My latest–and final–ABA Journal online column from the Court’s 2009-10 term is now live:
Solicitor General Elena Kagan’s first unabashedly straight answer of her confirmation hearings to become a Supreme Court justice came early in her 17 hours of questioning by the Senate Judiciary Committee this week. Ninety minutes into Kagan’s interrogation, Sen. Herb Kohl, D-Wisc., asked her for her opinion on cameras in the Supreme Court.
“I think it would be a terrific thing to have cameras in the courtroom,” said Kagan (Video). “When you see what happens there, it’s an inspiring sight…It would be a great thing for the court and a great thing for the American people.”
Twenty-four hours earlier, I was sitting inside the court witnessing its final session of the term. Like a dozen times before, I had sat through the night on the pavement outside to be among the few who would catch a glimpse of the inspiring sight to which Kagan, by virtue of her office, had a front row seat all this year.
But on Monday morning, I would have traded all of my own fond memories of new friends made and stories told over the past six months for the whole country to have seen the same moving scenes I saw.
Read the rest here.
I’m here in the hearing room, but will not be liveblogging. If anything happens deserving of comment, I’ll post my thoughts.
We’re back on…and back in the hearing room.
Jeffrey Rosen has a very long, but very good, essay/review in The New Republic of Melvin Urofsky’s Brandeis biography. Entitled “Why Brandeis Matters,” the piece begins with an examination of Brandeis’s crusade against corporate and governmental bigness as applied to the Roberts Court’s reflection of today’s current economic and political climate and ends with an account of his Zionism as symbolic of his devotion to cultural pluralism.
In between these sections, Rosen provides a timely passage for the Kagan hearings:
In addition to combining judicial restraint with passionate anti-corporate progressivism, Brandeis’s Liggett dissent exemplified a third aspect of his judicial philosophy: his commitment to interpreting the ideals of the Founders in light of the entire range of constitutional history. In this sense, Brandeis provides an inspiring model for citizens today who are searching for an alternative to the rigid originalism championed by some Roberts Court conservatives, and also for an alternative to the untethered “living constitutionalism” of some Warren Court liberals. Brandeis combines elements of originalism and living constitutionalism into an approach that might be called living originalism.
Brandeis believed that the values of the Founders were immutable, but had to be translated into a very different world in light of dramatic changes in society, technology, and economics. He believed in constitutional change—in a talk called “The Living Law,” he charged that the law had “not kept pace with the rapid development of our political, economic, and social ideals” and said “the challenge of legal justice [was] to conform to our contemporary conceptions of social justice.” But Brandeis insisted that efforts to render constitutional values in a contemporary vocabulary always had to be rooted in the text and in the broad unchanging ideals of the Framers. By interpreting the values of the Framers in light of progressive movements across the range of American history, Brandeis believed they could be preserved in a way that served the needs of citizens in the here and now—which is, after all, what the Constitution was written to do.
This “living originalism”–not to be confused with the “restrained activism” I discussed in the post below–was on display today as Solicitor General Kagan sought to bust the originalist/activist binary.
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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.
Monday’s going to be a doozy. Last day of the term. Stevens’s last day ever. Decisions on Guns and God (Gays was decided yesterday), as well as a bit of man v. machine and what may be the financial industry’s own Citizens United.
But that’s not all!
About two hours after the Court lets out for its summer recess, the Senate starts its preseason tryouts with Elena Kagan.
I plan on being in the Courtroom and the hearing room. And my liveblogging the latter will hopefully be made more colorful by my sleepless Sunday night on the Supreme Court Side Walk.
That’s right: I will be conducting a my own final F1@1F campout for the term. I suspect it will be a fun one, as the Guns and God oral arguments had the earliest and most enthusiastic lines of the term – and Monday’s certainty of those decisions and the drastically warmer weather (plus the prospect of a stately nonagenarian screaming, “I’m Outta Here!” to a captive audience, tossing reams of paper into the air in a sign of aged defiance) point to a big turnout.
I’d love to see some F1@1F readers out there, too. If you’re planning on coming to the sidewalk, please do let me know.
David Ingram of the National Law Journal is reporting that Patrick Leahy may push for retired justices to sit for cases in which other justices recuse themselves.
According to the article, Justice Stevens made this recommendation to Leahy (D-VT), the Chair of the Senate Judiciary Committee.
This seems to me a politically loaded suggestion. There has already been much talk about Kagan’s potentially high recusal rate over the next few terms as the Court continues to hear cases that her office had briefed in the lower courts. On divisive issues, Kagan’s absence would lead to 5-3 victories for conservatives or ideological deadlocks at 4-4.
I cannot imagine that the GOP members of the Judiciary Committee will agree to this plan. If Kagan does not recuse herself on a case in which a conservative may be obligated to do so, two of the substitutes–Souter and Stevens–would be a fifth vote on the left. It is not inconceivable that these two retired ringers could cut away at the Roberts Court’s business-friendly precedents, as the Court sometimes goes shorthanded on cases concerning corporations in which justices may own stock.
O’Connor, too, exited the Court to the left of Anthony Kennedy on campaign finance, church-and-state, abortion, and affirmative action cases – all issues that have been cut back since Alito succeeded her. However, recusals on these cases are less likely. That is, unless some advocacy group somehow finds a not-too-distant relative of Justice Scalia who is an abortion doctor in Nebraska that is willing to be a named plaintiff in a federal case.