Michael Gaynor
Elena Kagan's SCOTUS nomination is coming, exactly when may matter
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By Michael Gaynor
April 6, 2010

President Obama's rating has fallen sharply since the Sotomayor confirmation, so Justice Stevens is not likely to wait for the persons elected to the United States Senate this November to take office next January and President Obama will go with the younger Kagan now and other hopefuls may hope that Republican electoral success in November prompts Justice Ginsberg, former ACLU counsel, to reconsider her plan to stay on the bench for a few more years and give President Obama a chance to appoint a judicial activist like her with the consent of a lameduck Senators (like Senate Majority Leader Harry Reid).

On February 23, 2010, at the SCOTUS Blog, Tom Goldstein posted what appears to be a glimpse into the future titled "On October 4, 2010, Elena Kagan Will Ask Her First Question As A Supreme Court Justice And Justice Ginsburg will look across the bench at her new colleague and smile (www.scotusblog.com/2010/02/on-october-4-2010-elena-kagan-will-ask-her-first-question-as-a-supreme-court-justice/).

Goldstein:

"The Administration cares about the Court and wants to have a lasting impact on it while (if it can) avoiding incurring a short-term political cost in the process. This is the "have your cake and eat it too" strategy."

"...here is how I expect the next few months to play out. In the spring, Justice Stevens will announce his retirement. In May or June, the President will nominate Elena Kagan. Explaining that her paper record is a thimble-full of Sonia Sotomayor's, Senator Leahy will schedule hearings and Senator Reid will schedule a floor vote before the summer recess. The only theme that will give opponents any success is that she fails to express her views on anything. She will then be confirmed by a vote of 61 to 39. Ok, that last prediction about the exact vote could be off by a bit, but I feel pretty confident about everything else."

Count on Justice Stevens to resign soon so that President Obama can appoint a judicial activist successor to be confirmed by the United States Senate as presently constituted, not to risk waiting a year and having his successor subject to confirmation by a significantly more conservative United States Senate.

Goldstein concedes that there is concern about the prospect of more Republicans in the United States Senate: "The Democrats have already lost their filibuster-proof majority....here are now conversations about whether in 2010 they might lose their absolute majority."

The top three "suspects" as Stevens successor are Solicitor General Elena Kagan, 49, and federal appellate judges Diane Wood, 59, and Merrick Garland, 57.

Judge Garland's sex appears to rule him out, because President Obama wants to nominate female SCOTUS justices.

Goldstein: "After only Judge Wood, D.C. Circuit Judge Merrick Garland is the most respected Democratic appointee now on the bench. Indeed, in Washington circles, he is much better known. His opinions are moderate and uniformly thorough and well-reasoned. He also has much more law enforcement experience from his significant service in the Department of Justice. He would be confirmed in a cake walk; it would be a victory lap. But the tie-breaker here is gender, for the President gets a benefit from appointing two women to the Court."

President Obama's first Supreme Court appointment went to La Raza (and ACORN) favorite Sonia Sotomayor, for obvious political reasons, when President Obama's approval rating was much higher than it is now.

President Obama's rating has fallen sharply since the Sotomayor confirmation, as he proceeded to pursue his radical agenda (e.g., Obamacare, Cap and Tax, generational "theft" to effect wealth redistribution), so Justice Stevens is not likely to wait to resign for the persons elected to the United States Senate this November to take office next January and President Obama will go with the younger Kagan now and other hopefuls may hope that Republican electoral success in November prompts Justice Ginsberg, former ACLU counsel, to reconsider her plan to stay on the bench for a few more years and give President Obama a chance to appoint a judicial activist like her with the consent of a lameduck Senators.

Goldstein extols General Kagan, predicts that opposition to her confirmation will be futile and views her as President Obama's kind of SCOTUS justice and a political plus for Team Obama.

Goldstein: "...so long as the President is ultimately convinced and I am confident he will be that General Kagan does in fact broadly share his vision for the law and constitutional interpretation in particular, the White House will regard...ambiguity and...anxiety that [her nomination] generates among the left as a good thing, not bad. The morning that Sonia Sotomayor was nominated, the Administration was extremely pleased to see the selection described as a disappointment to liberal groups that wanted Judge Wood instead. Politically, that helps their strategy of positioning the President and his nominees as moderate rather than liberal."

But Goldstein's praise of General Kagan calls to mind "stealth" Justice David Souter, replaced by Justice Sotomayor.

Goldstein: "General Kagan is extraordinarily almost artistically careful. I don't know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade. Now, there are obviously an awful lot of people whom I do not know. But I have never talked to anyone who talked to anyone who had a conversation like that."

But General Kagan has not been hiding an affinity for judicial restraint and thus is not really SCOTUS material, as illustrated by a unanimous decisaion by all nine current SCOTUS members.

Edward Whelan, president of the Ethics and Public Policy Center (http://bench.nationalreview.com/post/?q=NmVmNzJiNzc4MDBhMjdkOWUzMTBlNzBhZGRjNjQ4Mjg=):

"Among the many matters that deserve exploration is Kagan's opposition to the Solomon Amendment, the federal law that denies federal funding to an institution of higher education that 'has a policy or practice ... that either prohibits, or in effect prevents', the military 'from gaining access to campuses, or access to students ... on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer.' Before enactment of the Solomon Amendment, many law schools, in protest against federal law restricting homosexuals in the military, had barred or disfavored military recruiting on their campuses. For the same reason, many law schools worked to attack or evade the Solomon Amendment.

"Among her many actions in opposition to the Solomon Amendment, Kagan was one of some 40 or so law professors who signed their names to a Supreme Court amicus brief in Rumsfeld v. FAIR that offered a highly implausible reading of the Solomon Amendment that would have rendered it, as Chief Justice Roberts's opinion put it, 'largely meaningless.' The Chief Justice's opinion rejecting Kagan's reading and the other challenges to the Solomon Amendment was unanimous...."

Like the enactment of Obamacare, the appointment of a SCOTUS justice to the left of Justices Stevens, Ginsburg, Breyer and Sotomayor, no matter how charming, would be part of a plan to "fundamentally transform" America by giving the American people what the radicals think they need, not what they want, and something to be done, if at all, before new Senators take office.

© Michael Gaynor

 

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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