June 2010 - Posts

Kagan Likely to Accessorize the Black Judge's Robe with a Political Hat
Wed, Jun 30 2010 2:28 PM

At yesterday's hearings, Elena Kagan dodged several lines of  inquiry questioning whether, given her political background, she will be able to remove her "political hat" and assume a "judge hat."

At one point, Senator Tom Coburn (R-OK) noted probingly, "Elections have consequences. I would expect the President to nominate someone who shares his values.  You've fought for a lot of causes in your life."  Kagan did not hesitate to fire back at him:  "[T]hat [political] hat has not been on for many years. I've had a 25-year career in law; of that time I spent four years in the Clinton White House. The major part of my legal career has been as a scholar and teacher of the law."

However, even in academia, some of Kagan's captured moments of candor show that she doesn't have a problem wearing many hats at once, and frequently used her position as Dean to put on her political hat and advocate her partisan views.  While Dean of Harvard Law School, Kagan spoke at an alumni awards dinner for then-Senator Obama and waxed on about his 2004 speech at the Democratic National Convention:  "He said a few words and the place was mesmerized. You could have heard a pin drop and that's all in part because of these rock star qualities. The eloquence, the magnetism, the great looks, the brilliance."

While moderating a 2005 panel discussion on President George W. Bush's Supreme Court nominee, Harriet Miers, Kagan and the members of the panel mocked Miers' lack of name recognition and questioned her legal qualifications.  She went on to say "we don't know much about [Miers'] views" and quipped, "Honestly, the Republicans have a little bit of reason, you know, to, you know, want to know better who this person is too."  Ironic, considering Kagan has faced much of these same criticisms throughout her confirmation process given that she has less legal experience than any other nominee in that last 50 years and has never tried a case before a jury and she argued her first appellate case merely nine months ago. As Senator Herb Kohl (D-WI) said in his opening statement to Ms. Kagan on Monday, "We have less evidence about what sort of judge you will be than on any nominee in recent memory. Your judicial philosophy is almost invisible to us." And thus far, the hearings have not offered much more insight into her judicial philosophy. (See earlier blog post:  The Kagan Hearings:  Fruits, Vegetables, and a Waste of Our Time.)

In 2007 at the Harvard Law School commencement ceremony, Kagan also used the opportunity to blast Bush administration officials and advisors, naming specifically former Attorney General Alberto Gonzales and former chief of staff Andy Card, regarding the terrorist suspect wiretapping program.  Kagan lauded former Department of Justice official Jack Goldsmith who spoke out against certain aspects of the wiretapping program and criticized the others:  "This is a story, to put it bluntly, of some lawyers who failed to respect the rule of law and of others … who stood up for and vindicated it." 

RNLA Executive Director Michael Thielen mused in a recent article for the RNLA, "Is Obama appointing a political lawyer to the Supreme Court because he knows she will protect his agenda?"  Her willingness to promote the liberal agenda at Harvard shows she may be prone to wearing her political hat with her black robe.

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The Kagan Hearings: Fruits, Vegetables, and a Waste of Our Time
Wed, Jun 30 2010 10:41 AM

Senator Tom Coburn (R-OK) asked an illuminating question to Elena Kagan during yesterday's confirmation hearings:


The gist of the question was: Could Congress pass a law saying Americans had to eat three vegetables and three fruits every day? Would that be valid under the Commerce Clause?

In an answer displaying the true absurdity of what the confirmation hearings have devolved to, Kagan danced around the question. While admitting that it "sounds like a dumb law," she did not deny that the Commerce Clause gave Congress the right to pass such a law. In what has become cliché for judicial nominees, she gave the "it's not our job in the courts to strike down dumb laws" answer. OK, I understand that she can't say whether or not that specific law would be unconstitutional; for all we know such a law could be passed and Kagan would have to rule on its constitutionality if she were confirmed to the Supreme Court. However, isn't she sitting there to discuss her judicial philosophy? Can't she at least let us know her general thoughts on an extremely important part of the U.S. Constitution?

The most troubling part of her answer is that she refused to elaborate on any limitations to what laws Congress could pass under the Commerce Clause. Earlier, Senator Cornyn (R-TX) brought up the Commerce Clause in the context of the individual mandate to purchase health insurance. There, Kagan did say there are "some limits" to a law passed under the Commerce Clause, mainly one that was "not itself economic in nature," but again did not go any further. You probably don't have to be a constitutional scholar to guess that, at least theoretically, some non-economic activity would be safe from regulation under the "Commerce" Clause.

Are we really supposed to believe that she doesn't have anything else to say on this? Any law student who has taken Constitutional Law has at least given a passing thought to whether the legislation in question in cases like Lopez or Morrison was constitutional. In an era of increasing government regulation and control over both the economy and in our personal lives, Kagan's non-answer is not good enough. Especially when it relates to a part of the Constitution that Congress uses as a catch-all when passing legislation.

Much has been said about Kagan's 1995 writing where she lamented the lack of disclosure by judicial nominees, calling the confirmation hearings a "vapid and hollow charade." Kagan was even reminded about it a few times during yesterday's hearings. I suppose it is hard to blame her. She knows she can dodge these questions, charm the Senators with her admitted good sense of humor, play it safe, and likely be confirmed, perhaps with even a few Republican votes. I don't think anyone really expected her to be more forthcoming than past nominees. It makes it no less frustrating though.

Coburn's question was smart because it illustrated how little of substance is covered in these hearings. No matter how ridiculous the hypothetical, the nominee will not give a definitive opinion on its legality. Will anyone really walk away from these hearings knowing much more about Kagan's view of the Constitution than when we started? Sadly, the answer is no.

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Lt. Col. Orson Swindle, Vietnam POW, on Kagan's Military Views
Tue, Jun 29 2010 10:22 AM

Today, Orson Swindle, a Lieutenant Colonel in the Marine Corps and a decorated Vietnam prisoner of war, as well as a former Commissioner of the Federal Trade Commission and Assistant Secretary of Commerce during the Reagan administration, spoke with the RNLA about the Kagan confirmation hearings and specifically on the issue of military recruiting while she was Dean of Harvard Law School.

Swindle noted that as he listened to Kagan's testimony this morning, one thing kept cycling through his mind: "To bind this, it takes a willing suspension of disbelief."

Swindle noted that in over the 6 ½ years he spent serving and as a prisoner of war in Vietnam, soldiers heard over and over again – "We oppose the war, we don't support the mission, but we support the troops."  "We abhor that kind of pandering," Swindle said, and noted his disdain for Kagan's repeated statements that she supports the troops.  "Her actions show something entirely different, they show a high level of disregard for the military and its mission."  Moreover, emails show that "Dean Weber [assistant dean for career services at Harvard Law School] expressed that though Dean Kagan had made her position (opposition) to military recruiting very clear, the university president felt differently."  Thus, had Kagan had her way she likely would have significantly reduced, if not completely banned, military recruiters from Harvard Law School. However, the university president overruled her and prevented this from happening.

Swindle noted that this is the attitude of too many in the current administration – they do not have a respect for the culture of the military, nor do they understand it.  Moreover, he explained that despite her discussion of the rule of law and the rule of law that applies to military, Kagan does not fully grasp the fact that military law is distinctly different from civilian law and different rules are necessary to pursue the extraordinary and incomparable mission of the military. 

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A Few Highlights from Day 1 of Kagan Hearings
Mon, Jun 28 2010 4:48 PM

We thought we would highlight a few notable moments from today's Supreme Court confirmation hearings of Solicitor General Elena Kagan:

1.    Senator Klobuchar's (D-MN) flip-flip on the importance of judicial experience. As reported by Senate Republicans, Sen. Klobuchar said three weeks ago: "[I]f we just put judges on the Court that have handled no difficult cases, that haven't been in the arena, or people who have never been judges before and so they didn't have those difficult decisions, I don't think we'd have a strong Judiciary." Today, Sen. Klobuchar was singing a different tune, when she said: "Now, even with the variety of legal experiences that you have had, questions have been raised as to whether it is appropriate to nominate someone to the Supreme Court who has never been a judge before." Senator Klobuchar, who some have mentioned as a potential Supreme Court pick, should know better to have not worked the experience angle into her opening remarks.

2.    Senator Scott Brown's (R-MA) introduction: As Senator Brown remarked, it is a "long standing tradition" for Senators of the home state of the nominee to introduce that nominee. While originally from New York, Kagan lived in Massachusetts during her time as Dean of Harvard Law (and presumably while she went to law school there as well) and apparently considers it her home state. Brown did not take a position on Kagan during his introduction and said he looked forward to a "thorough and fair examination" of Ms. Kagan's record. Brown's vote will be important for both sides in this debate. If the Democrats peel off a Scott Brown, Olympia Snowe, Susan Collins, Lindsey Graham, or other more moderate Republican Senator, then President Obama can say he gave us a consensus nominee.

3.    Senator Lindsey Graham (R-SC): Senator Graham mentioned Kagan's admiration for Judge Aharon Barak as a negative and something she would have to elaborate on:

Your judicial hero is an interesting guy. You're going to have a lot of explaining to do to me about why you picked Judge [Aharon] Barak as your hero because when I read his writings, it's a bit disturbing about his view of what a judge is supposed to do for society as a whole, but I'm sure you'll have good answers and I look forward to that discussion.

Kagan had previously mentioned the controversial Aharon Barak, a retired judge formerly on the Supreme Court of Israeli, as her "judicial hero." (Please click here for more on Barak.)

More to follow….

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Sotomayor: Then Vs. Now
Mon, Jun 28 2010 12:14 PM

It looks like, in the words of National Review, Justice Sonia Sotomayor has had a "Confirmation Conversion".  Case in point are decisions that were handed down today where she the 2010 version of Sonia Sotomayor is different then what she said in her confirmation hearings only a year ago.

Justice Sotomayor sided with Justices Stevens, Ginsburg, and Breyer. That is noteworthy on its own, but it is especially noteworthy in light of the fact that the White House and its allies bent over backwards to sell Sotomayor as the next John Roberts. According to their narrative, Sotomayor was a restrained and non-ideological jurist who would faithfully apply the law and the original meaning of the Constitution. During her hearings, nominee Sotomayor did her best to perpetuate that idea.

On the use of foreign law, Justice Sotomayor stated, “I will not use foreign law to interpret the Constitution or American statutes. I will use American law, constitutional law to interpret those laws, except in the situations where American law directs a court.” But, as Senator Coburn has done a nice job of highlighting, that commitment did not stop her from siding with the liberal justices in Graham v. Florida, citing foreign law to hold that it is unconstitutional to sentence a juvenile offender to life without parole for a non-homicidal crime.

On the Second Amendment, Justice Sotomayor took the absurd step of pointing out that “one of my godchildren is a member of the NRA. And I have friends who hunt. I understand the individual right fully that the Supreme Court recognized in Heller.” According to Sotomayor, “I understand that how important the right to bear arms is to many, many Americans.” But, as the McDonald decision demonstrates, she didn’t understand it to be protected by the Constitution.

The fact that Sotomayor was able to say one thing to be confirmed and then acted a completely different way once on the bench.  As National Review closes, it points out the stakes (and food for thought) for the Kagan hearings, and quite frankly, for all future hearings.  Especillay when a nominees record doesn't always match what they are saying on the hearing room.

So what does this mean for the Kagan hearings? Expect a confirmation conversion, and don’t buy it.
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Filling Byrd’s Senate Seat
Mon, Jun 28 2010 7:42 AM

The passing of Robert Byrd (D-WV) leaves West Virginians with the task of replacing a man who has represented the state in the U.S. Senate since 1959. Jonathan Allen of Politico writes on the procedure for filling the seat and apparentlythere is some ambiguity in the state election law statutes on the matter:

West Virginia Gov. Joe Manchin, a Democrat, has the power to appoint a successor to Byrd – but, because Byrd died at the beginning of this week and not the end, it's not entirely clear whether that person will be a short-timer in the Senate or serve more than two years.

Under West Virginia election law, Manchin surely would have been able to appoint someone to fill the entire remainder of Byrd's term had Byrd died after July 3 – or with less than 30 months left to go on a term that expires Jan. 3, 2013. But with more than 30 months left of an "unexpired term," the law stipulates that he tap an interim successor until an election can be held.

That law, however, isn't clear on two points within the construct: First, the law is silent on when, exactly, a vacancy occurs – at the time of death, when the Senate informs the state or when the governor declares it? – and the law for calling a special election is written in a way that suggests that it couldn't be held until the date of the next regularly scheduled election in 2012.

Here's the relevant wording from the West Virginia code: "If the unexpired term of any office is for a longer period than [30 months], the appointment is until a successor to the office has timely filed a certificate of candidacy, has been nominated at the primary election next following such timely filing and has thereafter been elected and qualified to fill the unexpired term."

West Virginia held this year's primary election in May and does not have another regularly scheduled election until 2012.

Please click here for the West Virginia statute (§3-10-3) from the Secretary of State's website.

Could the state hold a primary and then have a special election in November? States routinely throw together special elections in less time. What if both the Democrats and Republicans settled on candidates and no primary was even needed?

The Washington Post has also written on the matter.

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RNLA Chair Norcross on Kagan's Troubling First Amendment Record
Thu, Jun 24 2010 12:34 PM

This morning, RNLA Chair David Norcross participated in a press conference on the steps of the Supreme Court to speak on the nomination of Solicitor General Elena Kagan to the Supreme Court. Norcross was joined by representatives from the Committee for Justice, Center for Military Readiness, Judicial Action Group, Concerned Women for America, Liberty Center for Law and Policy, and Americans United for Life – each addressing different aspects of Kagan's record, or lack thereof, that show her to be unfit to serve as a Justice of the Supreme Court.

Norcross addressed what he called the most troubling aspect of Kagan's record – her past statements and writings regarding the First Amendment.  He discussed Kagan's view that what makes a piece of legislation affecting the First Amendment constitutional or unconstitutional is not its practical consequences, but the motives of its authors – a theory completely contrary to Supreme Court jurisprudence. 

Further, he argued that Kagan's involvement on behalf of the government in the Citizens United case made clear that she favors political censorship.  During the Citizens United hearing, stated that "a pamphlet is pretty classic electioneering" and the government could restrict their distribution.  This position amounts to government censorship, exactly the kind of restriction on speech that the First Amendment was designed to protect against. 

Moreover, while an aide in the Clinton White House, she co-authored a memo to President Clinton in which she stated that despite the Supreme Court ruling in Buckley v. Valeo, money arguably does not amount to speech and that attempts to restrict who can contribute and spend money in the political area should be advanced.  Norcross emphasized that money is required to speak to a mass audience of voters and by limiting it, one is limiting the ability to speak about politics – something the Supreme Court has upon several occasions held to be unconstitutional under the First Amendment.

A video of the press conference will be available soon. Please click here for the RNLA press release on Norcross' statement. 

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RNLA Leaders Urge House Leadership to Vote Against DISCLOSE Act
Thu, Jun 24 2010 11:26 AM

The House of Representatives has taken up floor debate on the DISCLOSE Act today. In response, leaders of the Republican National Lawyers Association wrote to Speaker Nancy Pelosi and Republican Leader John Boehner and urged them to vote against the bill. Please click here for the RNLA's letter.

A vote on the legislation is expected this afternoon.

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Castle may Switch Vote on DISCLOSE Act
Tue, Jun 22 2010 4:19 PM

The Hill is reporting that Rep. Mike Castle (R-DE), "one of only just two Republican sponsors" of the DISCLOSE Act "is so upset about late changes to the measure he is considering withdrawing his support and voting against it." More from The Hill:

"He's absolutely opposed to the exemption," Castle spokeswoman Kate Dickens told The Hill. "The exemptions are getting bigger and bigger. I don't think they are even done yet."

When asked whether the exemptions could jeopardize his vote for the overall bill, Dickens said: "Yes, it really could."

"This is a slippery slope," she said. "It's just disclosure, for God's sake … now you're just handing talking points to those who oppose the bill."

This is obviously potential bad news for Democrats. Castle, while a moderate and past supporter of campaign finance legislation, is respected and is giving bipartisan cover for Democrats on the issue. (Castle is also the Republican nominee for Delaware's open U.S. Senate in the upcoming November election.) Rep. Walter Jones (R-NC) is the other Republican co-sponsor in the House. No word on his response to the changes in the bill. There are no Republicans co-sponsoring the legislation in the Senate.

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Update on DISCLOSE Act: Another Deal Cut, Hearing Postponed
Thu, Jun 17 2010 1:39 PM

Democrats have carved out another exception in addition to the one reported yesterday, apparently this time for the Sierra Club. Please click here for Roll Call's report on the deal. (Note: subscription is needed to view the article.) Rep. Dan Lungren (R-CA), Ranking Member of Committee on House Administration, responded to the deal:

Without any regard to the important responsibility of the Congress to uphold the Constitution, Democrats continue to broker backroom deals that inequitably grant free speech rights to some while denying others.

Democrats must stop auctioning off First Amendment rights. The rights recognized in our Constitution are not ours to deny or grant, only to protect.

It looks like a hearing originally scheduled for 3:00 pm this afternoon has now been postponed. I'm told there is still a chance for a hearing today. Politico says we may get a vote on the floor tomorrow.

Finally, Hans von Spakovsky writes at National Review on the legislation, calling it a "modern-day version of the Alien and Sedition Acts."

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RNLA Co-Chair Mitchell: "The NRA carve-out is a clear example of a congressional speech license."
Thu, Jun 17 2010 8:46 AM

Cleta Mitchell, partner at Foley & Lardner who works in campaign finance law, RNLA co-chair, and member of the NRA's board of directors wrote an op-ed in today's Washington Post addressing the NRA exemption from the DISCLOSE Act carved out by House Democrats this week. Mitchell said:

The NRA "carve-out" reaffirms the wisdom of the First Amendment's precise language: "Congress shall make no law . . . abridging the freedom of speech."

Congress can't help itself. Since 1798, with the Alien and Sedition Acts, incumbent politicians have yearned for legal duct tape for their opponents' mouths. The Disclose Act is a doozy of a muzzle.

For its part, the NRA -- on whose board of directors I serve -- rather than holding steadfastly to its historic principles of defending the Constitution and continuing its noble fight against government regulation of political speech instead opted for a political deal borne of self-interest in exchange for "neutrality" from the legislation's requirements. In doing so, the NRA has, sadly, affirmed the notion held by congressional Democrats (and some Republicans), liberal activists, the media establishment and, at least for now, a minority on the Supreme Court that First Amendment protections are subject to negotiation. The Second Amendment surely cannot be far behind.

Moreover, Mitchell emphasizes that the legislation is a clear violation of the recent Supreme Court ruling in Citizens United, noting:

In Citizens United, the court held that the First Amendment doesn't permit Congress to treat different corporations differently; that the protections afforded political speech arise from the Constitution, not Congress. Otherwise, it would be tantamount to a congressional power to license the speech of some while denying it to others.

The NRA carve-out is a clear example of a congressional speech license.

She concluded by noting that the DISLCOSE Act, despite its name, is simply a partisan piece of legislation aimed at silencing speech viewed as politically disadvantageous:

[T]he Disclose Act isn't really intended to elicit information not currently required by law. The act serves notice on certain speakers that their involvement in the political process will exact a high price of regulation, penalty and notoriety, using disclosure and reporting as a subterfuge to chill their political speech and association.

It is only disclosure, say the authors. And box-cutters are only handy household tools . . . until they are used by terrorists to crash airplanes.

This is not just "disclosure." It is a scheme hatched by political insiders to eradicate disfavored speech. There is no room under the First Amendment for Congress to make deals on political speech, whether with the NRA or anyone else.

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Changes Made to DISCLOSE Act
Wed, Jun 16 2010 11:12 AM

We are a little behind the curve here, but a deal was struck on Monday that will exempt groups like the National Rifle Association from provisions in the DISCLOSE Act. David Eggen of The Washington Post writes:

House Democrats have reached a compromise that would exempt the National Rifle Association and some other nonprofit groups from having to comply with stringent new campaign finance disclosures aimed primarily at large corporations, sources said Monday.

The deal paves the way for a House vote as early as later this week on the legislation, which is aimed at pushing back against a Supreme Court ruling earlier this year that freed corporations, unions and nonprofit groups to spend unlimited funds for or against political candidates.

Specifically (as reported by The Washington Post and USA Today), under the exemption, non-profits more than a decade old with "more than 1 million members and that receive 15 percent or less of their funding from corporations would not have to abide by a key requirement [of the DISCLOSE Act] to disclose top donors."

Most of the press here has focused on the fact that the change was made to appease the NRA; however, it has been reported that a "handful of other large organizations, including the AARP seniors group and the Humane Society..." may also be exempt from the disclosure requirements.

At least one former proponent of the bill, the U.S. Public Interest Group, has withdrawn their support for the bill according to USA Today. In addition, The Hill reports that the Sierra Club, who had previously not taken a position, is now opposing the bill. The New York Times reports that another former likely supporter of the bill, the Alliance for Justice, is now opposing the bill. However, other supporters, including the Campaign Legal Center, Common Cause, the League of Women Voters, Democracy 21 and Public Citizen say they intend to support the change.

This change probably brought some pro-Second Amendment Blue Dog Democrats on board who were previously uncommitted. As is often the case with the unruly Democrat Congressional caucus, they now run the risk of losing progressives who have no interest in doing the NRA any favors. While it has not been reported, I would be curious to know how much the AARP was involved in this compromise.

A vote on the legislation in the House is possible later this week. 

by Justin Riemer | with no comments
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More Time Still Needed to Properly Vet Kagan
Mon, Jun 14 2010 10:49 AM

In the past two weeks, the William J. Clinton Presidential Library has released two batches of documents pertaining to Supreme Court nominee Elena Kagen's tenure in the Clinton administration.  According to The Wall Street Journal, the first batch – approximately 46,500 pages of documents from Kagan's time serving as deputy director of the Domestic Policy Council in the Clinton White House from 1997 to 1999 – reportedly consisted mostly of "documents sent to Ms. Kagan, such as reports, news clippings and press releases, rather than memos she wrote herself."  The documents, if nothing else, revealed that Kagan dealt with a broad array of policy issues during her time spent at the heart of the White House policymaking operation.  The second batch, released last Friday, consisted of some 42,000 more documents from Kagan's time serving as White House counsel from 1995-1996.  Neither set of documents includes an estimated 70,000 pages of e-mails written by or to Kagan – the documents most likely to shed some light on Kagan's views. 

On Friday, Senator Jeff Sessions (R-AL), top Republican on the Judiciary Committee, issued a press release addressing the pace of document production and approximately 1,800 pages that are being withheld from the public for reasons of privacy and confidentiality:

I remain deeply concerned that Ms. Kagan's records will not be fully produced in time for the Committee to conduct a proper review. With just over two weeks until the hearing, we are still waiting on nearly 70,000 pages of documents containing Ms. Kagan's email records from her time in the Clinton White House. […]

We are also still waiting on material from the Department of Defense relating to Ms. Kagan's decision as Dean of Harvard Law School to discriminate against military recruiters and remove them from the campus recruiting office. These actions, in defiance of federal law, required intervention from the Department of Defense. I asked that records relating to the DOD's contact with Harvard be provided no later than today.

A good portion of Ms. Kagan's record has still not been provided to the Committee. But based on what we already know from her memos as a Supreme Court clerk, her time in the Clinton White House, and her controversial tenure as Dean of Harvard Law School, it is clear that Ms. Kagan has demonstrated both strong liberal views and a willingness to substitute those views for sound legal judgment.

Given this record, and the fact that Ms. Kagan has such sparse legal experience, I am concerned about whether Ms. Kagan will suddenly be able to set aside the political agenda that has defined such a large portion of her career."

Read the entire release here.

While an op-ed in The New York Times argues that these documents show Kagan to be an "adept centrist — much like her old boss — who tried to remain thoughtful while shielding President Bill Clinton from ideological extremes."

However, it is important to keep in mind that Kagan served at the pleasure of the President and was therefore tasked with implementing the administration's positions, not her own.  Thus, it's no surprise that these documents show her taking moderate stances on many issues, similar to the position of her boss. She was following orders.  Moreover, it is telling that her liberal agenda at times got the best of her, despite her boss' centrist views on many issues.  Recently released documents revealed that Kagan led the charge against a bill that would limit partial-birth abortion. 

Despite the fact that a leader with the American Medical Association wrote in 1997 "we all agree" that partial-birth abortion "is not good medicine," and an expert panel from the American College of Obstetricians and Gynecologists could not find any situation under which partial-birth abortion was the only method able to save a woman's life or health. The Weekly Standard reported:

Kagan ignored the medical experts and asserted that doctors should nonetheless be able to perform abortions on mostly-delivered infants:

"Given the state of medical evidence on this subject, an exception for women who need the procedure to prevent serious harm is appropriate. Such an exception would enable the attending doctor -- the person with the most relevant knowledge -- to make the complex decision whether the procedure is in fact medically necessary in a given set of circumstances."

We can agree with The New York Times op-ed on one point:  "We hope that other documents to emerge in the weeks to come, and her confirmation hearings starting this month, will help fill in the many blanks about the nature of a future Justice Kagan."  An estimated 80,000 documents remain to be released, which is still an extraordinary amount of material to be sifted through in order to properly vet a nominee to our highest court. As Curt Levey of Committee for Justice explained in a release on Friday:

Because Kagan lacks a judicial record and has produced little in the way of scholarly writing, she bears 'the burden of proof' in demonstrating that she is fit for the nation's highest court, as Sen. Kyl noted this week.  Allowing time for a thorough review of the Library documents is a necessary part of meeting that burden.

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Another Victory for Citizens United
Thu, Jun 10 2010 2:11 PM

Citizens United continues its winning streak, this time in front of the Federal Election Commission (FEC). Citizens United recently went to the FEC to argue that its films should qualify for what is known as the "media exemption" or "press exemption" under the Federal Election Campaign Act (FECA). This exemption is what allows newspapers, TV networks, and other news outlets to cover and editorialize on political campaigns without having to negotiate all the red tape that organizations regulated by the FEC have to deal with, including disclosing donors' info.

The FEC has historically used a two-step process to determine whether an entity qualifies for the media exemption:

1. Is the entity in question a press or media entity?

2. Is the entity controlled or owned by a political party, committee, or candidate and is the entity acting as a press entity in conducting the activity in issue?

(There is obviously a lot more analysis packed into those two questions but that's the gist of it.)

The FEC agreed 4-1 that Citizens United films did quality for the press exemption and consequentially do not have to reveal their donors behind their political documentaries. Please click here for more from CQPolitics.

Citizens United President David Bossie issued the following statement in response to the opinion:

I am very pleased that a bipartisan majority of the Federal Election Commission saw fit to grant Citizens United the media exemption. As the producers of 14 feature-length and award-winning documentaries, Citizens United is an important voice that should not be subjected to extremely burdensome campaign finance regulations simply because we are not a multi-billion dollar media corporation. Since we produced our first film in 2004, all we have ever sought is to be treated by the government in the same manner as corporate film studios and other members of the establishment media, and I thank the Commission for leveling the playing field today.

We will update you with analysis as it becomes available.

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Some ACORN Nuggets
Thu, Jun 10 2010 11:31 AM

Today, Politico's Ben Smith reports on "Seeds of Change," a new book by John Atlas that takes an endearing and sympathetic look into ACORN's history and downfall. (Click here for Amazon's listing of the book.) A few notable pieces of information from Smith's review:

  • The group "aims to reconstitute itself under a new name after the midterm elections."
  • The book blames James O'Keefe and Hannah Giles undercover videos for bringing the organization down.
  • The book discusses how state and local organizations worked quickly to rebrand themselves following ACORN-national's demise.
  • "ACORN'S current president, Bertha Lewis, said the group will officially go out of business soon — she describes herself as 'its last employee' — but confirmed in an interview the possibility of creating a new national organization."
  • The book delves into the history of the organization, including the founding of the organization by Wade Rathke, who dropped out of Williams College in 1970 and soon after organized ACORN.

While Atlas gives lip service to some of ACORN's problems, including its admitted bad management and accounting standards, Smith writes that the book "is fundamentally a defense of the group's mission and its effectiveness from a committed ally."

A note on the author Atlas: A simple Google search on him allows you to find that he writes for the not-so-objective Huffington Post and is allied with other left-leaning organizations and progressive causes. So, while the book may contain lots of interesting information on ACORN, don't expect it to be an evenhanded and critical analysis of the organization.

In addition, in today's Daily Caller, Matthew Vadum writes on how former ACORN employees in Missouri testified to ACORN's deliberate attempts at election and election registration fraud. Vadum's piece is a result of documents obtained by Judicial Watch that chronicles the FBI's investigation into the group in Missouri. In March, Judicial Watch obtained documents chronicling the FBI's investigation into ACORN for their activities in Connecticut during the 2008 election cycle.

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