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Recently in Kagan nomination Category


Kagan and "settled law"

Kagan deflected questions about her opinion on the Second Amendment by phrasing the issue as "settled law." Of course, Sotomayor did the same thing a year ago, and she was one of the four justices in the fervent dissent in McDonald v. City of Chicago—a dissent that made it quite clear that those justices would have overturned the Heller decision. Little surprise that the NRA has finally come out against the Kagan nomination. Note the similar, but substantially more dishonest, equivocation of the White House and Senator Schumer to Politico—Kagan never lied and said that Second Amendment supporters had nothing to fear.

Of course, I don't think justices have to give up the ghost after a 5-4 decision that they think is wrongly decided. But the Judiciary Committee should have done more to challenge what it means to a potential justice for something to be "settled law."

Copland on Kagan

What does it mean to be "properly deferential" asks MI's Jim Copland in yesterday's Washington Examiner.

Separately, Senator Tom Coburn was the only senator to hold Kagan's feet to the fire. He posed a hypothetical about the limits of the Commerce Clause: can the federal government mandate citizens eat fruits and vegetables every day? Kagan got out of it by endorsing the Supreme Court jurisprudence that the Commerce Clause does not apply to "non-economic activity"—but of course, nearly everything counts as economic activity under the left's version of the Commerce Clause, where all Congress would have to do pass this law is recite "findings" that the failure to eat fruits and vegetables had a deleterious effect on the nation's economy. [YouTube; Politico; LA Times]

The Kagan nomination, June 27

  • The Kagan hearings start tomorrow. George Will has some questions. [WaPo] So does the LA Times.
  • The military-at-Harvard issue will be big. [CSMonitor; NPR]
  • The last cases of the Supreme Court term will have some effect on the hearings. [FoxNews]
  • Dueling headlines: White House says it will get, but is pessimistic about, GOP votes. [Politico; BLT] A more interesting question is the vote of a swing-state Democrats like Blanche Lincoln.
  • Richard Epstein argues that the rebuttable presumption in favor of a presidential nomination means he supports Kagan. Wouldn't it be nice if Democrats reciprocated and a Republican president could nominate Epstein to the court? Sigh. [Daily Beast]
  • The Judge Aharon Barak issue goes mainstream. Sort of. [Politico; NYT whitewash]

Kagan on tort reform

We've previously written about Kagan's role in the Clinton administration opposing product liability reform, an act that helped bankrupt two of the Big Three auto companies a decade later. Now we learn from the New York Times that Kagan all but single-handedly persuaded Clinton to veto the Private Securities Litigation Reform Act, which suggests that she'll care more about the effect on trial lawyers than on regular Americans when it comes to pleading standards cases. Furthermore, Kagan's clerkship memos to Justice Marshall suggest she was on the wrong side of DeShaney, putting her to the left of Stevens (well, the 1989 version of Stevens, anyway) on this issue. By the end of his tenure, Stevens was reflexively voting in favor of expanding the role of courts in society and against anything that might put reasonable limits on liability—he was the sole dissent in Twombly and Tellabs, for example. So while Kagan isn't likely to pull the Supreme Court that much further to the left, there is no reason to think she is a moderate on civil justice issues.

The Kagan nomination, June 12

  • WaPo take on the first batch of memos and the second batch of released memos. Note the analog to e-discovery: the electronic records—tens of thousands of emails where Kagan did not annotate in pen—remain unreleased, but the Clinton administration has released more documents for Kagan than the Reagan administration did for Alito or Roberts. That's not because the Reagan administration was more secretive, but because the late 1990s generated many more documents than the 1980s did, increasing the expense of discovery costs in the process.
  • Impasse over scheduling of hearing, which is two weeks away with 80,000 or so emails remaining unreleased. [Levey]
  • Sessions and Kyl point to Kagan memos for Marshall as examples of results-oriented jurisprudence, though the evidence they use is thin: the adjective "not sympathetic" can also mean unsympathetic to the legal strength of an argument. [Bloomberg]
  • Documents about Kagan's views on Jones v. Clinton withheld from public, though not Senate Judiciary Committee. [AP]
  • The Clinton documents show Kagan's support for a narrowly-threaded needle in the infamous Piscataway Board of Education v. Taxman case. [Crawford @ CBS]
  • Good biographical feature. [WaPo]

The Kagan nomination, May 27

  • This reflects disenchantment with Obama more than anything else, since I doubt more than a small fraction have an informed opinion about Supreme Court nominations, but Kagan's favorable-unfavorable ratings are 41-47 in a poll. That's not likely enough opposition to peel off the dozen or so Democratic senators that would be needed to vote down a Kagan nomination, given that she is likely to get a few Republican votes. [Rassmussen]
  • Paraphrasing Senator Specter: "Dear Elena Kagan, Please tell me how you will vote in a couple of pending Supreme Court cases." Really? [BLT]
  • The New York Times does a couple of biographical rifle-shots: Kagan's Harvard Law grades and Kagan's relationship as dean with the rest of Harvard.
  • Young Republican Sarah Isgur gets around to endorsing Kagan half-heartedly after the White House puts her on a conference call. [USA Today; WSJ Law Blog]

As the folks on the Senate Judiciary Committee get ready to question Elena Kagan, they'd all be well advised to review the ground-breaking new article I had the pleasure of reading this afternoon, The Subjects of the Constitution (SSRN), by my law school classmate Nick Rosenkranz. In his common-sense logical-textualist approach to judicial review, Professor Rosenkranz suggests that courts should look first to the subject of a constitutional violation, i.e., who violated the constitution?

As his article makes clear, the answer to that question profoundly shapes how we might think about the Court's confusing jurisdictional doctrine (e.g., questions of ripeness, standing, and facial vs. "as applied" constitutional challenges) and also substantive questions of law. In this paper, Rosenkranz looks in some depth at those cases in which Congress is the clear "who": cases involving the First Amendment (an express limitation on Congressional power) and the Article I, Section 8 enumerated powers and Article 5, Fourteenth Amendment powers (each express grants of Congressional power, otherwise limited by the Tenth Amendment). He promises further analysis in a forthcoming follow-up paper, The Objects of the Constitution, as well as a forthcoming book (2011).

Obviously, the methodology suggested by Rosenkranz could shed interesting light on the constitutional questions of major interest to many of the readers of this site, including constitutional limits on punitive damages, federal preemption, and the impending honest-services fraud cases. I'll certainly be re-examining my thoughts in light of Nick's paper.

One interesting tidbit in the article regarding tort law comes in on page 1219, where Nick notes that the Supreme Court has regularly found constitutional violations without identifying a constitutional violator, and notes a hypothetical link to tort: "This habit of mind is also abetted, perhaps, by the modern indulgence (unknown to the Framers) of plaintiffs who cannot identify their tortfeasors" (citing examples including DES and asbestos market-share liability cases).

Others including Lawrence Solum, Randy Barnett, and Ilya Shapiro are also taking notice.

The Kagan nomination, May 24

The Kagan nomination, May 19

  • Kagan responds to the Senate Judiciary Committee questionnaire. [SCOTUSreport, supplements]
  • I still don't think a 20-year-old's senior thesis tells us very much, but one can perhaps take solace from the fact that Kagan criticized the Warren's court's lawlessness. Or not. The scorekeeping of Kagan's Marshall memos in the WSJ piece is really grasping at straws: the Court rejects certiorari in the vast majority of cases, and that Kagan recommended a rejection of cert in several members of that set hardly tells us anything. [WSJ]

  • York and Whelan weigh in on the discussion of how Republicans should handle the Kagan nomination. Tit for tat, or make a second effort at truce?

The Kagan nomination, May 18

  • FrumForum's John Vecchione and Eugene Volokh independently discuss the merits of fighting the Kagan nomination starting from opposite positions, and generally come to the same conclusion.
  • Similar to Volokh's reasoning, Bainbridge calls Kagan a conservative win, considering the politically feasible alternatives. I don't know that I'd go that far: Kagan is better for conservatives than Koh (though Koh would present a much tougher vote for swing-state Democrats given his radicalism, and in that sense might well have turned out to be a conservative win if Senate Democrats rebelled in a much clearer battle of what was at stake on the Court), but I think that the alternative universe where Wood got the nomination turns out somewhat better for conservatives in the long run. I never got anyone on the right to agree with me on that proposition, though. [Bainbridge]
  • The Federalist Society's SCOTUSReport upgrades further with an impressive multimedia page and a list of resources that includes every senator's statement on the nomination, transcripts of Kagan's arguments, as well as materials from Kagan's earlier solicitor general hearings.
  • Kagan took a far-left position on the Fourteenth Amendment in a memo on the DeShaney case when she clerked for Justice Marshall—but, of course, so did Justice Marshall, and it was 23 years ago. [WSJ; Whelan @ Bench Memos]
  • Harvard's double-standard on gay rights. [Wehner @ Commentary]
  • Kagan's childhood neighborhood was the bastion of Bella Abzug. [Forward]
  • You won't learn much from the basic questions in the Senate questionnaire. [BLP]
  • Crovitz on Kagan's confirmation-hearing law-review article calling the process a "charade." [W$J]
  • But if you're looking for drama at Kagan's confirmation hearings, a Craigslist suitor of Kagan asks her to send a coded message in her opening statement. Shockingly, there does not appear to be a media frenzy over this, even as Andrew Sullivan backslides on his promise to drop his monomania over Kagan's personal life. [Above The Law; Craigslist]



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