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May 11, 2010


Appellate experience is not a pre-requisite to be on the SC. You don't even have to be a lawyer. I think her legal background is probably sufficient for the job. I think Obama should have picked the liberal equivalent of Alito or Roberts, but I guess that's not his style.

[HS: Don't see where I wrote anywhere that there's a legal or constitutional requirement. "Qualified" means having the experience needed to do a good job.]

Rhenquist was never a judge before he got tapped to become an associate justice. Nor was powell, white, fortas, frankfurter, and i think a few others. Jackson didn't even go to law school ffs.

Was obama going to pick someone that I would want like Kozinski? No. He was going to pick someone left-of-center. But Kagan is surprising here because she's not the choice a lot of people were suspecting: Diane Wood who is apparently a progressive in every sense of the word. I mean, this is a huge gift to the conservatives imo.

If the republicans sink this ship, they're going to have to deal with Obama picking Diane Wood as his back-up. And that is, I think, a way worse scenario. Particularly as Kagan seems to be (according to my perusing of Volokh) quite a reasonable person and not outright hostile to conservative views. (i think someone had pointed out that there are hints of originalism in her writing).

Kagan is indeed unqualified compared to other potential Obama picks and most supreme court picks of the past several decades. She has little experience in the courtroom at all, either as a judge or a lawyer. Her past year or so as Solicitor General is her first major courtroom job and she hasn't been especially successful. Also, for all the talk of her being a brilliant academic, her achievements are largely limited to administration (Dean of Harvard Law). Other potential picks (Cass Sunstein, Pam Karlan, etc.) are much more prolific academics who published far more legal articles and books. Kagan has a handful of published papers.

Frankly, I think it's highly disturbing that Obama is expecting people to vote to approve someone with such a scant paper trail. I'm wondering if this was a crony pick --- Kagan graduated from Harvard Law School, Obama's Alma Mater, and was a professor at the U of Chicago at the same time as Obama.

I must say, though, that I agree that it's not in the best interest of Republicans to oppose her, since she's A) relatively moderate, and B) a weakling --- she hasn't persuaded the Supreme Court justices very well at all as Solicitor General.

"I don’t see any benefit to conservatives if they try to fight her nomination."


You dont think its a good idea to raise the question to the public of why Obama would nominate a socialist to the highest court?

And the fact that the woman cant take a good picture means the more exposure she gets the less the public will like her.

How many SC vacancies in a row is it going to be "men need not apply?" Two so far since as I understand no man was on the shortlist last time, and one seemed to receive only trivial consideration this time. Until 3 women are on the court after Ginsberg? 4? 5?

"If Republicans ever manage to win the presidency again, the existence of so many women on the Court will just make it easier to nominate smart conservative men without regard to the demographic makeup of the Court. "

This is the kind of observation that makes your blog worth reading.

HS - what do you think of her sheer intellectual ability? You posted about how you thought Sotomayor was kind of mediocre.

FWIW, I think she's probably intellectually first rank. Her intellect leads her to say things like, "there is no constitutional right to same-sex marriage" even though her heart probably says something different.

All in all this may be as good as it gets for conservatives: a highly intelligent non-dogmatic leftist who realizes that you can't read what you want into the Constitution, and who paves the way for a Republican president to nominate white men. (IF they still have the balls to.)

3 Jews on the Supreme Court? I don't care much about Jewish conspiracies, but this is really in your face.

[HS: I'd be much more concerned about the Catholic conspiracy. An overwhelming majority of six Justices taking marching orders from the Vatican? Very scary.]

Even if she was the most mouth-frothing socialist imaginable, her appointment is of almost zero significance in the grand scheme of things. Liberal president replaces retiring liberal justice with another liberal. The court will vote the same way on contentious issues and the status quo marches on.

The GOP should just push her through without opposition and move on to other things.

"That didn’t work out too well for conservatives when Bush nominated Justice Souter."

If you don't know anything about some establishment-approved person's political views, they're a fukkin' Leftist. Therefore picking stealth candidates is not a problem for Democrats, only for conservatives when Republican Presidents do it. Obama knows full well that Elena is predictably Leftist, or he wouldn't have appointed and nominated her.

"I would also say that she’s not really qualified to be a Supreme Court Justice, because she has absolutely no experience working as an appellate judge."

But unlike Miers, she went to the "right" schools and does not give off any prole vibes, so she is a shoo-in regardless of her insulting lack of proper experience.

The Catholics on the SC are ideologically diverse; the Jews are not.

Off topic: What in the world is David Souter doing these days? He's a recluse in New Hampshire (which may be a redundancy).

"3 Jews on the Supreme Court? I don't care much about Jewish conspiracies, but this is really in your face."

Why does it matter if there are 3 liberal Jews on the court instead of 3 liberal white male Protestants? The 3 liberal Jews on the Supreme Court don't think any differently than the liberal Protestant/Episcopalian Justices such as JP Stevens, Souter, David Souter, Lewis "Diversity is compelling state interest" Powell, and Earl Warren.

If the liberal male WASPs like Souter and Stevens don't think any differently than Jewish and Catholic liberals do then there is no reason to believe the religious demographics of the court matter when it comes to rulings.

In fact, the Jewish Elena Kagan is not as liberal as the WASP John Paul Stevens so her nomination may end up moving the court to the *right*.

PS: Do you guys who keep complaining about Jews being overrepresented realize that post-1933 WASP elite (such as FDR, John Paul Stevens, David Souter, the Rockefeller family, the entire leftist Bush family, etc) was and is liberal and not conservative, right?

"You dont think its a good idea to raise the question to the public of why Obama would nominate a socialist to the highest court?"

The GOP should let her through because there are far worse candidates Obama could have chosen such as Diane Woode.

Furthermore, John Paul Stevens was extremely liberal so replacing Stevens with Kagan probably moves the Roberts court further to the right.

"The Catholics on the SC are ideologically diverse; the Jews are not."

The Jews were appointed by liberal Democrat presidents who were going to choose a liberal justice regardless of religion.

Also, Reagan nominated a conservative Jewish justice, Douglas Ginsburg, to the Supreme Court but withdrew the nomination over over a marijuana scandal.

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