Elena Kagan

  • May 12, 2010
    Guest Post

    By Nicholas Stephanopoulos. Stephanopoulos is an attorney in the Washington, D.C. office of Jenner & Block, where he specializes in election law.
    One of the many areas in which Elena Kagan has left next to no paper trail is election law. In particular, Kagan has expressed no views - at least, not in writing - on redistricting, gerrymandering, or the Voting Rights Act. These are all important topics. And they are especially vital now, as the Census nears completion and states prepare frantically to redraw all their districts in 2011. Election law blockbusters will very soon be on the Supreme Court's docket.

    The Justice that Kagan has been nominated to replace, John Paul Stevens, has a unique perspective on redistricting. In his view - never endorsed by a majority of the Court - it is unconstitutional for a legislature to draw district lines with the primary purpose of benefiting (or harming) any political party or incumbent. As he put it in his 2004 dissent in Vieth v. Jubelirer, "purpose [is] the ultimate inquiry," and "when partisanship is the legislature's sole motivation," a district map must be struck down.

    Justice Stevens has recognized that legislative purpose is often very difficult for courts to determine. In his 1983 concurrence in Karcher v. Daggett, he argued that courts should therefore focus not on the "subjective intent of local decisionmakers," but rather on "objective indicia of irregularity." These objective indicia include the "packing" or "cracking" of members of a political group, "dramatically irregular [district] shapes," and "[e]xtensive deviation from established political boundaries." If courts find enough of these clues, they can conclude that the legislature's motivation was overly partisan.

    How does Justice Stevens' position on redistricting relate to Elena Kagan? The answer is that in one of her best-known academic articles, she embraced exactly the same approach - only with regard to free speech rather than electoral districts. In "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine," Kagan contended that the underlying theme of the Supreme Court's First Amendment decisions is that actions taken due to "improper governmental motives" are unconstitutional. Perhaps the quintessential illicit motive is "restrict[ing] speech because the ideas espoused threaten officials' own self-interest - more particularly, their tenure in office."

  • May 11, 2010
    Guest Post

    By Jeffrey D. Clements, Principal, Clements Law Office, LLC. Mr. Clements filed an amicus brief in the Citizens United case on behalf of several democracy advocacy organizations, and serves as general counsel of Free Speech for People. He is also author of the ACS Issue Brief "Beyond Citizens United v. FEC: Re-Examining Corporate Rights."

    The Virginia tax-exempt corporation calling itself Citizens United has come out swinging against President Obama's nomination of Solicitor General Elena Kagan to be an Associate Justice of the Supreme Court. The organization's president, David Bossie, takes umbrage with President Obama's statement that Ms. Kagan fights for ordinary citizens as shown by her argument "in the Citizens United case, [where] she defended bipartisan campaign finance reform against special interests seeking to spend unlimited money to influence our elections."

    Citizens United, of course, is responsible for the Supreme Court's now notorious 5-4 holding in Citizens United v. Federal Elections Commission that created, for the first time in American history, "corporate speech" rights for all corporations that are equivalent to the people's speech rights for purposes of expenditures in American campaigns and elections.

  • May 11, 2010
    Guest Post

    By Amanda Cohen Leiter, Associate Professor, Columbus School of Law, The Catholic University of America
    Many others have extolled Justice John Paul Stevens and described the large shoes that Elena Kagan will have to fill if confirmed. I will not add to their comments here. (I note, though, that few of us are as qualified to evaluate Kagan's aptitude for the task -- or her progressive credentials, for that matter -- as the man who appointed her, who has more than a passing familiarity with constitutional law and has also had occasion to question Kagan closely and privately on her judicial philosophy and her beliefs on a range of matters.)

    I write instead to highlight a little-heralded but enormously important consequence of the Founders' idea of requesting the Senate's advice and consent on Supreme Court nominees: For a few days around each nomination, a quiet but extremely powerful branch of government, scrutinized in Washington but largely disregarded outside the Beltway, finds itself in the limelight, and the public is given the opportunity to consider both the role that branch plays in our lives and the characteristics we would like to see in those who serve it.

    For those short days, we all take the time to ask ourselves whether a Justice should have prior judicial experience; whether she should be empathetic to the parties before the court or impartial and umpire-like; whether she should be a scholar or a practitioner; whether, in this particular case, her skills as a manager and a resolver of conflicts (being a successful Dean of a notoriously fractious law school necessarily called upon those skills) will help her bridge gaps and find points of agreement on the Court; and whether her gender, age, race, and religion should count for her, or against her, or not at all. No matter how we each answer those questions, we should be honored and grateful that our Constitution invites us all, albeit indirectly, to have thoughts on these issues. It is that invitation, and our participation in the resulting discussions and debates, that give the Court its legitimacy, and lend truth to Kagan's observation, on accepting her nomination, that "law ... is the foundation of our democracy."

  • May 10, 2010
    Guest Post

    By Rick Hasen, William H. Hannon Distinguished Professor of Law, Loyola Law School - Los Angeles & Publisher, Election Law Blog

    Last night, as word leaked out that the President was set to nominate Solicitor General Elena Kagan to the Supreme Court, I put up a post on my Election Law Blog noting that we know virtually nothing about SG Kagan's views on election law issues such as campaign financing, voting rights, redistricting issues, voter identification, and other important issues. I said, however, that just because the SG is likely to be generally liberal on issues related to election law (given that she was nominated by a Democratic president and served in two Democratic administrations), that did not necessarily translate into support for reasonable campaign finance regulation, such as the limits on corporate campaign spending in candidate elections, which the Supreme Court struck down in the recent Citizens United case.

    I pointed to Dean Kathleen Sullivan as an example of a leading liberal constitutional law scholar who has written extensively against the constitutionality of campaign finance limits. (To that list, I might add my friend Bob Bauer, who is a staunch Democrat-and current White House counsel charged with shepherding the Kagan nomination through the Senate. He is a longstanding opponent of many campaign finance regulations.)

  • May 10, 2010
    In commentary for Talking Points Memo, Andrew J. Pincus, a longtime Supreme Court litigator, partner at Mayor Brown and a member of the ACS Board of Directors, says Kagan is a smart choice to replace retiring Justice John Paul Stevens.

    Pincus says Kagan "meets all the criteria for a Supreme Court Justice. A distinguished career - principally in legal academia, but also service in both Congress and the White House, and most recently as President Obama's Solicitor General, representing the United States before the Supreme Court. A brilliant legal mind capable of holding her own with the other Members of the Court on the technicalities of legal issues as well as the larger questions of constitutional interpretation."

    In elaborating on why Kagan is a good selection, Pincus writes:

    At 50, Kagan is the youngest of the finalists. A Justice's influence evolves over decades: at the beginning of Justice Stevens' 35-year tenure he was something of a jurisprudential loner, often staking out individualistic views on many constitutional issues. It was only later, as he gained seniority, that he used his experience, power of persuasion, and status as the senior Justice to lead the Court's progressive wing.

    Republicans have long recognized this phenomenon: Chief Justice Roberts also was 50 when he was nominated to the Court; Justice Alito was 56. Indeed progressives have criticized President Obama's nominations to the courts of appeals of many individuals in their late 50s, who are unlikely to be able to serve as a ‘farm team' for future Democratic Supreme Court appointments.

    Third, Kagan's ‘people skills.' Much has been made of Justice Stevens' role in reaching out to Justice Kennedy and other Members of the Court to cobble together the occasional liberal majority on this conservative-leaning Court. Kagan was very successful in dealing fairly with both liberals and conservatives on the Harvard Law School faculty, bringing a measure of peace to an institution that had seen pitched warfare for years.

    For more information on the nomination, see the ACS Web site here.