New Nominee for Supreme Court Justice - Elena Kagan

[gbw]

New SCOTUS Nominee?

This is from SCOTUSBLOG, for what it's worth.............

The widely read Playbook from Politico leads with an item that readers should “look for” the President to nominate Elena Kagan on Monday, reporting that the sense of top White House aides about the pick is strong enough that they would “be shocked if it is otherwise.” The firewall between that being the sense of aides to being an actual decision by the President was jumped by an ensuing headline in a story reporting on the Playbook item at the top of Huffington Post that “Elena Kagan Said To Be Obama’s Supreme Court Pick.” (The title on the linked story says even more strongly “Will Be,” rather than “Said to Be.”)

I obviously share the view that General Kagan is the most likely nominee. But over the course of the day, this has taken on an unjustified level of confidence and certainty................

I don't know much about her, her background is mostly academic, not as a judge, so not a large volume of writings to go by.

 

[spur0701]

I just finished watching the Brit Bear (sp?) (Fox News at 1800) panel discussion on this topic a few minutes ago.....their consensus (especially Krauthammer (sp?)) is that she's the leading contender because she's a she....and she is seen as more center than some of the others and has the respect of some conservatives (she was confirmed pretty quickly as solictor general and has friends and respect on the right and doesn't have a lot of legal opinions that she can get ripped up on).....seems the best we can hope for....she also has a rep of respecting conservative opinions. The other leader is Woods, a female judge in the 7th Circuit that makes Joseph Stalin look like a neo-con teabagger.

 

[Bartholomew Roberts]

That probably sums it up. I'm not expecting any pro-Second Amendment opinions out of her; but she at least acknowledged the existence of an individual Second Amendment right during her Solicitor General confirmation hearings (though whether she actually believes that is another issue). Compared to the other nominees, that makes her about ten times more pro-Second Amendment than any of the other people on the list.

 

[StarDust1]

I simply don't trust anyone nominated by the current occupant of 1600 Pennsylvania ave to the SCOTUS, these are devious, committed anti 2nd individuals, here's to hoping for a successful filibuster.

 

[jmortimer]

One bad apple for another. Won't change anything except that we can expect 30 years or so of idiotic decisions from her.

 

[Starcheck55]

is this what it feels like to start a serious thread. wow, let me just soak this up for a minute.


Anyway, Obama has officially announced his pick for retiring Supreme Court Justice Stevens: Current Solicitor General for the US, Elena Kagan.

Of course this thread is going to go downhill will proclamations of ruin for the 2nd Amendment, and I actually look forward to it.

So I'm going to stay out of the fight, but i just want to leave you guys with this quote:

"The Supreme Court held in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), that the Second Amendment guarantees an individual right to keep and bear arms. The Court granted this right the same status as other individual rights guaranteed by the Constitution, such as those protected in the First Amendment . . . . I understand the Solicitor General’s obligations to include deep respect for Supreme Court precedents like Heller and for the principle of stare decisis generally. There is no question, after Heller, that the Second Amendment guarantees Americans “the individual right to possess and carry weapons in case of confrontation."

-Kagan's answer to Senator Chuck Grassley regarding her view of District of Columbia v. Heller, 128 S.Ct. 2783

 

[TexasRifleman]

Kagan's answer to Senator Chuck Grassley regarding her view of District of Columbia v. Heller, 128 S.Ct. 2783

Well, don't read too much into that.

Saying simply that one "agrees with Heller" also means that one agrees with reasonable restrictions.

"Reasonable" still being undefined.

 

[Starcheck55]

Texas-

Oh, I'm not jumping around happy by any stretch. I'm only willing to go so far as to say "at first glance, it could have been worse."

 

[Yo Mama]

I've been on a few sites, and she appears to be a bit pro-gun.

"The Supreme Court held in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), that the Second Amendment guarantees an individual right to keep and bear arms. The Court granted this right the same status as other individual rights guaranteed by the Constitution, such as those protected in the First Amendment . . . . I understand the Solicitor General’s obligations to include deep respect for Supreme Court precedents like Heller and for the principle of stare decisis generally. There is no question, after Heller, that the Second Amendment guarantees Americans “the individual right to possess and carry weapons in case of confrontation."

This quote makes me feel much better than what we could have had.

 

[TexasRifleman]

This quote makes me feel much better than what we could have had.

It shouldn't. Heller also recognizes "reasonable restrictions" with no definition of what those are. Those will be left for the Court to decide later.

Just acknowledging that Heller exists is not pro gun.

Hard to talk about this without straying into politics but there is likely a reason someone with no judicial background was chosen. It's harder to get a clear picture of her beliefs this way.

If you take a look at it from the more paranoid side that's how you would get an extremist on the Court, by nominating someone with no real background to give her views away.

Guess we will see, I suspect she will be a shoe in. There isn't anything really to complain about, since she hasn't done anything yet.

 

[Yo Mama]

It shouldn't. Heller also recognizes "reasonable restrictions" with no definition of what those are. Those will be left for the Court to decide later.

Just acknowledging that Heller exists is not pro gun.

The reasonable restrictions was not her fault, a bad ruling as we all discussed. By the time she sits on the bench McDonald is ruled on, and really no gun cases should come back for a while IMO.

 

[EHL]

I'm not trusting her either. What's really scary is that she's only 50 yrs old and could have alot of influence for the next 3 to 4 decades.

 

[AirForceShooter]

I'm getting a little ( OK a lot) tired of Harvard.

How about a nice nasty defense lawyer?

AFS

 

[LeonCarr]

Just make sure to vote in 2012, that is all I am saying concerning SCOTUS nominations.

Just my .02,
LeonCarr

 

[.378 Wby]

Kagan, SCOTUS, Heller, & Stare Decicis

http://judgepedia.org/index.php/Elena_Kagan

Kagan generally gave a variation of this answer when Specter requested her views on Supreme Court decisions:

"As noted earlier, the Solicitor General owes important responsibilities to the Court, one of which is respect for its precedents and for the general principle of stare decisis. I do not think it would comport with this responsibility to state my own views of whether particular Supreme Court decisions were rightly decided. All of these cases are now settled law, and as such, are entitled to my respect as the nominee for Solicitor General. In that position, I would not frequently or lightly ask the Court to reverse one of its precedents, and I certainly would not do so because I thought the case wrongly decided."

One reason SCOTUS has been historically reluctant to issue a decision on RKBA has been because it sets a precedent in stare decisis.

Once a decision has been rendered, it becomes the rule of law for the ratio decidendi -- the reason for the decision. Case law in Heller is historic. For the first time since the Bill of Rights, SCOTUS has declared that RKBA is an 'individual right" and not the collective right of the state.

Once that rule of law is decided, SCOTUS is bound to rule according to that stare decisis. The only way to overturn that ruling would be to bring a case before SCOTUS raising precisely the same legal question, and then ruling that the decision had been in error according to some different formulation of ratio decidendi.

That might be possible in a situation like Roe v. Wade -- where the rule is not stated in the Bill of Rights, but rather extrapolated on a principle of "implied privacy." -- The court might rule that the life of the fetus supersedes the privacy rights of the mother.

But Heller ruled that RKBA is an individual right, not a collective one. Once that becomes case law, it's going to be nearly impossible for SCOTUS to decide, "Ooooooops! We made a mistake!"

SCOTUS doesn't make "mistakes." SCOTUS makes case law. And once the decision becomes case law, subsequent rulings must take the previous rulings into consideration.

No way in Hades one Justice appointment, or several, will overturn Heller.

 

[Hunt480]

No way in Hades one Justice appointment, or several, will overturn Heller.

I sure hope you are right sir...

 

[Bartholomew Roberts]

No way in Hades one Justice appointment, or several, will overturn Heller.

Four Justices in Heller agreed that the Second Amendment protected an individual right; but still found that Washington D.C.'s total ban on handguns and ban on any assembled long gun was not a violation of that right.

As it stands now, Heller only says that you have an individual right to own a handgun for self-defense in your home; but this right is subject to "reasonable regulation."

Heller might never be officially overturned as a point of law; but it can sure be marginalized to the point it is meaningless if one of the five Justices in the majority is ever replaced by a Justice who shares the feelings of the dissent in Heller.

For example, here is just a short start of a long list of questions that have yet to make it to the Supreme Court:

1. Does the Second Amendment protect semi-automatic firearms?
2. Is there a right to carry a handgun for self-defense outside the home as part of the Second?
3. Currently, it costs something like $500 and 15 hours in classes, fees, registration and bureaucratic nonsense to purchase a firearm in D.C. - is that a "reasonable regulation?"
4. What types of firearms are "in common use"?

And to emphasize my point:

SCOTUS doesn't make "mistakes." SCOTUS makes case law.

How is that working out for Slaughterhouse? Was the 14th Amendment being applied to the States stopped cold by that decision - after all, Slaughterhouse is still good law.

 

[woerm]

slaugherhouse case(s)

http://www.pbs.org/wnet/supremecourt/antebellum/landmark_slaughterhouse.html

See also Cruikshanks

The Cruikshank case held that states could violate the 1st Amendment right to freedom of assembly, the 2nd Amendment right to arms and the 15th Amendment right to vote without the possibility of Federal oversight.[26] The Cruikshank case arose from events now known as the Colfax Massacre, in which blacks trying to vote in Louisiana in 1873 were systematically disarmed and then subjected to three days of arson, riot, rape and murder with over 100 dead before Federal troops moved in to restore order.[27] The Heller court of 2008 condemned Cruikshank yet again (in addition to the footnote above) when they cited with approval a new book by Charles Lane, "The Day Freedom Died" in which "the day" was the day the Cruikshank decision was handed down, basically "legalizing" over 4,000 lynchings and innumerable civil rights violations by state and local governments by barring Federal protection of civil rights.[28] This strong 2008 condemnation of the main anti-incorporation case against the 2nd Amendment has left many observers more or less certain that 2nd Amendment incorporation will happen at the Supreme Court in 2010.[29]

In 2010, the Washington State Supreme Court held the Federal Second Amendment applies to Washington State: “[T]he Second Amendment protects an individual right to bear arms from state interference through the due process clause of the Fourteenth Amendment. This right is necessary to an Anglo-American regime of ordered liberty and fundamental to the American scheme of justice."[30]

Note: also wander around in the Plessy v Ferguson,

And the supremes are a bunch of amoral scum for not reversing Cruikshanks when they did Heller. Between Cruikshanks, Presser v IL and a bird brained decision where they said women were citizens but not persons subject to equal protection Bradwell

oh here it is
http://en.wikipedia.org/wiki/Bradwell_v._Illinois
which required another constitutional amendment to fix

you will need your anti nausea meds these putzi are total lost causes and the SCOTUS just lets them pollute the judicial system. You may have noted that Chicago quoted Presser in their Macdonald briefs and CA just loves to quote Cruikshanks to justify their disparagement of the 2nd amendment.

 

[inclinebench]

Kagan and guns

From the little that can be found from her writings on guns, it appears Kagan is not very pro 2nd amendment, yet has not made a concrete argument as to why she is not "sympathetic" to 2nd amendment rights.
http://www.bloomberg.com/apps/news?pid=20601087&sid=aPI35t8uR6Gs

 

[inclinebench]

I was not trying to start a political discussion, rather a legal one. The article cites her writings when she was clerking. These writings indicated a position on the 2nd amendment, but did not provide any legal reasoning for that position. I was hoping to get people talking about how a clerk's non-binding feelings could be indiciative of later judgements by that person. The point being that it is known how she felt, but would that "feeling" be used for a legal judgement? Could she find legal reasons behind her feelings, when it came to an actual ruling? Not meant to be ploitical.

 

[Bartholomew Roberts]

These writings indicated a position on the 2nd amendment, but did not provide any legal reasoning for that position.

They don't really indicate a position on the Second Amendment for that matter. All that happened is a man attempted to challenge D.C.'s gun law on Second Amendment grounds at the Supreme Court level during Marshall's term and that Kagan recommended Marshall deny cert writing "I am not sympathetic" in the margin.

She may not have been sympathetic because she was a 27yr old student a few years out of law school who had been taught that the Second Amendment was a dead letter that protected only a collective right - after all, much of the leading scholarship on the Second Amendment did not really begin until the 1990s. Heck, for all we know she might have secretly been a Second Amendment supporter who recommended denying the case because she didn't want the collective rights theory made permanent by the Supreme Court (unlikely in my view).

Kagan also drafted (at the order of her boss) the 1998 Executive Order expanding the ban on imported semi-autos under the sporting purposes clause.

On the flip side, Kagan also expressed support for the Heller decision in her confirmation hearings as well as the principle that it provided strong; but not unlimited protection against government regulation.

And apparently as Dean of Harvard Law School she was supportive and helpful to the HLS Target Shooting Club founded by Sasha Volokh.

All in all, there just isn't a lot there to provide a good reference how she would rule on Second Amendment issues. On the bright side, Justice Stevens gave us exactly ZERO pro-Second Amendment rulings, so it isn't like she is going to be worse.

 

[inclinebench]

Thank you Mr. Roberts, that is exactly the type of discussion I was hoping to evoke.

 

[Phatty]

Even if the Supreme Court was suddenly populated by nine rabidly anti-gun justices, they would not overturn Heller because it is unnecessary. All they would have to do is say, "Heller said that the 2nd Amendment is an individual right. X law is a reasonable reguation by the government that does not violate that right."

Note that even if the Heller majority had established strict scrunity as the relevant standard to use in evaluating gun control laws, it still wouldn't make a difference because any anti-gun court will simply find that the law at issue survives strict scrutiny analysis.

 

[Telumehtar]

“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,”

Actually lets look at this one statement and dissect it a bit.

Note she states, that "There is no question ,after Heller, that the Second Amendment guarantees individuals the right to keep and bear arms..."

Instead of stating that there was no question rooted in the second itself, she is instead ceding the ground because of case precedent. Case precedent has been overturned in the past in this country, and while currently all the senators like to grill judicial nominees over whether they would honor precedent (mostly in relation to Roe v. Wade), I have no doubt that when the political mondset is convenient, that reverse precedent setting rulings will come back into favor at some point.

This is important, because she is going to be a young judge with the potential to be on the bench for a VERY long time. So is her understanding on this Constitutional issue one rooted in Constitutional understanding, or simply a battle worth ceding for now, only to be revisited later? For an indicator on that I would refer to the second part of her quote:

"and that this right, like others in the Constitution, provides strong although not unlimited protection against governmental regulation."

Clearly from that language she does not recognize the "shall not be infringed" portion of the second amendment. Thus I call into question her understanding of the whole amendment, and think that her play to the Heller precedent is simply one of political convenience.

Her views are right on display regarding this matter, if anyone would bother to just listen to her own words.

 

[jimbeam]

It may be that people here are focused on Kagan's views on the second, as well they should be. But with little information available, let's look at her view on the first amendment, might be helpful.

1996 "Private Speech, Public Purpose: The Role of Government Motive in First Amendment Doctrine" Kagan argued it may be proper to suppress speech because it is offensive to society or to the government.

For you that are starting to fall in love with her, substitute "speech" and insert "guns".