Tag Archives | Elena Kagan

Kagan’s Scholarship

At Balkinization, Marvin Ammori and Mark Tushnet review some of Elena Kagan’s scholarship (and seem more impressed than Paul Campos and Paul Mirengoff). Ammori explores some of her First Amendment scholarship and wonders whether she is sympathetic to “corporate speech rights,” such as those embraced by the Supreme Court in Citizens United.  Brian Leiter also comments here.

Tushnet is particularly impressed by her article “Presidential Administration,” 114 Harvard Law Review 2245 (2001); “this is an incredibly smart and insightful piece of work.”  I agree with Tushnet.  The piece foreshadowed the rise of White House “czars” and other methods of ensuring greater Presidential control of the executive branch.  Combined with “Chevron’s Nondelegation Doctrine,” 2001 Supreme Court Review 201 (2001) (co-authored with David Barron), it reveals that Kagan is a strong supporter of Presidential authority over executive agencies.

I am particularly struck — though definitely not convinced — by her and Barron’s effort in the latter article to reformulate Mead‘s approach to Chevron deference to grant more authority and autonomy to high-level political appointees.  Specifically, they argue that Chevron deference should turn on the nature of the decisionmaker, not the process through which the decision was made.  In other words, if a statutory interpretation is made by a low-level career official in the conduct of his or her duties (e.g. a tariff classification ruling), no deference is due.  But if it is made by a high-level political appointee to which Congress has delegated decision-making authority under the relevant statute, this fact is more important than whether the agency used notice-and-comment rulemaking or some other more formalized decision-making process.  It’s an interesting argument — and one that shares some commonalities with Justice Scalia’s approach to Chevron deference questions — but also one that is in tension with [...]

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Preliminary Reflections on the Kagan Nomination

I don’t have a lot to say about Obama’s nomination of Elena Kagan that can’t be said better by others. Unlike now-Justice Sotomayor, she does not have an extensive record on issues that are within my core areas of expertise. I do, however, want to highlight one important advantage Kagan has over the realistic alternatives: an apparent openness to non-liberal ideas.

I. Kagan’s Relative Openness to Non-Liberal Views of the Law.

My general view of Kagan is that she is quite liberal and likely to vote with the liberal bloc on the Court on most important issues. At the same time, however, her record at Harvard shows that she has respect for alternative perspectives and takes them seriously. In this respect, , she seems different from Sotomayor, who wrote several opinions that disposed of major controversial legal issues in a cursory fashion that made it clear that she did not believe that the other side had a serious case that deserved serious consideration (see, e.g., here, here, and here).

Given the nature of the Obama Administration and the large Democratic majority in the Senate, it was more or less inevitable that we would get a liberal nominee and that she would probably be confirmed. In such a situation, I would rather have a liberal justice who takes alternative perspectives seriously and might occasionally be persuaded by them than one who is generally dismissive.

It is also worth mentioning that Kagan has critics on the left who believe that she is almost a closet conservative. I highly doubt that is in fact the case. Kagan has a long record of liberal views and involvement with liberal causes. It is significant that there aren’t any noteworthy conservative or libertarian legal scholars or activists who believe that Kagan [...]

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Elena Kagan: “I LOVE the Federalist Society! I LOVE the Federalist Society!”

Charles Fried tells part of the story about Elena Kagan’s appearance at a Federalist Society dinner at Harvard a few years ago:

In February 2005 the student branch of the Federalist Society (a group founded in the early ’80s to explore and promote conservative and libertarian perspectives on the law) held its national jamboree at Harvard Law School. At the banquet in a downtown hotel, Kagan rose to speak the host institutions’ words of greeting to the thousand or so federalists assembled from every corner of the country. She was greeted by a long and raucous ovation. With a broad grin and her unmistakable Upper West Side twang, the former Clinton White House official responded: “You are not my people.” This brought the dark-suited crowd of federalist students to their feet in a roar of affectionate approval.

Fried leaves out enough of the story that it becomes incomprehensible. Why would the Federalists cheer someone seemingly insulting them by saying, “”You are not my people”? What Fried forgot (or chose to omit) were Kagan’s two lines immediately before her disclaimer.

On the night of Fried’s story, in a very large banquet room I was sitting next to Frank Easterbrook, perhaps 15 or 20 feet from Elena Kagan. She began her welcome by booming out:

“I LOVE the Federalist Society!”

Kagan paused for emphasis and then repeated,

“I LOVE the Federalist Society!”

As I recall, after applause Kagan’s next line was:

“But, you know, you are not my people.”

The crowd indeed loved it. But without Kagan’s opening lines, Fried’s affectionate account in the New Republic makes little sense.

Kagan then went on to explain why she loved the Federalist Society — chiefly, its contributions to the intellectual lives of American law schools and its commitment to open debate. She talked about [...]

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Justice Kagan I Presume?

SCOTUSBlog’s Tom Goldstein says the pick is coming tomorrow, and David Lat has reasons to think it’s Kagan (as Politico reported Friday).  If Kagan is the pick, there will be no filibuster and she will be confirmed — perhaps even with 65 votes as Goldstein predicts — but there could be some bumps on the ride.

UPDATE: NBC is confirming. [...]

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Closing in on a Court Pick

Politico‘s Mike Allen thinks soJan Crawford profiles the pros and cons of the final four — SG Elena Kagan, and Judges Diane Wood, Sidney Thomas, and Merrick Garland — while most of the buzz surrounds Kagan and, to a lesser extent, Wood.  For what it’s worth, I remain skeptical that SG Kagan would be easier to confirm than Judge Wood.  This is the conventional wisdom, but here is why I think it’s wrong.

As an initial matter, I think it is easier to confirm a sitting appellate judge with sterling credentials than an administration insider.  Add that the judge is from the midwest while the insider is yet another Ivy Leaguer, and the distinction becomes more stark.  Further, polls suggest the public wants a nominee to have some prior judicial experience — and Kagan has none.  Indeed, she also had relatively little legal experience outside of academia.  This does not mean she’s unqualified, but I do think it means she would be easier to oppose — and therefore would be a heavier lift.  [Note, however, that I would not oppose confirmation of either SG Kagan or Judge Wood.]

The knock on Judge Wood is that she would be a controversial pick because of a handful of opinions concerning abortion and religious liberty, and perhaps a criminal case or two.  These cases confirm what is well-known — that Judge Wood is a liberal judge.  But that should hardly be a surprise.  It is unthinkable that President Obama would nominate someone who is not reliably liberal on most major issues, particularly abortion.  Senate Republicans did not go to the wall to oppose Justice Ginsburg’s confirmation over these issues, and they won’t with Judge Wood either.  Further, any controversy over her judicial opinions would be a “day one” story.  That [...]

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