council of the Goldman Sachs Global Markets Institute, according to the financial disclosures she filed when President Obama appointed her last year to her current post. Kagan served on the Goldman panel from 2005 through 2008, when she was dean of Harvard Law School, and received a $10,000 stipend for her service in 2008, her disclosure forms show. 

V.          Position on Military Recruiters at Harvard

For the most part, Republicans have reserved judgment on Kagan. This is mainly because we don't know much about her views on most controversial legal issues. However, Ed Whelan wrote a three part (Part 1, Part 2, Part 3) analysis of Kagan when she was nominated for Solicitor General. One of Whelan's main points of contention was "Kagan's opposition to the Solomon Amendment, the federal law that denies federal funding to an institution of higher education that 'has a policy or practice . . . that either prohibits, or in effect prevents',  the military 'from gaining access to campuses, or access to students . . . on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer.'" Whelan has more here on Kagan's opposition to the Solomon Amendment.

Even some liberals have criticized Kagan for her position on the Solomon Amendment.
Peter Beinart at Daily Beast:

If Solicitor General Elena Kagan gets the nod, conservatives will beat the hell out of her for opposing military recruitment on campus when she was dean of Harvard Law School. And liberals should concede the point; the conservatives will be right. […]

The United States military is not Procter and Gamble. It is not just another employer. It is the institution whose members risk their lives to protect the country. You can disagree with the policies of the American military; you can even hate them, but you can't alienate yourself from the institution without in a certain sense alienating yourself from the country. Barring the military from campus is a bit like barring the president or even the flag. It's more than a statement of criticism; it's a statement of national estrangement.

Unfortunately, her views on this matter may display Kagan's willingness to substitute sound legal reasoning for her preferred policy positions. This is best exemplified by the fact that Kagan (as a Professor not Dean) signed onto an amicus brief on the losing side of a 8-0 Supreme Court decision on the matter. 

VI.        Other Views?

Powerline also has an interesting piece on Kagan's record (or lack thereof), in "The Stealth Law Professor.

With such a nonexistent record, The Daily Beast's Paul Campos ominously asks if Kagan is "The Next Harriet Miers?"

VII.        Hiring Conservatives as Harvard Law Dean

Part of the basis for the statement of Kagan as a moderate is that she was known for fostering some goodwill with conservatives such as Ken Starr during her time as Harvard Law School Dean where she served from 2003 until she became Solicitor General in 2009. An article in The Wall Street Journal, profiles Kagan's Harvard tenure and how she managed to appoint some conservative/libertarian professors over the objections of the extreme left-wing faculty there. However, many point to the fact that Kagan's record at Harvard wasn't as favorable to conservatives as is touted by those on the left. Wendy Long at National Review's Bench Memos explains:

Only 3 out of the 43 professors Kagan hired are conservative- or libertarian-leaning: Jack Goldsmith, John Manning, and Adrian Vermeule. That means only 7% of Kagan's faculty hires were conservatives.

Not exactly a huge percentage. Overall, the Harvard Law faculty only has, at most, 8 conservative- or libertarian-leaning professors. They are: Charles Fried, Mary Ann Glendon, Allen Ferrell, Einer Elhauge, Hal Scott, plus Goldsmith, Manning, and Vermeule.

That means only 8% of the faculty under Kagan was conservative. Again, not exactly huge numbers when considered in percentage terms.

Also, Fried and Glendon are approaching retirement. Once they retire, the net effect of Kagan's supposed conservative hiring binge will have been to increase the number of conservative faculty members at Harvard by one person.

Please also click here for a great read by Carrie Severino, a former Harvard law student, who was a member of the Federalist Society at Harvard when Kagan was Dean. Severino argues, "Kagan's well-known liberal positions were what made her openness to conservatives and libertarians on campus possible." 

VIII.    Miscellaneous

In the short term, Kagan confirmation's would result in her not voting on many cases in her first few years due to recusal obligations as a result of her service as Solicitor General. SCOTUSBlog and Bench Memos have both discussed Kagan's recusal obligations.

Another minus for Kagan may also be how the sitting Supreme Court justices have reacted to her during her six oral arguments before the Court. writes, "the Solicitor General's appearances before the high court have been marked by unusually brusque treatment."

Those six arguments highlight her inexperience.  As Michelle Malkin argued in 2009 when Kagan was first rumored to be up for the Supreme Court vacancy that was ultimately given to Justice Sotomayor: 

Dean Kagan's nomination to the Supreme Court would be concerning given her complete lack of judicial or appellate experience. She has never been a judge or even argued a case in a court of appeals. It is difficult to see how her experience fundraising for Harvard Law School qualifies her for a seat on the Nation's high court.

Lastly, Kagan will have an interesting effect on the court's diversity:

Kagan would be the fourth woman to serve on the Supreme Court, following current Justices Ruth Bader Ginsburg and Sonia Sotomayor and retired Justice Sandra Day O'Connor.

She would be the third Jewish justice along with six Catholics. With Stevens' retirement, the court will have no Protestants, the most prevalent denomination in the United States.

IX.        Action Items

If you are interested in regularly receiving these Judicial Updates, please email Matt Suermann at  If you are interested in volunteering to research and write on Solicitor General Kagan's nomination and other judicial issues, please email Justin Riemer, RNLA Programming Director, at


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More on Specter’s Kagan Problem: What do Specter and Kagan Have in Common?
Mon, May 10 2010 10:05 AM

Republican turned Democrat Senator Arlen Specter and Elena Kagan have one thing in common when it comes to the Senate's role in advice and consent: Both have expressed frustration with nominees' unwillingness to be more forthcoming during their confirmation hearings. Ironically, it was Senator Specter (D-PA) who took to the Senate floor in March of 2009 and explained that he was voting against Elena Kagan for Solicitor General for her reticence during their meeting and correspondence. First, however, is an interesting note from ABC News that reveals Kagan's frustrations with the Supreme Court confirmation process that she shared following her time as a staff attorney on the Senate Judiciary Committee during Justice Ginsburg's confirmation hearings:

"When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce."

Kagan's opinion appears in a 1995 book review of "The Confirmation Mess" by Stephen Carter. In her lively and at times humorous piece, Kagan takes issue with Carter's 1995 thesis that the process has broken down, in part, because Senators are too focused on getting candidates to reveal their views on important legal issues.

On the contrary, Kagan wrote, the process has not broken down because nominees are pressed too hard, but because they are not pressed hard enough (emphasis added).

"Senators effectively have accepted the limits on inquiry," Kagan wrote. She said the process had become one where "repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis."

Blaming both the nominees for stonewalling at times and the Senators for failing to probe, Kagan wrote that the hearings "serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government."

Interestingly, Kagan points to the confirmation hearings of then-D.C. Circuit Judge Robert Bork as an example to follow:

Kagan argues that the Bork hearing should be a "model" for all others, because even though it ended in the candidate's rejection, the hearings presented an opportunity for the Senate and the nominee to engage on controversial issues and educate the public.

"The real 'confirmation mess' " she wrote, "is the gap that has opened between the Bork hearings and all others."

"Not since Bork," she said, "has any nominee candidly discussed, or felt a need to discuss, his or her views and philosophy."

"The debate focused not on trivialities," she wrote, but on essentials: "the understanding of the Constitution that the nominee would carry with him to the Court."

I don't think anyone realistically thinks that Kagan is going to be as forthcoming (or, frankly, as confrontational) as Bork. However, as a former insider into the process who is on the record with her frustrations with nominees playing it safe, Kagan has little excuse to be evasive in her hearings. By being more forthcoming, she can help reverse a trend that we have seen on both sides in the confirmation process, a trend that Senator Specter has also found troubling.

As Matt wrote earlier, as a Republican, Senator Specter voted against Elena Kagan for Solicitor General. Please click here for a video of his explanation from the Senate floor.

Hopefully, Solicitor General Kagan decides to open up a bit more during her meetings with Senators this time around than she did with Specter and others before. If she doesn't, then what gives the 31 senators who voted against her the first time for Solicitor General a reason to vote for her this time? The Solicitor General, while an important position, is not a Constitutional officer, and its duties are to represent the Obama administration's legal positions, not to be a neutral arbiter on our nation's most powerful and important judicial body. Moreover, Solicitors General serve at the pleasure of the President, while Supreme Court justices serve for life. In sum, the decision is much more important, and as a result, the bar is set much higher for Supreme Court justices than Solicitors General. Moreover, an argument can be made that a nominee with such little track record, including no judicial opinions to analyze, also has to explain his or her views on the Constitution and on the proper role of a judge in decisionmaking. (More on Kagan's lack of a track record later, but suffice to say, there isn't much there.) 

If Kagan doesn't open up, we will see if Senator Specter, now fighting for his political life, has the same fortitude he did the first time around.

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Arlen's Kagan Problem
Mon, May 10 2010 7:22 AM

All during the ramp up to the roll out to Elena Kagan the press was mentioning that all Democrats voted for her to be confirmed as Solicitor General.  Well, that is technically true but they should add a disclaimer to that statement.  When Arlen Specter (D-PA) was still a Republican, prior to his jump to the Democrat Party to save his own job, he voiced serious concerns--which are outlined in a letter he sent to Kagan-- and voted against her confirmation to become Solicitor General.

The first paragraph says it all about how she handled her confirmation hearing and why to Specter it was unacceptable to earn his vote:

I write to express my dissatisfaction with many of the answers you provided to the Committee in response to my written questions following your confirmation hearing.  I believe these answers are inadequate for confirmation purposes.

This begs the question, what will Specter do now?  Can her seriously consider a yes vote to elevate her to the high court, considering his previous statements and no vote against her.  In the 15 months since that letter was written not much on Kagan's resume has changed.  Her only new item to add to her resume is that she argued, for the first time in her career, a case in a court of law.  So, in the long run Kagan's resume and relevant experience hasn't changed.  But, for Arlen Specter his world has been turned on its head.

When Specter jumped ship to become a Democrat, he did so because it was becoming abundantly clear that he would not be reelected to the US Senate as a Republican.  Now, with only 8 days to go until the PA Democrat primary, Specter is finding himself in a similar situation and his vote against Kagan, among other things, will most likely be used against him by his opponent.  Chris Cillizza of The Fix notes the problems and tanking poll numbers that Specter is experiencing and how Obama's announcement today will only complicate Specter's reelection problem.

A  tracking poll by Muhlenberg College in the Pennsylvania Senate race shows a disturbing trend for Sen. Arlen Specter (D) as he seeks to fend off a primary challenge from Rep. Joe Sestak.

A week ago Specter led Sestak 49 percent to 40 percent. By Sunday, Sestak led 46 percent to 42 percent.

Sestak's advertising and the increased attention the race is getting appear to be paying dividends. While Specter's favorability dropped by eight points in one week's time, Sestak's has risen by seven. Even though voters know Specter much better than Sestak, the congressman's favorability (52 percent) now exceeds the senator's (50).


Momentum, at the moment, is all on Sestak's side although Specter retains two aces in the hole: 1) the support of President Obama who has lent his voice to radio ads running in the Philadelphia area in support of Specter and 2) the backing of organized labor, which is still a potent force in a Democratic primary in Pennsylvania.

It seems that the chicken's are coming home to roost for Specter.  At this point the question will be, will Specter be a lame duck Senator by the time the confirmation hearings roll around?  One thing is for sure, the Kagan Problem will be used by both sides to try and paint Specter into a corner.  How he will handle it all depends on which Specter decides to show up on a given day.



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Looks like it’s Kagan
Mon, May 10 2010 6:09 AM

Various outlets are reporting that President Obama is expected to nominate Solicitor General Elena Kagan to replace Justice John Paul Stevens on the Supreme Court. The announcement is expected to come sometime mid-morning today.

Click here for a bio and profile on Kagan.

Click here for instant analysis from National Review's Bench Memos.

Click here for information on her role in discouraging military recruitment  on campus while Dean of Harvard Law.

Click here for thoughts on why she could be considered "The Stealth Nominee."

Stay tuned for an official statement from RNLA on Kagan's nomination.

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House Hearing on Citizens United Fix
Fri, May 7 2010 2:22 PM

The Committee on House Administration held a hearing yesterday on "H.R. 5175, The DISCLOSE Act, Democracy is Strengthened by Casting Light on Spending in Elections." Among those testifying before the committee on the Citizens United fix were David Bossie, President of Citizens United, and Ted Olson, the man who successfully argued the case before the Supreme Court. Please click here for a witness list, statements, and an archived webcast of the hearing. Please click here for the text of the bill. Thoughts and observations later.

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Citizens United, Elena Kagan, and Banning Books
Fri, May 7 2010 10:36 AM

Former FEC Chairman Brad Smith has a great piece in the American Spectator discussing the scope and ramifications of Citizens United v. FEC.


Citizens United We Stand

By Bradley A. Smith from the May 2010 issue


March 24, 2009, was a turning point in the long-running battle to restrict political speech, aka "campaign finance reform." On that day, the Supreme Court heard oral argument in Citizens United v. Federal Election Commission, in which the conservative activist group Citizens United challenged the provisions of the McCain-Feingold law that had prohibited it from airing a documentary film, Hillary: The Movie, through video on demand within 30 days of any 2008 Democratic presidential primary.


In the course of the argument, Deputy Solicitor General Malcolm Stewart, an experienced Supreme Court litigator, argued that a 1990 precedent, Austin v. Michigan Chamber of Commerce, gave the government the power to limit any political communication funded by a corporation, even a nonprofit such as Citizens United. Justice Samuel Alito asked Stewart if that power would extend to censoring political books published by corporations. Stewart responded -- consistent with the government's position at all stages of the case -- that yes, it would. There was an audible hush -- if such a thing is possible -- in the court. Then Justice Alito, appearing to speak for the room, merely said, "I find that pretty incredible."


Incredible or not, that was, and had been for many years, the position of the U.S. government. But until that moment, it seemed to have never quite sunken in with the justices. Americans are willing to accept far more abridgements of free speech than we sometimes like to believe, but the idea of banning books strikes an emotional chord that something described simply as "prohibitions and limits on campaign spending" does not. Americans may not always live up to the Bill of Rights, but Americans do not ban books. A stunned Court eventually asked the parties to reargue the case, to consider whether Austin should be overruled.


On reargument last September, Solicitor General Elena Kagan tried to control the damage, arguing that the government never actually had tried to censor books, even as she reaffirmed its claimed authority to do just that. She also stated that "pamphlets," unlike books, were clearly fair game for government censorship.


Read the full article here.

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