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F1@1F LIVEBLOG: KAGAN HEARINGS – DAY 1
Keep refreshing until I figure out how to autorefresh…
12:36 – Senator Leahy is giving his opening statement to a completely packed Hart Senate Office Building Room 216. Not saying anything remarkable right now–of course, not much remarkable gets said by anyone at these things. So for the moment, I’ll busy myself admiring the suspendered-reporter sitting directly in front of me who must have just blasted to the future straight from the Brandeis confirmation hearings.
12:45 – Senator Sessions begins his own opening statements. Here come the march of serious concerns. First mention of the Warren Court’s activism. Looking forward to see him go toe-to-toe with Leahy’s references to Citizens United and Vermont Marble.
12:50 – The Kagan Nomination has emerged as the only area Congress feels free to criticize any aspect of Israeli law and politics. Sessions has repeated his problem with Kagan’s admiration for former Israeli Chief Justice Aharon Barak, who sessions has called the most activist judge ever.
12:55 – Herb Kohl (D-WI) has fired the first shot against last year’s Robo-Soto performance and 2005’s Roberts hearing. Paging Justice Souter: “We hear the over-used platitudes from every nominee, that he or she will apply the facts to the law and faithfully follow the Constitution. But, deciding Supreme Court cases is not merely a mechanical application of the law…You will not merely be calling balls and strikes.”
1:08 – Senator Feinstein (D-CA) notes Kagan’s firstiness as a female Solicitor General. There have been five SG’s to be SCOTUS justices. “Nearly every SG” has endorsed her. Bork hasn’t.
1:11 – Feinstein mentions that Rehnquist and Warren were not judges. “Extremely dismayed” to hear about McDonald – that they “disregard the precedent of 71 years embedded in United States v. Miller” – except that Miller was admittedly opaque by all. “As a former mayor,” she says, she’s aghast by these cases’ tossing aside of state and local regulatory control.
Four 5-4 decisions, three dissents from the bench, and very touching reflections upon the life of Marty Ginsburg and the career of Justice John Paul Stevens. Really an amazing experience inside the Court this morning.
Rushing off to Kagan Hearings now. First, a few quick thoughts:
- McDonald: 5-4 result as expected for full incorporation with Thomas concurring for PI Clause and Breyer registering a protest dissent from Heller. Contra my prediction, Stevens and Sotomayor dissented from incorporation, with the former writing for himself and the latter joining Breyer’s dissent along with Ginsburg.
- Bilski: Stevens lost his majority, which explains the long delay. Kennedy wrote the majority, signaling that perhaps he had changed his vote. Stevens read his concurrence (which was really a dissent) from the bench.
- PCAOB: The Roberts Court is really getting in the habit of rewriting federal statutes by judicial fiat. With NAMUDNO last year, and Skilling and PCAOB this year, lots of legislating from the bench, albeit for apparently varying motivations that I will explore at some point this week.
- Christian Legal Society: No one would have blamed Justice Ginsburg for skipping today, but in she came to read her majority opinion.
Also, it appears that Justice Breyer took this morning to be his coming out party as the liberal bloc’s new leader. His two dissents from the bench were lengthy and passionate, and I got a palpable sense that he had seized the torch from Stevens, whether or not it had actually been passed to him.
I didn’t expect Art Lien to scan and send over his work so fast, but these are awesome. Huge thanks for doing these, Art!
Back home for a shower and a suit-up. A few thoughts:
- How wonderful it is to come home sweating rather than freezing.
- The fifth person in line was the Phantom First from McDonald – the oral argument was on a Tuesday, but he arrived at 7am on the Sunday prior. I discovered him that day while I was on an afternoon run with the First Lady of First One @ One First. Later that evening, I went back to talk to him. Once there, another two people showed up to scope out the line. The Phantom First was packing his things up after a day in the cold when he realized that his brother, for whom he was keeping a second seat in line, was not coming. He said he’d be back the next morning (Monday) at 4am. I had no interest in competing with that, but the other two were appropriately spooked and got to the Court at 5:30am on Monday morning…with the Phantom First nowhere to be found. Those two–Rob and Larken–became the first ones at One First for McDonald. Last night, then, I was pleased to see the Phantom First return with his brother to claim fourth and fifth in line.
- The best and worst part about this blog is having readers inspired enough to beat me to the Court.
- A largely lawyer/law student crowd this morning, but Dick Heller and Otis McDonald also got in line to see their gun rights cases extended and won, respectively.
- Around 1:30am, we were regaled to some tales, whether true or tall is undetermined, by a man from Noname, Alaska trying to find Union Station. He spoke of white moose and face-licking grizzlies while catcalling the Court police officer on duty.
Gotta get moving to get back to the Court on time for Stevens’s last day and the final four decisions. I’ll have something more expository about the campout and the decisions later tonight or tomorrow.
Until then, enjoy my 12:30pm liveblog of the Elena Kagan hearings!