United States Constitution, law and history discussion

During the next few weeks and through the muggy, hot summer in Washington, DC, the United States Senate will consider President Obama's nominee to replace retiring Justice John Paul Stevens. Presently, the president is considering several candidates for the position. Vice President Biden (who is a former chair of the Senate Judiciary Committee) and he have been interviewing the potential nominees as the President considers this nomination. Thus far, the following candidates have been interviewed: Solicitor General Elena Kagan, Ninth Circuit Court of Appeals Judge Sidney Thomas from Montana, DC Circuit Appellate Judge Merrick Garland, and Seventh Circuit court Appeals Judge Dianne Wood. Despite speculation in the media and among Court watchers and commentators, no sitting politicians have been interviewed. Many had speculated that President Obama would nominate Gov. Jennifer M. Granholm of Michigan. We'll simply have to stay tuned. For many constitutional scholars, lawyers, and those interested in American law, there is no more entertaining drama than a Supreme Court nomination.

The assessment of Justice John Paul Stevens, and tributes to this long-serving jurist appointed by President Gerald Ford, are popping up around the country. The American Bar Association has several articles available at the ABA's website which many of you will find informative. Here are the web links for those articles. "Man of Moderation: Last Justice of ‘Greatest Generation,’ Says Farewell" - http://www.abajournal.com/news/articl.... "Practical Meaning: As the Court Shifted Right, Stevens Kept His Place" - http://www.abajournal.com/news/articl.... "Stevens' Top Cases" - http://www.abajournal.com/gallery/ste....

Like many other legal prognosticators, the American Bar Association is speculating on whom President Obama will nominate to replace Justice John Paul Stevens. Here are the article and web link: "Who Will Replace Stevens? Three Likely Picks Emerge, as Others Engage in ‘Bizarro’ Speculation" - http://www.abajournal.com/news/articl....

Back in February, before Justice Stevens announced his retirement, SCOTUSblog went out on a limb, predicting that President Obama will nominate Solicitor General Elena Kagan. Check out this story at the blog: http://www.scotusblog.com/2010/02/on-...

Some Court watchers and commentators have been concerned that there is only one Protestant on the Supreme Court. Now he is retiring - Justice John Paul Stevens. Whether religious affiliation will be a factor in President Obama's decision remains to be seen. Of course, many would advocate that religious affiliation should be of no consequence for service on the bench within our secular legal system. Dan Giloff wrote an interesting piece on this subject which has been posted on the CNN web site. Here it is: "A Supreme Court without Protestants?" - http://www.cnn.com/2010/POLITICS/05/0...

Assessment of Justice Stevens's legacy, which will be conducted by scholars for years to come, is just now beginning. Surely among his shining moments will be his dissent in Bush v. Gore, 531 U.S. 98 (2000), when the Supreme Court majority ordered the Florida election authorities to halt recounting ballots, thereby rendering George W. Bush the forty-third President of the United States. Justice Stevens, the only Republican appointee to the high court who dissented, wrote simply yet eloquently in his dissenting opinion. (An often-quoted excerpt from that dissent follows in my next post here.) An inside account of the Supreme Court's decision in Bush v. Gore can be found in Part Two of Jeff Toobin's book, The Nine, on pages 141 through 177. The Nine is included on our group's bookshelf.

"What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law." Bush v. Gore, 531 U.S. 98, 128-29 (2000)(Stevens, J., dissenting).

As all observers know by now, President Obama has nominated the present Solicitor General of the United States, Elena Kagan, to replace retiring Justice John Paul Stevens. Both before and after her nomination, some commentators decried the lack of religious diversity on the Supreme Court. Should Ms. Kagan be confirmed by the Senate, she would be the third Jew (with Justices Breyer and Ginsburg) and would join six Roman Catholics (Chief Justice Roberts and Justices Kennedy, Scalia, Thomas, Alito, and Sotomayor.) Justice Stevens is currently the lone Protestant. The question for our Goodreads group membership: Does the United States Supreme Court need more religious diversity? (My views follow on the next post here.)

In my opinion, religious affiliation of a judge, including members of the United States Supreme Court, should make no difference in determining qualifications to serve on the bench. In our deliberately secular justice system, one's religion should not matter, whether we are considering a litigant and a criminal defendant, or the attorney and the judge. I am a practicing attorney. Like nearly every attorney in the United States, I did not attend Harvard or Yale law school. For nearly thirty years I have represented hundreds of normal, regular people of nearly every socio-economic status and guided them through scores of legal problems and disputes. By no means am I special or unique; the vast majority of lawyers in this country can make the same claims of service at the Bar. Yet no one on the Supreme Court --- not a single Justice --- has my professional experience.

Most Justices follow a certain track: They graduate from among a handful of "elite" law schools; after a few years of practicing law (if any), or working as a law professor, they are elected to the federal bench and eventually the Supreme Court. Merely attending Harvard or Yale does not make a better attorney, and is not indicative of superior legal knowledge or insight. Practicing corporate law or briefly working as a prosecutor or lecturing law classes for a few years is not necessarily the best preparation for the bench.

The diversity we need on the Supreme Court is not religious. Instead, the diversity that would give us a better Supreme Court is professional legal experience. Moreover, when all justices are graduates of only two or three law schools, the specter of elitism taints the Court's work and creates at least the appearance that the Court is an elitist cabal, and out of touch with the average American and his or her legal problems.

The goal should be to expand the diversity of the Justices' legal education outside of Harvard and Yale, and of the Justices' prior work experience. The cause of justice and the rule of law would be enhanced accordingly, in the opinion of this simple lawyer from South Carolina.

I would cetainly agree that religious diversity is not high on my list of qualifications when choosing a potential Supreme Court justice. I do agree with Douglas that differing types of legal experience should be considered.
I think it is interesting that some of the justice who left a mark on the court historically had work experience quite different from that of most of the current justices. William O. Douglas was what, chairman of the Securities and Exchange Commission? Hugo Black was a Senator, but had also served as lawyer for everyday people in the manner that Douglas describes. There's a good book on Black's early life and the experiences that shaped his legal and personal philosophies - Hugo Black of Alabama: How His Roots and Early Career Shaped the Great Champion of the Constitution which I read a few years ago and found very interesting.
Having said all that, I think Kagan will make a good Justice. Her experience is a least different enough from that of the other 8 Justices that I believe she'll be able to possibly evoke some changes in outlook. I thought it was interesting that she's open to televising some of the court's proceedings.

Earl Warren, nominated by President Eisenhower, had been attorney general and governor of California. President Kennedy's nominee Byron White had served as deputy attorney general before his service on the Supreme Court. Prior to his appointment to the high court, Louis Brandeis had been a highly successful trial and appellate attorney. I could list others, but the point is that some of the best Justices were not law professors or lower court judges prior to their tenure on the Supreme Court.

After Chief Justice Rehnquist died, and President George W. Bush altered the nomination of John Roberts to fill the chief justiceship, many Court watchers urged him to nominate someone to fill Sandra Day O'Connor's seat who had some political or administrative experience. Apparently, among those considered were a couple of governors and my law school classmate, Senator Lindsey Graham of South Carolina. President Bush ultimately nominated Samuel Alito, who had served for sixteen years on the Third Circuit Court of Appeals.

While reading Justice for All: Earl Warren and the Nation He Made the book mentions that Warren accepted the nomination for Chief Justice on a Friday in a press conference in California and then took the oath of office as Chief Justice on the next Monday. I was surprised by this, at first thinking that the hearings had been held over the weekend. Then as I read more it became clear that Warren took the oath and the job and that the hearings were THEN held, which, had EW not been confirmed, would have then meant that he was not on the court. Does anyone know, was this a kind of recess appointment due to the previous Chief Justice Robert Jackson dieing while the court was in session?

Also, I've been reading The Nine: Inside the Secret World of the Supreme Court by Jeffrey Toobin who was a friend of current nominee Elena Kagan at Harvard. I'm finding Toobin's book pretty interesting in that light, since the two might (or might not - friends can be opposites in this world - see Mary Matalin and James Carville :) share some similar attitudes towards how the court should operate. Anyway, Toobin seems to be a big fan of former Justice Sandra Day O'Connor and her centrist pragmatic approach to the law, for whatever that's worth...

Steven wrote: "While reading Justice for All: Earl Warren and the Nation He Made the book mentions that Warren accepted the nomination for Chief Justice on a Friday in a press conference in Californ..."

Yes. Until the last twenty-five years or so, notably beginning with the notorious Robert Borke and Clarence Thomas confirmation hearings, nearly every Justice's confirmation was far less sensationalized or controversial. The nomination process in our time often descends into a media circus where some Senators, well aware that they are on national television, tend to bloviate and engage in ideological debates during the confirmation hearings. Meanwhile, special interest groups, often driven by or representing ideological or corporate concerns, engage in extensive, exhaustive "background checks" of the nominee. Consequently, the confirmation hearings are usually protracted beyond what is necessary. No doubt we will witness this same process play out this summer for Elena Kagan.

Steven wrote: "Also, I've been reading The Nine: Inside the Secret World of the Supreme Court by Jeffrey Toobin who was a friend of current nominee Elena Kagan at Harvard. I'm findi..."

Steven,

I believe that Elena Kagan is more centrist in her views than right-wing opponents of her nomination may admit. Most Republicans in the Senate will oppose everyone President Obama nominates, as many of them voted against Justice Sotomayor's confirmation. Yet Sotomayor has not proven to be a commited leftist in her Court voting record. Going out on a limb, I suspect that we will see Ms. Kagan generally engage in the same measured, centrist approach to deciding cases that come before the Supreme Court should she be confirmed.

Steven,

By the way, then future Chief Justice Rehnquist served as law clerk to Robert Jackson. A memorandum that Rehnquist as a law clerk wrote in opposition to school desegregation came back to haunt him during his Senate confirmation hearings more than thirty years later.

With her swearing ceremony coming this weekend, Elena Kagan will become the 112th justice of the United States Supreme Court, replacing the recently retired John Paul Stevens. She underwent three months of interviews with eighty-six Senators, background checks, and vetting, and seventeen hours of testimony before the Senate Judiciary Committee. Senators sparred over her legal experience and her “location” on the ideological spectrum.

On August 5, 2010, the Senate voted, 63-37, to confirm Ms. Kagan. All Democrats but one voted for her; all Republicans but five opposed her. Chief Justice Roberts will render the oath to Ms. Kagan tomorrow, August 7, reflecting last year's Saturday oath-taking for Justice Sonia Sotomayor. A formal investiture ceremony will take place on Oct. 1, at a special sitting of the Court.
Ms. Kagan’s ascension will raise the total to three members of the United States Supreme Court for the first time in its history. She is also the first Justice since William Rehnquist was confirmed in 1971 to join the Court without prior judicial experience.

Kagan, 50, rose rapidly through clerkships, private practice, academia and the Clinton White House to become dean of Harvard Law School in 2003. Since March 2009, she has represented the federal government before the Supreme Court as Solicitor General. Her nomination to the Court on May 10 was initially greeted with skepticism by some liberals, who said they had no indication of what her views were despite her work in Democratic legal circles. Yet after two days of testimony before the Senate Judiciary Committee in June, Kagan won over liberals by endorsing the view that the Constitution must be interpreted in light of new circumstances.

Predictably, given the contentious political climate this election year, Ms. Kagan did not win over many Republicans. The five who voted for her are generally moderates: Sens. Susan Collins and Olympia Snowe of Maine, Lindsey Graham from South Carolina, Judd Gregg of New Hampshire, and Richard Lugar from Indiana. Justice Sonia Sotomayor received more Republican votes a year ago, with nine. Sen. Ben Nelson, a conservative from Nebraska, was the only Democrat to oppose her.

Republicans attacked Kagan on a variety of issues, including late-term abortions, same-sex marriage and gun rights. They also criticized her decision while dean of Harvard Law School to restrict military recruiters' access to the school's career office.

Facing a 59-member Democratic caucus for the vote on Thursday, Republicans opted against their oft-used filibuster. The Senate expended some three months to consider Kagan's nomination, and the debate in the full chamber lasted most of three days.

Upon her swearing in, Kagan will hire clerks and begin setting up her chambers. While the Court's new term begins on October 4, Kagan will participate in petition conferences and other emergency and routine matters before then.

Kagan will be the youngest member of the Court, so her influence may be felt for decades. She joins relatively the relatively young Chief Justice and Justices Alito and Sotomayor, all in their mid-fifties. But Justice Kagan is not expected to have an immediate impact on most issues because she replaces Justice John Paul Stevens, considered the leader of the Court's “liberal” wing. Obviously, Justice Kagan will most likely recuse herself from cases in which she participated while serving as Solicitor General; there are at least eleven such cases in the upcoming Supreme Court term.

Now that the dust is settling from her confirmation hearings, and with the 2010-11 term of the Supreme Court commencing next month, you may want to study the information compiled about Justice Kagan.

Following are websites that offer predictions about Justice Kagan's "judicial philosophy."

http://www.cato.org/testimony/ct-dk-0...

http://www.cato-at-liberty.org/kagan-...

http://www.acslaw.org/node/6717

http://www.acslaw.org/node/5196

http://www.acslaw.org/node/449

http://www.acslaw.org/node/16061

http://www.cato.org/pub_display.php?p...

http://www.cato-at-liberty.org/democr...

From The Federalist Society: http://www.fed-soc.org/search/default....

A formal investiture ceremony was held for Associate Justice Elena Kagan on Friday, October 1, 2010. Before the ceremony, the Justices along with President Obama gathered in the Justices' Conference Room. Following the Courtroom ceremony, Chief Justice Roberts escorted Justice Kagan down the front steps of the building for a brief photo opportunity with the press.

October 1 marked the second time that Justice Kagan took the oath of office. On August 7, 2010, Elena Kagan was sworn in as the 100th Associate Justice in a private ceremony at the Supreme Court so she could begin to participate in the work of the Court in preparation for the Court's new term which began the first Monday in October.