Elena Kagan?

[Big RR]

Guin--the only problem with that analysis is that, even if she is a great consensus builder, we still have to consider what sort of positions she will be trying to build consensus around. We are in a time where, IMHO, it is important for the USSC to uphold civil liberties in the face of "safety mongers", which appear to include some in this administration, who would work to curtail them for good (llok at how our "esteemed"attorney general is so quick now to jettison Miranda protections and the right to a speedy arraingment and trial. I would hope she is a strong voice for civil liberties, but I am very concerned she will, like Obama, be pragmatic and more concerned with the process than the final opinion. IMHO, I'd much rather have a justice who writes spiritied dissents (which can then be used by future generations as the basis for future change, than to forge alliances by horse trading.

[Sue U]

Guin, I understand what the writer is trying to say, but that's simply not the way the Court works; it's not about coalition-building or log-rolling (as in Congress) to pass or sink this or that piece of legislation in toto with the requisite number of votes. If you think about it, on the most contentious issues the Court's final ruling often comes with numerous concurrences-in-part and dissents-in-part, so the "fifth vote" thing is not as significant an issue. On the questions that split along a traditional left-right division, there's never going to be a ruling that gets Kennedy on board with only the four so-called "liberals" in a strong and unified majority opinion. Look, Ruth Ginsburg's best friend is Antonin Scalia, and I have no doubt they spend a lot of their time together discussing their respective points of view, but they are never going to persuade each other on fundamental differences in philosophy of government. (I understand Kagan is an opera buff too, so maybe they will invite her along on their outings?)

I don't think Kagan is a "Bush-Cheney monster" nor do I think she is unqualified for the position. I just think there are better candidates with more-developed consideration and more fully explored judicial approaches on many more issues. Wood, for example, has spent the last 15 years sparring with Posner and Easterbrook, and I can think of no more challenging warm-up for the Supremes.

[Big RR]

Sue--you're right, but I do think the consensus building/horse trading can take place on decisions as to whether or not to grant cert. Granted only 4 votes are needed, but if the court wants to duck an issue, deals may well be forged.

As for decisions and concurrences/dissents/etc., I think you are right generally, but there have been some cases where the justices who signed onto a majority opinion (or a dissent for that matter0 surprised me. I do think there are many times when the justices will compromise in a ruling.

[Rick]

Has Andrew decided to stop posting?

Not that I am not interested in ya'lls comments...

[Guinevere]

I only spent a summer clerking for a state supreme court, but they did indeed horsetrade, compromise, and make deals to get the ability to write the majority opinion. It's just that they (and the clerks) don't like to talk about it much.

[Rick]

Don't doubt that.

It would sound more like politics than law...

[rubato]

Elena F***ing Kagan??!?!?!

Nigga pleeze!

Oh well, so much for restoring a liberal wing to the Court.

ETA:

GAH!

What specific decisions or guiding principles would you expect from your idea of a 'liberal' appointment vs Kagan? Or are you complaining just so the Right-Wing will take pleasure in your, supposed, liberal pain and confirm her?

The second idea is very clever. If organized liberals have realized how much conservatives are motivated by the desire to cause suffering in others and have learned how to 'reward' them for doing what the liberals want, then I have to say I am very impressed.

Imaginary suffering is just as good as real suffering if they believe it is true.


yrs,
rubato

[Gob]

But it is fair to say that nobody has been as blank a slate as Elena Kagan. Although she has been solicitor-general for more than a year, she has never been a judge, so it is impossible to examine her rulings and her reasoning. She has barely written a thing, despite being an obviously brilliant and accomplished legal mind. Liberals worry that she is another wimpy, namby-pamby Democratic nominee and no match for the firebrands of the right that the second Bush appointed. Conservatives worry that she is a stealth leftist, an almost textbook case of a left-liberal marching silently and stealthily through the institutions of American power. But the truth is: none of us outside her circles has a clue.

There was one other strange thing about 4,500 words of profile — no mention of any private life. She is unmarried, and apparently has no anecdotes of dates, no ex-boyfriends or girlfriends, no romantic interludes ... nothing. In 4,500 words, we do not find out even where she lives or has lived or if she lives alone. (But we do know what her brothers do for a living — teaching). The far right has already identified her as a “lesbian homosexual”; and the gay blogosphere openly discussed her alleged lesbianism weeks ago.

But there is no confirmation of that anywhere and the White House reiterated last week that questions about sexual orientation “have no place” in judging a nominee (but her gender most certainly does). Quite how you defend this argument — from a president whose own criterion for nominees is a real experience of how law can affect ordinary people — is beyond me. It is also beyond most ordinary people out there.

http://www.timesonline.co.uk/tol/commen ... 127574.ece

[Andrew D]

Has Andrew decided to stop posting?

Nope. A catastrophic computer failure has kept me away until just recently.

I know very little about Kagan. Therefore, I largely reserve judgment on the merits of her nomination.

It does occur to me, though, that she would replace Stevens. And Stevens was never a liberal -- a maverick dissenter from both right- and left-wing opinions, but never a true (as in Brennan, Douglas, and (Thurgood) Marshall) liberal.

So this may be a tempest in a teapot. The chance to change the Supreme Court from a right-wing Court into a better-than-right-wing Court has not yet arisen.

Will it? Only given a confluence of a non-right-wing President, a non-right-wing Senate (enough so to neutralize the right wing's "filibuster everything" approach), and a polity not infected with the plague that is right-wingism.

(Please let me note once (yet) again that the problem is not that there are right-wingers. The problem is that the deranged fraction of the right-wing bus has seized control of the steering wheel. There are right-wingers all over the place whose opinions merit respect, because they are the products of thinking. Unfortunately for everyone, they are not the right-wingers in control of right-wing politics. The right-wingers in control of right-wing politics are the loony-fringers.)

Of course, if we were willing to gird up our loins and do the right thing, we would (a) throw Scalia and Thomas and Kennedy off the bench for their role in the exercise in pure anti-constitutionalism that is Bush v. Gore and (b) throw Roberts and Alito off the bench for never having been nominated by an actual President. But that would require intestinal fortitude, and I see very little of that in politically important circles.

[Gob]

Yeah, that's all very well and good Andrew, but what everyone wants to know is; is she a lezza?

[Sue U]

But that would require intestinal fortitude, and I see very little of that in politically important circles.

Have you ever?

The last I can think of was the Civil Rights Act of 1964.

[Big RR]

In addition to the civil rights act, i'd throw in th enactment of medicare. Or was that prior to 1964?

[Guinevere]

Funny, the first thing that popped int my head after the Civil Rights Act was the Clean Air Act Amendments of 1990, passed in the Bush I era, and probably the single most effective environmental law on our books --- but then I looked at the legislative history and while I remembered it as controversial, and atough fight, the final votes were overwhelmingly in favor -- so I'm probably just getting old and forgetful.