Kagan gets the nod

In more Kagan news, it seems that someone unearthed a legal memo Kagan wrote for a Second Amendment challenge while Justice Thurgood Marshall was on the bench. Oddly enough, it was a D.C. resident challenging his conviction for unlicensed possession of a handgun on Second Amendment grounds.

Kagan's memo to Justice Marshall regarding cert recommended that he deny cert and noted that the challenge was solely on Second Amendment grounds and stated "I am not sympathetic." Of course this would have been fairly early in her legal career, around 1988, IIRC. It would have also predated a lot of the more recent scholarship on the Second Amendment.

Not too sure what it says about Kagan's feelings on the Second Amendment; since in all probability, having cert granted on that case would have been very bad for us. My guess is pretty much the same as it was before I knew this - she isn't going to be much help for Second Amendment votes; but she won't be any worse than Justice Stevens at least.
 
Not too sure what it says about Kagan's feelings on the Second Amendment; since in all probability, having cert granted on that case would have been very bad for us.
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I'm still unclear as to the context. Was she "not sympathetic" to the cause, the case at hand, or just to Sandidge as a plaintiff? IIRC, Sandidge was already a felon when he was busted for illegally carrying a concealed weapon.

That was exactly the sort of plaintiff we've been trying to avoid these last few years.

You would have to work pretty hard to find one worse than Stevens.
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I dunno, how about Breyer? "Ordered liberty," indeed.
 
I dunno, how about Breyer? "Ordered liberty," indeed.
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Well Breyer is bad; but his legal reasoning is also pretty bad. He is starting to hit that "crazy uncle" stage I think. Even the rest of the Justices seemed a bit confused by where he was trying to go in the McDonald oral arguments. Stevens disliked RKBA and was a better strategist, although he hasn't been at his sharpest for awhile either.
 
Perhaps its just me, but Kagan's nomination seems very political. I can't help but wonder if Obama didn't nominate someone farther left because he's worried that doing so might hurt his party in the midterm elections this November. I wonder if he fears that nominating a far-left person to the bench would paint him as the radical that the right has been trying to portray him as.

Also, I can't help but notice that the left doesn't seem particularly enthusiastic about Kagan. I almost wonder if Obama hopes that the Democrats won't put up too much of a fight if the Republicans try to block her appointment. Perhaps he hopes that blockage of her nomination could help him paint the Republicans as "obstructionist" and buy him some time to nominate who he really wants after November.
 
Well, Obama has a choice. He can spend whatever political capital he has left on a Supreme Court nomination process and get nothing done before the midterm elections; or he can nominate a reliably liberal Justice with no real record who isn't going to provoke opposition and then spend the time on legislation.
 
I don’t think he has to spend much political capital at all on the nomination. Some republicans are already falling over themselves to say good things about Kagan. Even Laura Bush came out of nowhere to say nice things about the prospect of another woman on the SC.
Get ready to put another one in the BOHICA file, guys … unless the public can get mobilized to put the fear of the ballot into a few politicians, and I doubt it’ll happen in time because everybody's using the "don't really know her stance" excuse.
The "no paper trail" bit is a flat-out lie unless you don’t count what she’s written from her thesis to the thousands of documents cranked out when she worked for the Clinton administration. She’s as "liberal" as they come. "Stealth" doesn’t equal "less radical"
 
We are tending too much towards straight politics. Let's turn back to things we can empirically demonstrate from her record as compared to inchoate fear and dread.
 
Sorry,
It’s hard to discuss a political creature without getting "political" and this one’s record is skimpy for a SCOTUS nominee except for her political associations. What record she has would normally be less important and not brought up … BUT in her case, she has had so little a judicial impact, that the small details must be examined (if you set aside her having had negligible judicial impact a disqualification for such an important position).

Anyway, the heck with dread and fear, or anger for that matter ... unless it motivates people to do something. IMO people need to get motivated, and apply pressure to their congressman, the press, etc. … to force release of obscure documents so there’ll be something to argue about besides politics. Right now, the main thing we know of her is her political associations.

We know she worked for the Clinton Administration Domestic Policy Council as a deputy domestic policy adviser under Bruce Reed. As any bureaucrat does, she produced volumes of paperwork during her time there.
The Clinton Presidential Library has begun to dribble out some documents, but not much.
IMO, they need to be pressured to release much more.

She was also on the board of governors of the Chicago Council of Lawyers from 1993 to 1995. Where is the paper trail on her time there?

Right now, she is little more than a political creature because that’s mainly what know about her.
If her associations and contributions are considered as part of her record…

((((self-edited to avoid listing a bunch of anti-gun politicians))))

I send money to groups and politicians that represent my views, including on 2A Rights, and suspect she does the same.
 
“continue to defend” against constitutional challenges on various federal regulations concerning firearms.

Not sure what that even means.
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Could mean defense against laws which would restrict RKBA. Or it could mean defense against groups which would challenge various restrictions on RKBA as being unconstitutional.

Kagan has made a career out of not taking a controversial position. She has no track record in arguing any issues before the courts. These days that's just precisely what sort of candidate the Executive is looking for.
 
I think a Senator faced with a Supreme Court nominee should presume that the President has made an appropriate choice, and should be open to hearing reasons why that may not be the case.

While I don't like everything I have heard about her, I have yet to hear anything that should be disqualifying for a Supreme Court nominee. Does anyone know of a reason she should not be confirmed? If not, she should be confirmed and this discussion should be over, IMO, since all that is left is speculation about what she might decide in a gun case some day.
 
Sandidge v. United States -1987 - As a law clerk under Marshall in the Supreme Court, she argued against hearing the appeal of a man convicted of possession of a firearm and ammunition. Because his defense was based on the 2A being an individual right, Kagen wrote that she was not sympathetic to him being granted an appeal.

The quote "There is no question, after Heller, that the Second Amendment guarantees individuals the right to keep and bear arms and that this right, like others in the Constitution, provides strong although not unlimited protection against governmental regulation" was made as a nominee to the solicitor general position.
Notice that she qualifies the statement with "after Heller". This turns the rest of the statement into a recognition of "current reality" rather than her opinion of the RKBA or other rights. She further weakens the concept of RKBA as an individual right by adding "not unlimited protection against governmental regulation".
Notice that she did NOT say "as Heller showed" or anything of the kind. This type of wording is the mark of a living document theorist, where the Constitution is defined and redefined by the Supreme Court, rather than merely interpreting it’s meaning.
 
wingman said:
She was picked by Obama enough said.
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Well, let's see, we could very well be talking about Judge Merrick Garland, D.C. Circuit Court, or Judge Diane Wood, 7th Circuit.

You honestly think that those two are better picks than Kagen?
 
This pick is relatively young and in good health. The best possible nominee from the current administration might simply be the one that is oldest and/or in the worst health.
Yeah, kinda mean thing to say, but …

I doubt there’d be a nickel’s worth of difference ideologically or philosophically speaking, between anyone nominated for the position. This one is simply less exposed than most.

I’d also be willing to bet she’ll get confirmed whether her paper trail comes to light or not. BTW, If I remember correctly, there is precedence for the Senate getting and considering a nominee’s paperwork done for a previous presidential administration … Roberts, I think.
All I’m screaming about for now can be boiled down to two points. First, make public all information available, and second, don’t immediately roll over and accept this pig in a poke … until she’s out of the poke where we can see her.

Disclaimer: The above colloquialism was not necessarily meant to be taken as a derogatory term for this particular Supreme Court nominee. Any similarities between animals mentioned in the phrase and Supreme Court nominees, are purely coincidental. :)
 
All I’m screaming about for now can be boiled down to two points. First, make public all information available, and second, don’t immediately roll over and accept this pig in a poke … until she’s out of the poke where we can see her.
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The President has 59 votes in the Senate and his party controls the Judiciary Committee and Senate Majority Leader. Short of nominating someone grossly unqualified, he is going to get his nomination approved by the Senate. Kagan is qualified. Now we can fight her nomination because Kagan isn't pro-Second enough for our liking; but the fact is, this Administration is not going to nominate anyone who is pro-Second. The problem with stalling Kagan's nomination is that ALL of the other people on the short list were worse than Kagan on the Second Amendment.

Sadly, you just don't get much concilliation from the other side when you only have 41 votes in the Senate.
 
… and not even a "solid" 41 votes at that.
Agreed that she’s qualified (unless she was a party to that leak to the eco-terrorists, and I doubt that would stick even if she were).

I don’t get it when people say she is better than the rest of the short list when she is an unknown quantity. Granted the rest of the short list are horrible on 2A and several other issues; but why expect Kagen to be any different from the rest of the pack simply because of the lack of negative information, when there’s no positive information either?

I don’t see a down side to calling for a release of the Clinton Admin. Files, especially given her lack of track record and the Roberts precedent. If the administration scrambles to keep the files hidden or the prospect of releasing them causes a withdrawal of Kagan, you can bet that she is worse than the rest of the pack in ways that they don’t want us to see.

I also don’t see a down side to drawing out the process because the more time the Senate spends on this stuff, the less time they have to deal with other things… like passing bad legislation.
 
Let's put to rest some of the derogatory things that are being said.

The Thurgood Marshall memo: Sandidge v. United States.

The lower court ruling in the 1987 case, issued by the District of Columbia’s highest court, said the Second Amendment protects only the rights of states to raise militias, and not individual gun rights. The ruling upheld Lee Sandidge’s conviction for carrying a pistol without a license, possession of an unregistered firearm and unlawful possession of ammunition. The SCOTUS, at that time, would most likely have agreed with the D.C. Circuit and Heller would have been a non-starter.

Whatever she really meant with that memo, turned out to be good for us.

I would sincerely hope that Kagan took from Marshall, his dedication to civil rights and his ferver in limiting the scope of the governments police power as regards 4A rights.

The Clinton Papers: Just what do you expect to see, assuming arguendo that the Clinton files are released, other than a person who did the job they were hired to do?

Would you actually find fault in a person who did what the boss told them to do, when what they were doing was not unethical or unlawful?

Give me an argument from her work, that is, this was how she privately thought, as opposed to she did the job that she was hired to do.

The other possible nominees.

We can look at the type of decisions handed down by Garland and Wood. I could be wrong, but I doubt their judicial reasonings would change much. Given that reasoning, they would be horrible for future 2A cases, even if still on the minority side.

The other thing about these two jurists; Because of their judicial experience, they may find an easier time of persuading Justice Kennedy to their side. That would be disastrous.

Then there is Janet Napolitano. She is a died in the wool progressive. Her views on certain issues are an open book to anyone who has followed her career in Arizona.

Of all the names on the "short list," Elena Kagan is the best we could hope for.

Do not take the above as an endorsement of Kagan. It isn't. It is a rational look at the possibilities.
 
Of all the names on the "short list," Elena Kagan is the best we could hope for.
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Exactly, and whomever would be behind 'door number two' would be much worse, rest assured. And as far as i know, no second attempt at confirming a SCJ has ever failed. :eek:

I hope the Republicans do this quickly and with as much grace as possible. Opposing this nominee is the last place to spend their political capitol at this time.

Ask the tough questions, do the diligence, and barring any insurmountable surprises, thank and officially congratulate the President for a wise nomination, and move on. You can't ALWAYS be seen as the party of no without losing credibility.
 
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