Prof. Chemerinsky says Justice Ginsburg "has in her power the ability to prevent a real shift in the balance of power on the court."

"On the other hand, there's the personal. How do you decide to leave the United States Supreme Court?"

Wow! How much of this kind of moral pressure is being applied to the venerable Justice?

Democrats and liberals have a nightmare vision of the Supreme Court's future: President Barack Obama is defeated for re-election next year and Justice Ruth Bader Ginsburg, at 78 the oldest justice, soon finds her health will not allow her to continue on the bench.

The new Republican president appoints Ginsburg's successor, cementing conservative domination of the court, and soon the justices roll back decisions in favor of abortion rights and affirmative action.

Abortion and affirmative action. Abortion and affirmative action. That's the fixed point in constitutional law for a lot of people: it must work out in favor of abortion and affirmative action.

[S]ome on the left say ... Ginsburg needs to put self-interest aside and act for the good of the issues they believe in, Harvard law professor Randall Kennedy wrote recently. Kennedy said 72-year-old Justice Stephen Breyer should leave, too....

Get out, you selfish oldies — say some on the left — Obama needs to appoint some liberal ideologues before its too late!

David Garrow, a Cambridge University historian who follows the court, said Ginsburg's situation points to an institutional problem for the court, "the arguably narcissistic attitude that longer is better."

Narcissist!

Justices sometimes look at electoral projections when considering retirement, he said, adding that Ginsburg probably still could decide to retire next summer if Obama's electoral prospects seem shaky.

The rest of the article is a history lesson about how waiting too long doesn't work. Earl Warren, LBJ, Richard Nixon, Warren Burger and all that. The message is clear. The liberal media want Ruth Bader Ginsburg out now.

I know that sounds mean, but it's not me saying it. I'm just paraphrasing for clarity.

“Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy’s mind.”

That's actually the most embarrassing sentence in Larry Tribe's letter to Obama about who to nominate to the Supreme Court.

I love the use of the noun "purchase," meaning, not something you buy, but "A means of increasing power or influence" or "An advantage that is used in exerting one's power." That's the 5th definition of the noun in the 3d edition of the American Heritage Dictionary. Here are some other, related definitions:

2. A grip applied manually or mechanically to move something or prevent it from slipping.

3. A device, such as a tackle or lever, used to obtain mechanical advantage.

4. A position, as of a lever or one's feet, affording a means to move or secure a weight.

You get the idea of the image Tribe had of Kennedy's brain? If you read the whole letter — PDF — you'll see that Tribe thought Justice Souter had "purchase," and he was worried that without Souter, Kennedy would roll toward the "Roberts/Alito/Scalia/Thomos wing of the Court." He thought Elena Kagan — and not Sonia Sotomayor — would operate — as a tackle or lever? — to move "Tony Kennedy's mind."

Kagan, Tribe said, had a way of "gently but firmly persuading a bunch of prima donnas to see things her way in case after case." Of course, he was referring to the prima donna professors at Harvard Law School, and mainly talking about new faculty appointments, which is quite different from persuading Supreme Court Justices about interpretations of law. It's one thing to build a law school community where professors can spout diverse ideologies and still feel like it's a happy, functioning institution. It's quite another to amass votes for a legal proposition that produces an outcome in a case and binds all the courts in the United States.

And if the target of a light touch knows that the most powerful man in the world has selected that approach to prying his brain into a particular political direction, that target ought to become highly vigilant and not get played.

... I think it's clear that a Justice Kagan would be a much more formidable match for Justice Scalia than Justice Breyer has been... in the kinds of public settings in which it has been all to easy for Scalia to make his rigid and unrealistic formalism seem synonymous with the rule of law and to make Breyer's pragmatism seem mushy and unconstrained by comparison.

Tribe says Kagan will be "simultaneously progressive yet principled, pragmatic and yet constrained." That sounds like pragmatism. How does it not "seem mushy" like Breyer's pragmatism? Because it's asserted to be "constrained," while Breyer's pragmatism "seem[s]... unconstrained"? Because it's progressive — steadily aimed in one direction and not more subtly varied?

I'm sure Justice Kennedy doesn't need to be tipped off to this political scheme to clamber over the crusty crags of the convolutions of his brain. But Tribe's letter is amusing reading nonetheless.

Bork Kagan...

... says Bork.

I talk to Eve Tushnet about sex, religion, and being the "freak of the week" in the New York Times.

Barack Obama shows you how to call in to radio shows to voice your support for Elena Kagan.

Complete with "calling tips":

Some hosts may challenge your views. Stay calm and firm....

And "discussion points":

Elena Kagan understands how the law affects ordinary Americans, giving a great deal of thought to legal issues which profoundly affect Americans’ everyday lives – including freedom of speech and government policy making.

If you say that, maybe the host will say: "What do you mean she's given a great deal of thought to government policy making? What does government policy making have to do with being a Supreme Court Justice and why should I care about the large amount of thought that's been given? Has she thought well and what does she think about law?" If that happens, stay calm and firm! And say what?

"[T]wentysomethings just don't care if their Supreme Court justices are black, white, Jewish, Protestant, gay, or straight."

"Every day someone under the age of 30 either sends me an e-mail or tweet or a Facebook post reminding me that those of us making a huge big fat media deal about the nominee's race, religion, sexual preferences or marital status are quickly becoming cultural dinosaurs."

Kagan: 41% favorable, 47% unfavorable.

Why? She's the President's pick, an apparently highly competent and amiable person, and she's not on record with much of anything specific. Why the hostility?

By comparison, the president’s first Supreme Court nominee, Sonia Sotomayor, maintained favorables around 50% through the first three surveys following her selection, with unfavorables falling to 40%.

Maybe it's just that Obama himself has gotten less popular.

"In the photographs of Kagan sitting and chatting in various Capitol Hill offices, she doesn't appear to ever cross her legs."

Robin Givhan, the WaPo fashion critic observes that the Supreme Court nomineee sits "with her legs ajar":

Her posture stands out because for so many women, when they sit, they cross. People tend to mimic each other's body language during a conversation, especially if they're trying to connect with one another. But even when Kagan sits across from Sen. Amy Klobuchar, who has her legs crossed at the knees, Kagan keeps both feet planted firmly on the ground. Her body language will not be bullied into conformity.

She does not cross her legs at the ankles either, the way so many older women do.

Yeah, we were taught, strictly, that a woman should cross her legs at the ankles and only at the ankles.

Instead, Kagan sits, in her sensible skirts, with her legs slightly apart, hands draped in her lap. 

Here's the class picture from my kindergarten, around 1957:



Looks like the girl at the far left has Supreme Court potential. And I don't.

***

I've displayed that picture before on the blog, back in 2006. From that post:

I think it's cute that they got nearly all the girls to cross our legs at the ankles, which was considered the only proper way for a female to cross her legs.

***

Does the position of Kagan's legs matter?
	Yes, but only to the extent that aesthetics and style matter.
	Yes, as a clue to how she thinks and feels and thus to how she will decide cases.
	No, the visual aspects of a person are trivia, at best.
	No. If leg position indicated judicial style, she'd pose the way that said whatever was useful.
pollcode.com free polls

Has Obama failed to nominate a strongly liberal Supreme Court Justice because of the insufficient supply of liberal law professors?

Recounting the history of Harvard's struggle with Critical Legal Studies in the 1980s and the "postradical" period that followed, lawprof David Fontana writes:

The stories of the postradical generation are not only of intellectual interest but also affect the future of American government. Obama has been criticized by many for not nominating enough theoretically ambitious and bold liberals to the federal courts. Part of the reason for that dynamic, however, has less to do with politics than with the supply of such theoretically ambitious liberals—particularly law professors.

Many of the more-radical jurisprudential movements from the earlier generations have succeeded in opening eyes to the flaws in the legal system, but beyond that have largely disappeared. The Old Left efforts to push courts to be more aggressively liberal floundered after years of courts dominated by Republican appointees. The New Left efforts by the critical-legal-studies movement and others floundered, in part because, like with the Old Left, their ideas were met with sustained resistance from the elite institutions of the legal system.

Spare me! There are plenty of strongly liberal and lefty lawprofs and if you want theoretical ambition you can find it. The reason these folks don't get nominated to the Supreme Court is crushingly obviously because they'd be soundly rejected by the American people and borked in the Senate.

The country has moved to the right, so there are fewer law professors who are truly liberals. 

Yeah, there's a little balance now. I can imagine what "truly liberal" means to Fontana. I think they're nearly all liberal from the standard that prevails among American voters, but that's not truly liberal.

Many of those on the left today are simply trying to maintain older decisions... Others on the left, who once might have aggressively pursued liberal legal ideas, are now increasingly writing about law from a more theoretical or quantitative, and therefore less practical, perspective—making their writing less related to the issues judges decide and making them less obviously candidates for future judgeships.

And some on the left who write more directly about cases and courts, like Tushnet or Dean Larry Kramer of Stanford Law School, and Dean Robert C. Post of Yale Law School, are now increasingly members of the "popular constitutionalism" movement, who believe that courts should be stripped of all or most of their decisional powers—hardly the prejudicial profile that one wants.

"Prejudicial"? I know what he meant to say but... what a hilarious word!

Anyway, yes, many brilliant liberal/lefty lawprofs have applied their minds to generating arguments for why courts shouldn't enforce rights, but I think the reason they have gone in that direction is that they have perceived that it is the most effective way to push back against the conservative and liberal-but-not-truly-liberal jurists who get appointed to the Supreme Court. The "popular constitutionalism" movement is further evidence that the American people have a pretty conservative view of what judges should do and how the Constitution should be interpreted. And that's why the nominees aren't "theoretically ambitious and bold liberals."

David Gregory and Chuck Schumer demagogue the Citizens United case on "Meet the Press" today.

If there's one thing you should know about Citizens United v. FEC, it's that it's not about corporate contributions to political candidates. It's about corporations engaging in their own political speech (and spending money in the process). Now, here's today's "Meet the Press" transcript. Chuck Schumer is in the middle of singing the praises of Elena Kagan.

MR. GREGORY:  ... What, what does she mean for the overall direction of the court? ... Is she a liberal or is she a moderate?

SEN. SCHUMER:  I--look, I think she's--she tends to be a moderate when you look at her writings.  But I think that's less important.  When the president called me and asked me what was the number one criteria [sic] for a nominee--this was before he chose Kagan--I said I think it should be somebody who will be in the majority of five rather than the minority of four; someone who'll have the--not only the intellect--and everyone says she's brilliant--but the force of personality, the practicality to try and create coalitions.  I think a lot of us, at least on the Democratic side, were shocked by the Citizens United case, for instance.  And...

MR. GREGORY:  Just remind people, this was about political contributions.

No, it wasn't!

SEN. SCHUMER:  This is the case that said unlimited corporate money could flow into our politics undisclosed in any way....

No, it didn't!

... and it's really--I mean, the First Amendment's important, but so is the sanctity of our political process, so that the average person has a say.  And I was shocked at this.  

And I am shocked at you and Gregory deliberately misleading viewers. Deliberately or ignorantly. I'm guessing deliberately. At least for Schumer. Gregory might be a dunce. I don't know.

Maybe a Kagan on the court could have persuaded a Justice Kennedy that the practical--you know, the abstract notion of First Amendment triumphs everything has a balance, and the balance is the practical effects of that. And my hope would be she would do it, and that's what I'm looking for.

What? I have this TiVo'd, so let me check. That is what he said, word for word. I think there should be another dash, after "triumphs," but it's still damned near incomprehensible. I'm guessing he meant: Justice Kennedy thinks the abstract notion of the First Amendment triumphs, but in fact, abstractions should always be balanced against real world practical effects, and if Kagan were on the Court she might persuade Kennedy to move away from abstractions and focus more on real-world effects.

That's something some people want to say about constitutional interpretation, and that's fine. Say it. But: 1. Say it clearly, and 2. Don't LIE about what the real world effects are.

It's the hotly anticipated Glenn Greenwald vs. Lawrence Lessig showdown!

The 2 have been fighting harshly in writing — see the "links mentioned" here — and now we can see them battle it out in real time:



ADDED: You can skip the first 9 minutes unless you want to hear: 1. 2 men murmur about civility or 2. Lessig's paper-shuffling that sounds like buildings being demolished.

The Nation: "Elena Kagan should be borked."

In the special Kagan meaning of "bork":

In what is by now an oft-quoted snippet from one of her law review articles, Supreme Court nominee Elena Kagan castigated the confirmation hearings of Justices Souter, Kennedy, Ginsburg and Breyer as a "vapid and hollow charade."...

What is less remarked upon is that in her article Kagan proposed a model for a more vigorous and candid confirmation hearing—that of Judge Robert Bork. The process worked in that instance, she argued, not because of the particular result but because the hearings "presented to the public a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee; that discussion at once educated the public and allowed it to determine whether the nominee would move the Court in the proper direction." In both popular and right-wing parlance, "borking" now means to vilify and defame a nominee in order to block his appointment, but Kagan's description is in fact a far more accurate account of what happened—senators rigorously probed and considered Bork's legal opinions and voted accordingly. So it is with this understanding that we propose, in the spirit of democratic deliberation of which she so eloquently wrote, that Elena Kagan should be borked.

But this kind of borking is impossible unless the nominee wants it. It doesn't matter what questions the Senators come up with or how pushy and repetitive they are about asking them, the "vapid and hollow charade" can be kept up by the nominee until the clock runs out. The only reason the Bork hearings proceeded the way they did was because Bork chose to engage in legal debate with the Senators. He obviously believed in his ability to explain his ideas in a superior fashion, but he wasn't quite as smart as he needed to be about how it all looked to the people watching it on television, and he gave his enemies the ammunition they needed to bring him down.

Since Bork, all the nominees have adopted the same self-protective stance that Kagan criticized in her article. What would motivate Kagan to do anything other than that? I have 3 thoughts.

1. Kagan wrote a law review article criticizing the vapid self-protective approach to the hearings. She has a little incentive to avoid hypocrisy. A little.

2. She might really care about the criticism she once penned and want to set a new example of how a nominee can be forthright and expressive without losing, like Bork.

3. Unlike the nominees who adopted the self-protective strategy to deprive the President's opponents of the ammunition to shoot them down, Kagan could be pushed by Democratic Senators. That's what The Nation wants to see. It will be interesting if Democrats try to extract assurances of liberalism from Kagan, but why would Kagan want to give them that. Whatever might work for her with them will work against her with others — and with the American people who are consuming tidbits on TV and on line. I, for one, will review every word of the transcripts looking for interesting things to highlight. It's risky to give out any good material, but I hope she does. I don't think she will.

Bottom line: Expect another vapid and hollow charade.

"In Kagan, it seems to me we have reached a new level of utter blankness."

Says Andrew Sullivan:

Her entire career has been about never taking a stand on anything of any substance - free coffee for students! - while networking in a way to neutralize any conceivable opposition. And she is walking back from her earlier demands for more clarity and transparency in Senate confirmation hearings. Josh notes that liberals are worried about an Obama Souter.

Souter was the old level of utter blankness.

I just don't believe that Obama is that prone to risk.

That should mean that Obama secretly knows what she's about and is hiding it from us. But that wouldn't make Kagan an "Obama Souter." Souter was appointed by a President — George H.W. Bush — who thought he was getting something quite different. Here's a New York Times article from the time of the Souter nomination (before his ascension to the Supreme Court):

John H. Sununu, the White House chief of staff, said today that he had assured President Bush that David H. Souter would uphold conservative values on the Supreme Court.... 

''I was looking for someone who would be a strict constructionist, consistent with basic conservative attitudes, and that's what I got,'' the chief of staff said in an interview. ''I was able to tell the President that I was sure he would do the same thing when he encountered Federal questions....

The chief of staff's comments were designed to advance the overall White House strategy of seeking to convince conservatives that Judge Souter was their kind of man, who could be trusted to vote ''right'' on the big issues, without getting him involved in fierce debates about abortion or flag burning or other contentious specifics.

In being unusually candid about the details in the selection process, Mr. Sununu was carrying out his role as Mr. Bush's primary liaison to the right wing of the Republican Party and to the ideological groups that support Mr. Bush but are nervous about the commitment to their issues.

Back to Sullivan:

I predict that if confirmed, [Elena Kagan is] much more likely to surprise on the left than on the right...

That would be Souterific.

"Elena Kagan's nomination couldn't come at a worse time for Arlen Specter."

"Unlike his fellow Democrats, he's been unable to fawn over President Obama's Supreme Court pick, or push Republicans to grant her swift confirmation. That's because, just last year, Specter voted against confirming Kagan as Solicitor General...when he was a member of the GOP."

And there's only 1 week left before the primary. His challenger Joe Sestak has closed in on Specter and is running this ad:



Ouch. I'm assuming ouch — from the perspective of Democratic primary voters. For me, when George W. Bush popped up, I felt... Oh! It doesn't matter what I felt. The point is GWB is the bogeyman for true-blue Democrats.

I'm in the NYT.

Here.

"Kagan is so Manhattan, Scalia is so Queens, Ginsburg is so Brooklyn and Sotomayor is so Bronx."

When Kagan is confirmed, there will be 4 Justices from New York City — but they're not all from the same place. Each is from a different borough, and that makes them, in fact, very different. Immense diversity.

“Professor Kagan, honestly I didn’t get to all of the reading for today’s class. Sadly, I think I need to pass on this one.”

Elie Mystal shares an old classroom transcript:

PROFESSOR KAGAN: Well, Mr. Mystal, did you manage to remember your casebook?
1L ELIE: Yes. But like I said, I didn’t …
PROFESSOR KAGAN: Do you think you could be bothered to OPEN your casebook?
1L ELIE: (I have a bad feeling about this.) Yes. Abso…
PROFESSOR KAGAN: Please turn to page [whatever]… Now read.
1L ELIE: (Reading silently.)
PROFESSOR KAGAN: ALOUD.
1L ELIE: (Channeling Nathan Jessup: I’m not an idiot, I don’t need to read aloud like I’m a five year old.) Umm … Okay. (Much reading aloud.)
PROFESSOR KAGAN: Now, can you explain to me what you just read?
1L ELIE: (I can’t even remember what I blathered.)
PROFESSOR KAGAN: Mr. Mystal, open to page [same page as before], and TRY AGAIN!

At that point I just kind of had a disassociative break. My mouth kept moving, but my mind went into some kind of fetal position. Please stop hitting me, Professor Kagan.

Kagan hated unprepared students, but she reserved her harshest ire for people who showed up to her class late. She’d essentially stop the class, literally — she’d stop talking in mid-sentence. Then she’d wait impatiently for the student to assume their seat. And then make some caustic remark about the importance of timeliness.

That takes guts. I salute her! I wish I had the nerve to do things like that. I don't even like to call on people. I either rely on volunteers or call on students and add "sorry to bother you" or something like that (which I mean humorously, but only semi-humorously). And yet Kagan is the one who acquired  the reputation for the high social IQ. Awesome!

David Brooks calls Elena Kagan an "Organization Kid" and — developing the evidence — happens to reveal what the issue is.

David Brooks, in Brooksian fashion, has a pet sociological category that will be the theme of his column:

About a decade ago, one began to notice a profusion of Organization Kids at elite college campuses. These were bright students who had been formed by the meritocratic system placed in front of them. They had great grades, perfect teacher recommendations, broad extracurricular interests, admirable self-confidence and winning personalities.

If they had any flaw, it was that they often had a professional and strategic attitude toward life. They were not intellectual risk-takers. They regarded professors as bosses to be pleased rather than authorities to be challenged. As one admissions director told me at the time, they were prudential rather than poetic.

Does Kagan fit that description (and, if she does, is that bad)?

[She] is apparently prudential, deliberate and cautious.

There's that word "prudential" again. It's a very common word used in talking about judges, by the way. It corresponds to judicial restraint and the avoidance of things that might be called activism.

She does not seem to be one who leaps into a fray when the consequences might be unpredictable. “She was one of the most strategic people I’ve ever met, and that’s true across lots of aspects of her life,” John Palfrey, a Harvard law professor, told The Times. “She is very effective at playing her cards in every setting I’ve seen.”

This is a fine quality for a judge!

Tom Goldstein, the publisher of the highly influential SCOTUSblog, has described Kagan as “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.”

Again, isn't that just what we want — a judge who doesn't inject personal convictions into legal analysis? Well, some people want judges who have the right personal preferences and appropriate the power of their position to put them into action. And, realistically, someone who wanted to be that kind of judge would probably need to be extraordinarily — almost artistically — careful not to let it show until they'd acquired a lifetime appointment to the Supreme Court.

So, there's the Kagan puzzle. I don't think it's so much whether she fits this sociological category — Organization Kid — that fascinates Brooks. I think it's whether deep down she's judicious or political: Is she really someone who works through legal problems without personal preferences? Or is she a big politico — who, once she gets into that robe, will wreak her will on us?

"So Kagan... is a successful scholar whose interests have extended beyond scholarship, to government service and to educational institution-building."

Eugene Volokh defends Kagan as a legal scholar.

The [First Amendment] articles attack difficult and important problems (Private Speech, Public Purpose, for instance, tries to come up with a broad theory to explain much of free speech law). They seriously but calmly criticize the arguments on both sides, and give both sides credit where credit is due. For instance, I particularly liked Kagan’s treatment of both the Scalia R.A.V. v. City of St. Paul majority and the Stevens concurrence, in her Changing Faces of First Amendment Neutrality article.

As importantly, the articles go behind glib generalizations and formalistic distinctions and deal with the actual reality on the ground, such as the actual likely effects of speech restrictions, and of First Amendment doctrine. (I’m a big believer in formalism in the sense of a preference for rules over standards; but I share many people’s disapproval of formalistic arguments in the fashioning of rules, when those arguments ignore real-world distinctions and effects, and obscure the important policy questions rather than revealing them.) This is legal scholarship as it should be, and as it too rarely is.

And what kind of free speech opinions can we expect Justice Kagan to write:

My guess is that the likeliest bet would be to say that a Justice Kagan would be roughly where Justice Ginsburg is — generally pretty speech-protective, but probably with some exceptions in those areas where the liberal Justices on the Court have taken a more speech-restrictive view, chiefly expensive speech related to campaigns and religious speech in generally available government subsidies.

Emily Bazelon talks with me on Bloggingheads — about the Kagan nomination.

The topics the bhtv editors identify are:

The enigma of Elena Kagan
Will she be able to win over the court’s conservatives?
The Supreme Court as “women’s work”
Six Catholics, three Jews, zero Protestants
Ann defends Kagan on military recruiting
Predictions for the confirmation hearings

But there's much more. Try it. Only 20 minutes.