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lofter1
May 10th, 2010, 02:05 PM
Obama Chooses Kagan, Scholar but Not Judge, for Court Seat

NY TIMES (http://www.nytimes.com/2010/05/11/us/politics/11court.html?hp)
By PETER BAKER and JEFF ZELENY
May 10, 2010

WASHINGTON — President Obama introduced Solicitor General Elena Kagan (http://topics.nytimes.com/top/reference/timestopics/people/k/kagan_elena/index.html?inline=nyt-per) on Monday as his choice to become the nation’s 112th justice of the Supreme Court, hailing her as a “one of the nation’s foremost legal minds,” as he girded for a battle over whether it takes a judge to serve on the court.

At a ceremony with her at his side in the East Room of the White House, Mr. Obama called Ms. Kagan, the first woman to serve as solicitor general and as dean of the Harvard Law School, a “trailblazing leader” and “consensus builder” known for “her openness to a wide range of viewpoints.”

“She believes, as I do, that exposure to a broad array of perspectives is the foundation not just for a sound legal education but of a successful life in the law,” said the president, who was also joined by Vice President Joseph R. Biden Jr. He emphasized that Ms. Kagan grasps the law’s tangible impact: “That understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people, has animated every step of Elena’s career,” he said.

With a beaming smile, Ms. Kagan said she was proud to be chosen to succeed Justice John Paul Stevens, the leader of the liberal justices on the court, who is retiring after 35 years. She said that the court serves the country “by upholding the rule of law and by enabling all Americans, regardless of their background or their beliefs, to get a fair hearing and an equal chance at justice.”

Her selection immediately touched off a debate about whether her résumé as an academic, a government official and, for one year, the federal government’s chief advocate before the Supreme Court qualifies her to join it. Although many justices through history have joined the court with no prior service as a judge, Ms. Kagan would be the first in nearly four decades.

That lack of time on the bench may both help and hurt her confirmation prospects, creating an opening for critics to question whether she is truly qualified while denying them a lengthy judicial paper trail filled with ammunition for attacks. If she is confirmed, she would, at 50, be the youngest justice and the third woman on the current court.

Perhaps because she has not been a judge, suspicions of her have surfaced on both sides of the ideological divide. Some liberals dislike her support for strong executive power and her efforts to reach out to conservatives while she was running the law school. Activists on the right have attacked her for briefly barring military recruiters from a campus facility because the ban on openly gay men and lesbians serving in the military violated the school’s anti-discrimination policy.

“In her disdain for the military, Elena Kagan considers her own views and opinions as more important than obeying the law and equipping the country with the best fighting force in the world,” said Penny Nance, chief executive of Concerned Women for America, a conservative activist group. “We need justices who put national security over the feelings or demands of special interest groups.”

Other critics said Mr. Obama chose her to be a reliable vote to defend his legislative program if elements of it are challenged before the high court. “Obama wants to pack the court with reliable liberal votes to rubber-stamp an agenda that he knows the American people would not accept,” said Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, another conservative group. “What better way than to appoint a loyalist from his own Department of Justice with a thin public record to advance his leftist legacy through the court.”

Republican senators, who will actually consider the nomination, were more restrained in their initial reactions, promising a fair and respectful hearing while promising to ask tough questions. Democratic senators, on the other hand, rushed out effusive statements of praise, and liberal activist groups publicly rallied behind her despite their reservations.

While critics questioned her judicial inexperience, Senator Patrick J. Leahy of Vermont, the chairman of the Judiciary Committee, called it an asset. “Her historic accomplishments and the way she has conducted herself in these positions has earned her a place at the top of the legal profession,” Mr. Leahy said. “Elena Kagan’s nomination will bring to the Supreme Court a diversity of experience missing since Justice O’Connor retired in 2006,” meaning Sandra Day O’Connor.

The White House made clear that it plans to push back aggressively against the criticism of the military recruitment ban. “The suggestion I’ve seen in some of the attacks on Elena that she is somehow anti-military is ridiculous and absurd,” said Ronald A. Klain, Mr. Biden’s chief of staff and a leading figure on the confirmation team.

Ms. Kagam, a New Yorker who grew up in Manhattan, earned degrees from Princeton, Oxford and Harvard Law School, worked briefly in private practice, clerked for Justice Thurgood Marshall, served as a Senate staff member and worked as a White House lawyer and domestic policy aide under President Bill Clinton. She was nominated for an appeals court judgeship in 1999, but the Senate never voted on her nomination.

If the Senate confirms Ms. Kagan, who is Jewish, the Supreme Court would for the first time have no Protestant members: there would be six justices who are Catholic and three who are Jewish. All nine would have studied law at Harvard or Yale.

Replacing Justice Stevens with Ms. Kagan presumably would not alter the broad ideological balance on the court, but her relative youth means that she could have an influence on the court for decades to come, underscoring the stakes involved.

In making his second nomination in as many years, Mr. Obama was not looking for a liberal firebrand as much as a persuasive leader who could attract the swing vote of Justice Anthony M. Kennedy and counter what the president sees as the rightward direction of the court under Chief Justice John G. Roberts Jr. Particularly since the Citizens United decision invalidating on free speech grounds the restrictions on corporate spending in elections, Mr. Obama has publicly criticized the court, even during his State of the Union address with justices in the audience.

As he presses an ambitious agenda expanding the reach of government, Mr. Obama has come to worry that a conservative Supreme Court could become an obstacle down the road, aides said. It is conceivable that the Roberts court could eventually hear challenges to aspects of Mr. Obama’s health care program or to other policies like restrictions on carbon emissions and counterterrorism practices.

Critics have been pre-emptively attacking her in the days leading up to the president’s announcement. Paul Campos, a law professor at the University of Colorado, Boulder, writing on The Daily Beast, compared her to Harriet E. Miers, whose nomination by President George W. Bush collapsed amid an uprising among conservatives who considered her unqualified and not demonstrably committed to their judicial philosophy.

M. Edward Whelan III, president of the Ethics and Public Policy Center in Washington, wrote on National Review’s Web site that even Ms. Kagan’s nonjudicial experience was inadequate. “Kagan may well have less experience relevant to the work of being a justice than any entering justice in decades,” Mr. Whelan wrote.

Ms. Kagan defended her experience during confirmation hearings as solicitor general last year. “I bring up a lifetime of learning and study of the law, and particularly of the constitutional and administrative law issues that form the core of the court’s docket,” she testified. “I think I bring up some of the communications skills that has made me — I’m just going to say it — a famously excellent teacher.” ...

Copyright 2010 The New York Times Company

FULL ARTICLE (http://www.nytimes.com/2010/05/11/us/politics/11court.html?hp)

Ninjahedge
May 10th, 2010, 02:15 PM
So long as someone is being criticized by opposing groups for DIFFERENT THINGS, I think she will make a good candidate.

It is only when opposing sides agree on why someone is not right that you have to worry.

lofter1
May 11th, 2010, 12:25 PM
Elena Kagan, the Supreme Court, and a Lament for American Protestantism

BeliefNet (http://blog.beliefnet.com/christianityfortherestofus/2010/05/elena-kagan-the-supreme-court-and-a-lament-for-american-protestantism.html)
Monday May 10, 2010

President Obama has picked Elena Kagan, former dean of Harvard Law School and Solicitor General, to fill the next vacancy on the Supreme Court. Much will be said of Ms. Kagan over the coming weeks--praise and criticism of all sorts. But little will be in a form of lament, and that's what I'd like to offer here. A lament for the passing of American Protestantism.

Ms. Kagan is Jewish. That means there will be six Roman Catholics and three Jews on the Supreme Court in a country that was once the largest Protestant nation in the world. These days, of course, the United States may still have the largest number of Protestants but the percentage of the population that is Protestant has slipped to a mere 50%, meaning that sometime in the near future, America will be a nation with a religious plurality and not a majority.

I'm not lamenting the loss of representation; I don't think that Supreme Court picks should be ruled by affirmative action. Rather, the primary qualification should be that the person knows the law, understands the law, upholds the law, and possesses a certain sort of empathy for the way that the law impacts the lives of Americans. Accordingly, anyone--a Protestant, Jew, Catholic, Muslim, Buddhist, or atheist--can be an excellent Supreme Court justice.

However, the faith in which one was raised or which one practices forms the basis of one's worldview--the way in which a person interprets contexts and circumstances. It involves nuances regarding theology, outlook, moral choice, ethics, devotion, and community. All religious traditions provide these outlooks to their adherents, and they are present in both overt and subtle ways through our lives. I'm not lamenting the numerical absence of Protestants. Instead, I will miss the fact that there will be no one with Protestant sensibilities on the court, no one who understands the nuances of one of America's oldest and most traditional religions--and the religion that deeply shaped American culture and law.

Historically, American Protestantism is a vast, diverse, argumentative set of traditions. Sociologists include a wide array of denominations under the moniker, from independent churches to Episcopalians and all sorts of Baptists, Pentecostals, Presbyterians, Methodists, Lutherans, and Congregationalists in between. Despite such theological diversity, most Protestants retain three general convictions that shape their worldview and impact the ways in which they engage the public square:

First, Protestants hold central the idea that nothing should or can impede individual conscience. From Martin Luther's clarion call at the time of the Reformation, "Here I stand, I can do no other," Protestants of all sorts emphasize the free expression of individual rights and conscience. Those individual rights can--and do--empower liberation and freedom against corrupt institutions and unjust states.

Second, Protestants believe that symbols like the cross and the flag mean something. Going back to the days when Protestants stripped churches of religious statues and painted over icons, they believed that symbols convey the meaning of the thing depicted. Crosses, icons, flags, paintings, and other representations cannot be separated from their theological or political intention. Thus, Protestants have historically fought over the power of symbols and their meaning in public space. As a result, they often argue for empty public space because they understand the internal power of symbols.

Third, Protestants (in partnership with free-thinking Enlightenment philosophers) created the concept of the separation of church and state in the 17th and 18th centuries. Indeed, some historians argue that the Constitution's Establishment and Free Exercise clauses--the phrases that guide the relationship between religion and politics--might well be the most important contributions of American Protestantism to Christian theology.

These three things--individual conscience, the power of symbols to inspire and convince, and the separation of church and state--are not merely areas of law to Protestants. No, these are the things that inflame the Protestant soul--the things we have fought over, left other churches and start new denominations to uphold, teach our children, sing of in our hymnody, of which we write books and hold theological debates, and why we do good on behalf of our neighbors. Protestants do not always agree on how these principles work out in the law, nor have Protestants always followed their own principles to their logical legal conclusions. But these are the things that guide Protestants, the insights that animate the followers of one of Christianity's great traditions.

Elena Kagan will be a fine and fair justice. President Obama has made a thoughtful, considered choice. But, on this day, I am a little sad. Missing from the bench upcoming years will be someone who empathizes with the Protestant worldview in a visceral way. As religious cases multiply in an increasingly pluralistic world, I can't help but think that losing the lived memory of American Protestantism will be a loss for all of us indeed.

ny-atty
May 26th, 2010, 08:48 AM
I have no doubt that Elena Kagan is an intelligent and capable attorney, and I do not believe, as some might have asserted, that her lack of judicial experience disqualifies her for a seat on the U.S. Supreme Court.

ablarc
May 26th, 2010, 07:40 PM
Because they're assumed to be the ubiquitous majority in charge, no one pays Protestants any mind. This article points out that they are the completely unrepresented majority --at least on the Supreme Court. I bet Protestants are mostly not even aware of it. Thank you, lofter, for pointing it out.