OPINION: Kagan To Bring A 'Center' Court

Elena Kagan was sworn in, and now we have a court that is a bit more to the center.

Kagan is no Justice John Paul Stevens, although my hope is that she will grow into a more liberal justice.
The hearings were as expected, and so was the vote with the more centrist Republicans voting with the Democrats. It went as planned: no huge paper trail, although some on the Right tried to make hay out of some abortion memos she wrote while in the White House counsel’s office.

As Washington D.C. correspondent Victoria Jones said, there was no “Macaca” moment to the Elena Kagan hearings. (Macaca refers to a racial slur by George Allen in his 2006 Senate campaign). What we heard at the hearings was someone who has a very detailed knowledge of the law and who was well prepared from her weeks of practice “murder boards” that took place to prepare her for the grilling.

The hearings and the objections from some of the Republicans were Washington doing what Washington does best: political theater.

During the hearings, Sen. Patrick Leahy, an amateur photographer, was taking pictures. The professional photographers where taking pictures of him.

Kagan was able to breeze past her undergraduate thesis in which she said that justices wield great power for social and economic change when asked by Sen. Amy Klobuchar, D-Minn. Clearly, Kagan knew it was coming and was able to toss the ball out of the park with ease.

She deftly handled the gay marriage issue by saying that is was probably going to come before the court. When Sen. Arlen Specter – with nothing to lose since he already lost – asked her to talk about a current case, she responded that it was something under her as solicitor general. Specter said she was going to be a justice, she responded that she doesn’t count her chickens.

Without a “Macaca” moment, pretty much every senator went into this knowing exactly how they were going to vote. The nominees are now carefully coached on how not to answer questions. It is exasperating to sit and listen to it.

When Sen. Herbert Kohl, D-Wis., asked her about who she admired on the court and got a non-answer, he shook his head and said “Oh my oh, my oh.” A conservative constitutional lawyer said to me that the carping about her was a way of raising money from the base for the 2012 elections while at the same time most of the GOP senators were pretty happy that even though she self-described her political viewpoints as “progressive,” her actual actions and memos were not.

The handouts that were given to the press by each side reflected the complete political nature of this constitutionally mandated “advise and consent” role. There were letters from law school deans praising her for the compromise reached on campus military recruiters.

The Republicans, knowing that the base hates gays in the military, came back with their own set of papers that they hoped would show how anti-military she is. They expected to stir up the base and get more money.

It didn’t work.

The only reason to have these hearings is to make sure that the nominee is not a complete idiot or lunatic and won’t lose their cool. It also is the only chance that the public has to see and feel what a future justice is like. Other than that, it is scripted and a waste of time. The votes were set, and the only role of any future justice is make sure they don’t say anything that is going to nix the nomination.

This charade of hearings will most likely happen again quite soon. Justice Ginsburg had a second cancer operation in 2009, and three other justices are in their ’70s. It will happen again exactly the same way. A president will appoint someone who is political and doesn’t have too long of a paper trail. The candidate will not say anything controversial.

What a waste of time and energy. Too bad we can’t do better. The only thing better staged is a real-estate open house.

U.S. Supreme Court Hears Details Of U.S. Government Land Swap

by Julianne LaJeunesse, University of New Mexico-Talk Radio News Service

The U.S. Supreme Court justices will decide on the legitimacy of a now-covered cross in the Mojave desert after hearing arguments Wednesday that claimed government land swapping does not translate to private ownership.

The case of Salazar v. Buono originated in 1999, with Frank Buono, a former park service official. Buono wrote to the National Park Service requesting the erection of a Buddhist shrine next to a cross in Sunrise Rock, a section of federal land in California’s Mojave Desert. The cross was built in 1934 by the Veterans of Foreign Wars, and in 2001 and 2002, the cross became a national war memorial that Congress said could not be dismantled using federal money.

In 2004, the Department of Defense swapped the land with the VFW in exchange for five acres elsewhere on the preserve. The question for the Supreme Court justices is now whether the memorial is on federal land.

If the Supreme Court agrees with the Court of Appeals for the Ninth Circuit, which affirmed the district court’s decision, the cross will have to be removed.

Justice Ruth Ginsberg offered a hypothetical solution for the government, suggesting the government could remove the cross, then sell the land back to the VFW.

“Then we are talking about something that is rather formal rather than substantial,” Justice Ginsberg said. “If all the government would have to do is say, 'Congress, you didn't get it right. You should have just made the land swap.' And then the government would take down the cross in compliance with the injunction, and then it goes right back the next day.”

Buono's lawyer, managing attorney for southern California's ACLU Peter Eliasberg, added to the argument that a cross, as a national war memorial, is not a proper reflection of veterans who are not Christian.

As far as the contents of the national war memorial, Justice Ruth Ginsburg asked the Department of Justice's General Solicitor Elena Kagan if the memorial could be changed by the VFW. Kagan said yes, at the discretion of the VFW.

The U.S. Supreme Court is expected to deliver a decision in following months.

Legal Experts Say Supreme Court Decision Should Not Affect Sotomayor Hearing

By Learned Foote- Talk Radio News Service

A panel of legal experts argued on Monday that the 5-4 decision of the Supreme Court in Ricci v. DeStefano should not affect the confirmation of Supreme Court nominee Sonia Sotomayor. The Center for American Progress and the American Constitution Society hosted the panel.

The Supreme Court found that the city of New Haven did not have sufficient grounds to throw out the results of a test designed to specify officers for promotion, even though black and Hispanic firefighters fared relatively poorly on the test. The opinion struck down a ruling issued by the district court and upheld by the 2nd Circuit Court of Appeals, upon which Sotomayor serves. Four justices, including Stevens, Breyer, and Souter, signed a dissent written by Justice Ginsburg.

Tom Goldstein of Akin Gump Strauss Hauer & Feld, founder of the popular SCOTUSblog, acknowledged that the majority opinion interpreted the law differently than Sonia Sotomayor had. He quoted Justice Kennedy, however, who had said that the law under consideration was unclear. Goldstein also noted that Ginsburg’s dissent said that Sotomayor followed precedent set by the 2nd Circuit.

Goldstein said that the majority opinion indicated an unwillingness to engage with the political process surrounding Sotomayor’s confirmation. He said the opinion “seemed to go out of its way to avoid openly criticizing the second circuit panel on which Judge Sotomayor sat, rather than sort of taking the Court of Appeals openly to task.”

Kevin Russell of Howe & Russell pointed out that Justice Souter—whom Sotomayor could potentially replace on the Supreme Court—signed onto the dissent. He said that the four dissenting justices “thought that Judge Sotomayor’s opinion was correct in concluding that this is not the kind of decision that requires a special justification, it’s not the equivalent of intentional racial discrimination, and that New Haven had substantial leeway to throw the results of these tests out based on the evidence that it had before it.”

Hillary critics fight campaign finance rules

By Candyce Torres, University of New Mexico-Talk Radio News Service. Today the U.S. Supreme Court heard oral arguments in Citizens United v. Federal Election Commission. A corporation produced a film documentary about Hillary Clinton. The corporation wanted to show the documentary in theaters and make it available on video-on-demand cable TV services during the presidential primary. It also wanted to advertise it on television. The Bipartisan Campaign Reform Act (BCRA), also known as McCain-Feingold, prohibits corporate-funded electioneering communications from being aired within a certain time frame before an election and requires disclosure of the sources of funding. The question before the court was whether these limits and disclosure rules are unconstitutional as applied in this case. All Justices struggled with drawing a distinction between 60-second campaign ads normally aired on TV and the 90-minute documentary. Justice Ginsburg expressed concern regarding the content of the video because it displayed things worth remembering which would cause one to form negative opinions about a candidate before voting, just as all campaign advertisement do. Justice Kennedy also stated that if the Court found the regulation of this film unconstitutional that this whole statute would then fall. He argued that a more subtle message could have been just as effective as a 90 minute film. Justice Ginsburg noted that this film had been previously compared to Fahrenheit 9/11, but the difference is that Michael Moore’s film was not financed by corporate funds. A decision in the case will likely be delivered in May.