NY Times - "Verdict on Kagan’s first year on Supreme Court" - Great Read On A Liberal Justice

[TomCADem]

A nice read underscoring how President Obama made a great call in nominating Elena Kagan to the Supreme Court.

http://www.washingtonpost.com/politics/verdict-on-kagans-first-year-on-supreme-court/2011/09/21/gIQAnJ14wK_story.html

The first justice in more than 40 years who had never been a judge, Kagan established herself quickly as a forceful and insightful questioner on a court filled with strong personalities.

While Kagan’s writings as an academic did not suggest a strong legal philosophy, her opinions and dissents from the bench have shown a conversational, confident writer, at times as sarcastic and cutting as a veteran.

And liberals who worried that she would not shore up the court’s left flank have so far found their concerns unfounded. The man she replaced, Justice John Paul Stevens, said he can think of only a couple of cases where she voted differently than he would have. And the senior liberal justice, Ruth Bader Ginsburg, seems especially taken with her. “She has already shown her talent as an incisive questioner at oral argument and a writer of eminently readable opinions,” Ginsburg said in a speech this summer.

Richard Lazarus, a Harvard law professor who closely follows the court, said the “most striking thing about the term, especially since she had never been a judge, was that she hit the ground running and seemed to fit right in at the court.”

[Auntie Bush]

1. Great! I often wondered how she was doing.

[Renew Deal]

22. A while ago someone here was going off on how terrible Kagan is.

So I asked for a decision the person disagreed with and all I got back was insults. :D

[Auntie Bush]

26. Thanks for the warning! Sounds so typical of a few members here at DU.

Or maybe they were trolls.

[Pab Sungenis]

2. We'll see how she votes

when DOMA comes around. She's said that there is no right to marriage.

[SidDithers]

3. No, she didn't...

she replied to a question as a Solicitor General is supposed to, by citing current law.

Sid

[jberryhill]

4. Don't worry..

I'm sure this thread will soon be festooned with oversimplifications of the legal issue on appeal in any number of recent cases.

[SidDithers]

5. Hopefully, you and the other leagle beagles here can correct...

if our lay-interpretations go horribly awry :)

Sid

[Pab Sungenis]

8. Pretty hard to misinterpret.

Senator Cornyn: "Do you believe that there is a federal constitutional right to same-sex marriage?"

Elena Kagan: "There is no federal constitutional right to same-sex marriage."

What word am I misinterpreting?

[jberryhill]

10. You are misinterpreting an entire sentence

Such as:

"I'm sure this thread will soon be festooned with oversimplifications of the legal issue on appeal in any number of recent cases."

Perhaps you would like to identify to which "recent case" you are referring?

[Pab Sungenis]

14. None. I'm not discussing the legal issue, I'm discussing what Elena Kagan has said about it.

Elena Kagan: "There is no federal constitutional right to same-sex marriage."

So now let's see how she votes.

[Pab Sungenis]

7. Oversimplification?

Senator Cornyn: "Do you believe that there is a federal constitutional right to same-sex marriage?"

Elena Kagan: "There is no federal constitutional right to same-sex marriage."

[jberryhill]

9. Cite the Supreme Court case stating otherwise

Aside from the fact that your comment is not responsive to mine, that remains the correct summary of controlling precedent in response to that question.

Anyone being nominated to a position in which they can change the law should be able to demonstrate a comprehensive understanding of what the law is.

My comment was directed to things like "OMG the Supreme Court says Wal-Mart can't be sued for discrimination," which thoroughly missed what was the actual issue in that appeal.

[Pab Sungenis]

13. Richard Perry Loving, Mildred Jeter Loving v. Virginia

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis.... is surely to deprive all the State's citizens of liberty without due process of law.

Perry v. Schwarzenegger's decision was founded upon the Loving case. Elena Kagan told John Cornyn that, at least as far as LGBT*.* are concerned, Loving was wrong.

Mildred Loving sees it differently however.

I am still not a political person, but I am proud that Richard's and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That's what Loving, and loving, are all about.

[Pab Sungenis]

6. "There is no federal constitutional right to same-sex marriage."

Senator Cornyn: "Do you believe that there is a federal constitutional right to same-sex marriage?"

Elena Kagan: "There is no federal constitutional right to same-sex marriage."

You don't get more blatant than that.

[jberryhill]

11. There isn't.

There may well be in the future, but that's not what is asked nor answered in nomination hearings.

[Pab Sungenis]

15. Either the 14th Amendment protects us all

or it protects no one.

Loving v. Virginia declared that marriage is a fundamental right, and is protected under the 14th.

There is no compelling reason to prevent same-sex marriage other than the fact that it makes some people go "ick" the same way mixed-race marriages did before.

To say that

Elena Kagan: "There is no federal constitutional right to same-sex marriage."

is to either say that Loving was wrong, or there is no federal constitutional protection at all for LGBT*.*. Either interpretation is dangerous and about as anti-gay as anything out of Scalia's mouth.

So as I said, let's see how she votes.

[jberryhill]

18. I agree that is what the law should be

However if grading a paper in a Con Law class where the question is what the law IS, that answer is a fail.

The way that nomination hearings work, the nominee is asked questions about the current state of the law, and the nominee will specifically refuse to answer questions predicated on a future hypothetical.

Can I ask you a question?

Do all 50 states have the same laws on the age of people who can marry or their degree of relationship (eg first cousins)?

Do you believe that situation violates the Constitution?

[Pab Sungenis]

19. There are compelling reasons for those restrictions.

There is no compelling reason for banning same-sex unions on a Federal level. That's where strict scrutiny comes in.

Like I said, let's see how she votes on Prop 8 and DOMA. Then we can see whether she was being evasive, disingenuous, or is anti-gay.

[jberryhill]

20. How can one state have a "compelling reason" for outlawing cousin marriage

...while other states don't?

You believe there is a "compelling reason" why first cousins can't get married in Tennessee, but this compelling reason doesn't exist in Kentucky?

Okay, what's the reason?

[Pab Sungenis]

21. The compelling reason is

the prevention of birth defects. One state may consider this reason compelling enough to restrict marriage while others will not.

There is no compelling reason other than bigotry to restrict same-sex marriage.

[jberryhill]

23. Again, I agree with your second point

But that was not the question asked or answered in the nomination hearing.

I get it - Elena Kagan is a RW stooge, and there's no difference between Obama and Rick Perry.

But can you save it for next year?

[Pab Sungenis]

24. I said no such thing.

I didn't say she's a right wing stooge. I said she sounds like she's anti gay marriage.

And I never said there is no difference between Obama and Rick Perry.

To say that I said either of those is a blatant falsification.

[Bake]

25. But it may very well be implied in the equal protection clause and right to privacy.

Kagan saying there is NO such right rules that out. And that's not exactly encouraging.

bake

[jberryhill]

27. Indeed it may be implied in a lot of things

The status of rights under the 14th Amendment is what the Court has thus far said they are.

That can change in all sorts of ways in the future.

If you are not a Supreme Court Justice, which she was not at the time, and you are asked that question during a proceeding to determine what you do or do not know about what the law is - i.e. what the Supreme Court has thus far said it is - then you give the current answer as established by that precedent.

If you are in a nomination hearing, and someone asks you how you would rule on a question of x, y, or z, then you decline to answer because asking how you would rule on an issue with a probability of coming before you is inappropriate.

Jesus, is that really all that hard to grasp?

[SidDithers]

16. HRC on Kagan...

http://www.hrc.org/press-releases/entry/human-rights-campaign-congratulates-elena-kagan-on-her-confirmation-as-asso

The Human Rights Campaign, the nation's largest lesbian, gay, bisexual and transgender (LGBT) civil rights organization, today applauded the United States Senate for confirming Solicitor General Elena Kagan as an Associate Justice of the United States Supreme Court. The Senate voted 63-37 with 5 Republicans voting in favor of her confirmation and 1 Democrats voting against it.

"We commend the Senate for confirming Solicitor General Elena Kagan to the Supreme Court," said HRC President Joe Solmonese. "She has demonstrated an understanding of the need for equality for all Americans and her record indicates she may be more familiar with how laws and policies affect the LGBT community than any previously confirmed Justice."

On July 1, after thoroughly reviewing her record and her responses to questions posed by the Senate Judiciary Committee, HRC formally announced its endorsement of Kagan. In her testimony before the Committee, she indicated an understanding of the important issues facing many Americans, including those who are LGBT. Her opening statement pointed out what she saw as the command to every justice - the pursuit of Equal Justice Under Law - and argued for a "fair shake for every American." She also took the opportunity to clarify a statement from her Solicitor General confirmation regarding the lack of a constitutional right to marry for same-sex couples as simply an assessment of where the law currently stands.

Kagan's record shows she has worked on LGBT issues during many phases of her career. While in the Clinton White House, she was involved in LGBT issues ranging from expanding hate crimes legislation to preventing employment discrimination to increasing funding for HIV and AIDS prevention and treatment. As Dean of Harvard Law School, Kagan supported the LGBT community and passionately defended the school's sexual orientation anti-discrimination policy when it conflicted with the discriminatory "Don't Ask, Don't Tell" law - a law she called "a profound wrong - a moral injustice of the first order."

HRC is particularly pleased to see the fourth woman to serve on our nation's highest court and the third woman sitting on the current Supreme Court, marking the highest representation of women on the Court in its history. In addition, she will be the only member of the current Court to have not previously served as a judge - which ends the recent historical anomaly of having a Court comprised entirely of justices that entered the Court from the bench. This increased diversity will help provide greater perspectives to the Court, particularly regarding how the law affects everyday people, including LGBT Americans.

Learn more about federal judicial nominations and follow our work on these crucial issues on HRC's Equality in the Courts by visiting: www.HRC.org/EqualityInTheCourts.

The Human Rights Campaign is America's largest civil rights organization working to achieve lesbian, gay, bisexual and transgender equality. By inspiring and engaging all Americans, HRC strives to end discrimination against LGBT citizens and realize a nation that achieves fundamental fairness and equality for all.

Sid

[Pab Sungenis]

17. The HRC also endorsed Al D'Amato.

They say she clarified her comments, but don't quote anything. I can't find any record of her disavowing her statement.

And she wasn't commenting on law, she was clearly referring to the Constitution. She said nothing about law, she said everything about Constitution.

[SidDithers]

12. Kick for Kagan...nt

Sid