Second Day: Kagan Defends Justice Marshall

With  Justice Thurgood Marshall and Chief Justice John Roberts Jr. “on trial” at Elena Kagan’s confirmation hearings, as one commentator portrayed it, President Obama’s nominee defended Justice Marshall today.

At the outset of the second day of her hearings, Kagan “defended her view of Marshall, for whom she clerked in 1988, telling the committee that he played a major role in making the principle of equal protection under the law a reality for minorities,” according to a Washington Post article.

Kagan made her remarks in the context of partisan clashing Monday “over judicial restraint and the proper reach of government,” as the Post characterized the first day’s statements.

Writing in Slate, Dahlia Lithwick focused on a largely partisan slugfest Monday where “Democrats really, really hate John Roberts” and Republicans accused Kagan of having clerked for “a well-known liberal activist judge.” Lithwick saw a theme arising from the political pounding:

“[T]he reason Marshall and Roberts are the ones on trial here is…quite plain: Republicans fear that, in this confirmation hearing, Kagan is pretending to be just what Roberts pledged to be (temperate, centrist, and humble), but that once she takes the bench, she will become Marshall (legendary, visionary, liberal).”

Among Democrats criticizing Justice Roberts was Sen. Sheldon Whitehouse of Rhode Island, who took issue with the justice’s characterization at his own hearing of the role of a judge as impartial umpire. “For all the talk of ‘umpires’ and ‘balls and strikes’ at the Supreme Court, the strike zone for corporations gets better every day,” Whitehouse said. (more…)

Kagan Pledges Judicial 'Modesty' if Confirmed

Supreme Court nominee Elena Kagan vowed Monday that if confirmed, she would defer properly to Congress and strive to  “consider every case impartially, modestly, with commitment to principle and in accordance with law.”

In prepared remarks for her confirmation hearing, which got under way at mid-day, the former Harvard Law School dean said the Supreme Court must ensure the government does not violate individuals’ rights. “But the court must also recognize the limits on itself and respect the choices made by the American people,” she said, according to the Associated Press.

Kagan visited President Obama in the Oval Office before she arrived at Capitol Hill. After he took office, Obama selected her as the nation’s first female solicitor general.

Kagan was to deliver her own opening statement to the Senate Judiciary Committee later today. Members of the committee opened the proceedings with debate over both her qualifications and the extent to which she should discuss her thinking on specific legal disputes. (more…)

When Will Gitmo Be Closed?

In the face of significant political opposition and other pressing priorities, President Obama’s administration has “sidelined efforts to close the Guantanamo prison,” according to a New York Times article.

That means that closing of the controversial facility and fulfilling Obama’s pledge would be unlikely before he completes his term, in 2013, the newspaper added.

The Obama administration announced last year a plan to transfer some Guantanamo Bay terror suspects to a prison in northwestern Illinois, and to hold U.S. military commission trials there. It sparked criticism from multiple flanks (see Gavel Grab), and his administration has not done a lot to overcome the political barriers.

Adding to the challenge has been a shift in public opinion, perhaps fueled by attempted terrorist attacks on an airliner Christmas Day and on Times Square in May.A slim majority backed closing Guantanamo when Obama was inaugurated, but in March of this year, 60 percent favored keeping the detention facility open.

Expanding upon the article, Glenn Greenwald contended in a Slate commentary, “The reality is that closing Guantanamo has been discarded because of the Obama administration’s general embrace of the Bush/Cheney Terrorism template; if you are going to retain a system of due-process-free indefinite detentions, then closing Guantanamo makes little sense.”

Difficult Road Seen for Campaign-Spending Disclosure

A campaign-spending disclosure bill recently passed by the House faces rocky going, according to an analysis in The National Journal.

Veteran reporter Eliza Newlin Carney wrote of the DISCLOSE Act, as it is called:

“The bill, which sets out to shed light on corporate and interest group campaign spending, faces an uphill battle in the Senate. A constitutional challenge would be inevitable. And even if the legislation is enacted and upheld, it will do little to fundamentally shift the balance away from private money in American elections.”

You can read about the bill’s history, and its drafting by Democratic leaders in response to the Supreme Court’s Citizens United decision, in Gavel Grab. President Obama has continued to champion the legislation, but the clock is ticking, and The Hill newspaper reported that chances of its applying to the fall elections are dwindling.

Editorial reaction continued to be divided. In Wisconsin, The Cap Times embraced the bill as “a necessary response to corporate takeover of elections.” But in Nevada, the Las Vegas Review-Journal derided it as unconstitutional called on foes to work hard against its passage.

Justice Stevens, Retiring, Thanks Colleagues

Justice John Paul Stevens, whose retirement will begin tomorrow, extended thanks to his colleagues in a letter he read from the bench today.

He thanked them for  the “warm and enduring friendship” enjoyed with the justices and their spouses. He said, “It has been an honor and a privilege to share custodial responsibility for a great institution with the eight of you and with ten of your predecessors.”

According to The Blog of Legal Times, “Stevens’ voice seemed to crack, but by the end of the statement he was smiling.”

Chief Justice John Roberts Jr., reading a farewell letter from the court, saluted Justice Stevens’ “resolute commitment to justice.”

You can read a Justice at Stake statement, issued upon Justice Stevens’ announcement of his retirement, by clicking here, and you can read more about him from Gavel Grab.

High Court Expands Second Amendment Rights

The Constitutional protection of an individual’s right to bear arms under the Second Amendment extends past federal measures to state and local laws, the Supreme Court ruled in a 5-4 decision Monday.

The decision appears to void a Chicago ordinance barring residents from owning handguns, according to a Los Angeles Times article.

The court struck down two years ago parts of a gun control law in the District of Columbia. That decision involved only federal law, and the District is a federal enclave. Prior Supreme Court decisions going back to the 19th Century stated that the Second Amendment does not apply to states, and the court did not tackle in 2008 the validity of those precedents (see Gavel Grab).

For gun rights advocates, today’s ruling came as “an enormous symbolic victory…but its short-term practical impact is unclear,” the New York Times reported. As in the 2008 decision, the newspaper said, “the justices left for another day the question of just what kinds of gun control laws can be reconciled with Second Amendment protection. The majority said only that the right to keep handguns for self-protection at home is constitutionally protected.”

Writing the majority opinion,  Justice Samuel A. Alito Jr. said that the Second Amendment right “applies equally to the federal government and the states,” an Associated Press article stated.

The ruling was issued at the court’s final sitting of the term, when the court was touched with sadness, according to a Fox News report. Chief Justice John Roberts Jr. announced the passing (see Gavel Grab) of Martin Ginsburg, the husband of Justice Ruth Bader Ginsburg, and read a letter that honored retiring Justice John Paul Stevens. (more…)

Kagan Hearings: Political Battles Behind the Drama

Politics, of course, is the defining backdrop for the confirmation hearings on Supreme Court nominee Elena Kagan, which begin today.  And more than one political struggle will unfold.

According to a New York Times article, the central drama may actually feature President Obama and Chief Justice John Roberts Jr.:

“With an eye on the midterm elections, Democrats will use Ms. Kagan’s hearings, which begin Monday, to put the Roberts court on trial by painting it as beholden to corporate America.

“Republicans will put Mr. Obama on trial over what they view as his Big Government agenda, and will raise questions about whether Ms. Kagan, his solicitor general and former dean of Harvard Law School, is independent enough to keep that agenda in check.”

The hearings may boil down to a fight over standards for judging defined by Obama and Roberts.

Ed Whelan, president of the Ethics and Public Policy Center called it “the battle between the empathy standard and the umpire analogy.” Roberts stated at his own hearing,  “It’s my job to call balls and strikes, not to pitch or bat.” But Obama, in nominating Kagan, said she  understands the law “as it affects the lives of ordinary people.” (more…)

Kagan Hearings: Check Here for Updates

Senate hearings begin Monday for Supreme Court nominee Elena Kagan. You can get all-day Justice at Stake updates on Twitter, as well as periodic reports on Gavel Grab, Justice at Stake’s daily online journal.

If you’re new to Twitter, this is an easy way to get brief hearing updates (all 140 characters or less). Just click on Justice at Stake’s Twitter page. You can see new comments as they’re posted, without having to create your own account. If you’re a Twitter veteran, you also can receive text message “tweets” on your cell phone.

'Essential' for Senate to Pass Disclosure Bill Now

“It is absolutely essential” that the Senate move quickly and pass a campaign-spending disclosure bill just approved by the House, in order to enact new law before November’s elections, a New York Times editorial asserts.

The bill was drafted to blunt the impact of the Supreme Court’s Citizens United decision, and it passed narrowly after Democratic leaders added to existing controversy over it by carving an exemption for the National Rifle Association (see Gavel Grab).

“The measure would hardly cure all the damage of the court decision, and it is flawed with exemptions for major special interest groups” the editorial said. “But it is the best that voters can hope for to help them fathom a likely boom in attack ads and campaign propaganda.”

To learn more about Citizens United, you can read a statement from Justice at Stake by clicking here, or click here to see the JAS amicus brief in the case; you can visit Gavel Grab to learn how state legislators and executive branch officials have responded.