Kagan Confirmation Hearings

[JEDIYoda]

when the waiting lines form and the real bill comes in, you and many others will be plenty bitter. The obama medical is "coverage" not service. Big difference.

playing word games again..you republicans really have not gotten over losing the White House now and for the forseeable future!!

 

[highland145]

With the exception of Sen. Graham, all the Republicans so far sound bitter that Obama is President and that health care reform became law.

Graham is a RINO. And I'll be voting against him the next time he comes up, like I did the last time.

 

[highland145]

One more reason for a NO vote, imo. Unless partial birth abortions are your thing.
http://cdn.nationalreview.com/pdf/kagan_page_1336.pdf

Kagan saw ACOG’s original paper, which did not include the claim that partial-birth abortion “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman,” but, on the contrary, said that ACOG “could identify no circumstances under which this procedure . . . would be the only option to save the life or preserve the health of the woman.” She wrote a memo to two White House colleagues noting that this language would be “a disaster” for the cause of partial-birth abortion, and she then set out to do something about it. In notes released by the White House it now looks as though Kagan herself—a senior Clinton White House staffer with no medical background—proposed the “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman” language, and sent it to ACOG, which then included that language in its final statement.

http://corner.nationalreview.com/post/?q=MmY0ODUxMjcwYWY3OWU3MGRmM2QwYjkwMjNiMjlkNmU=

 

[woolfe9999]

I wrote Sen. McConnel and told him if ANY republican votes for her and they don't stop this I will actively contribute against them in primaries. She is not fit to be a justice. Her argument that the gubment could ban books pretty much seals it.

She doesn't support banning books. It isn't even close to what she actually said.

- wolf

 

[spidey07]

She doesn't support banning books. It isn't even close to what she actually said.

- wolf

I paid a whole lot of attention to that case and was one of the few people here who understood what it was about. She absolutely does believe it's fine to have a law that bans books, that was her argument for the defense, that it didn't matter what the media was, it's ok to ban certain kinds of political speech. That's why the justices were so flabergasted at her approach - it's OK to have these laws because...welll...you know...they aren't enforced but the law itself is constitutional.

In the big huge thread about the case I even brought up her absurdity then. This isn't some new "gotcha", many have known about her position and rightfully called her out on it even then.

 

[woolfe9999]

I paid a whole lot of attention to that case and was one of the few people here who understood what it was about. She absolutely does believe it's fine to have a law that bans books, that was her argument for the defense, that it didn't matter what the media was, it's ok to ban certain kinds of political speech.

In the big huge thread about the case I even brought up her absurdity then. This isn't some new "gotcha", many have known about her position and rightfully called her out on it even then.

No, she said that this law has never been enforced in such a way as to ban books, and IF it ever was, it would be subject to a successful as applied challenge to its Constitutionality. In other words, an enforcement would cause that portion of the law to be struck down. Some of the Justices were saying the whole law should be struck down if part of it is Unconstitional - that is what Scalia meant by overbreadth. That is what the discussion was about.

- wolf

 

[nonlnear]

I paid a whole lot of attention to that case and was one of the few people here who understood what it was about. She absolutely does believe it's fine to have a law that bans books, that was her argument for the defense, that it didn't matter what the media was, it's ok to ban certain kinds of political speech.

In the big huge thread about the case I even brought up her absurdity then. This isn't some new "gotcha", many have known about her position and rightfully called her out on it even then.

No, she said that this law has never been enforced in such a way as to ban books, and IF it ever was, it would be subject to a successful as applied challenge to its Constitutionality. In other words, an enforcement would cause that portion of the law to be struck down. Some of the Justices were saying the whole law should be struck down if part of it is Unconstitional - that is what Scalia meant by overbreadth. That is what the discussion was about.

- wolf

This is all well and good but to me it doesn't really matter which of you is right on this point. To think that certain media are somehow special, and deserving of more robust protection than others is the most disturbing part of the position Kagan was arguing. It is even scarier when you observe that the medium which (in wolf's take) deserves more robust protection is becoming less and less significant in the publishing landscape, and the electronic media which Kagan is happy to censor (under either of your interpretations) are going to comprise the vast majority of political discourse over the next hundred years.

 

[Pens1566]

It is not up to the president who gets put on the bench, that is reserved for the senate and the way it is supposed to be, The People through their Senator. The executive plays no role in this but to make nominations.

Incorrect

 

[nonlnear]

I wish Senator Sessions would just STFU about DADT. Everybody knows DADT will be gone soon, and the fogeys need to get over it. Pretending that there is something worth defending (on moral or political grounds) is getting old. How about questions that matter?

 

[werepossum]

I wish Senator Sessions would just STFU about DADT. Everybody knows DADT will be gone soon, and the fogeys need to get over it. Pretending that there is something worth defending (on moral or political grounds) is getting old. How about questions that matter?

There are no questions that matter. Democrats (and Lindsay Grahamnesty) will vote for her because they know she will advance progressive causes by ignoring or re-writing the Constitution. Republicans (except for Lindsay Grahamnesty) will not vote for her because they know she will advance progressive causes by ignoring or re-writing the Constitution. The confirmation hearing is merely a formality where both sides can make speeches that sound good to their constituencies (and, they hope, the undecided moderates) and where occasionally a deal-breaker like an illegal nanny will pop up and disqualify a nominee. The senators could literally take a page from Thurmond and Byrd and simply use their time to read the phone book and nothing would change.

 

[nonlnear]

There are no questions that matter.

True enough. How about questions that are interesting then. I like a good afternoon of C-SPAN and prefer it to be a higher caliber than moronic MSM questions. That's all.

 

[werepossum]

True enough. How about questions that are interesting then. I like a good afternoon of C-SPAN and prefer it to be a higher caliber than moronic MSM questions. That's all.

I liked C-SPAN when I first got it. Then I actually got to see D.C. in action. Now it's more than I can stand.

 

[boomerang]

Listen to this shit.

http://www.c-spanarchives.org/program/ID/227000&start=2548&end=2588

She will not publicy say she wrote this memo, but she will say that it is her handwriting. The only trick she hasn't pulled is to ask what the definition of "is" is. Of course that one will be Slick Willy's forever.

KAGAN: Senator, with respect I -- I -- I don't think that that's what happened, uh, here.

HATCH: I'm happy to have you clarify. That's my question. Did you write that memo?

KAGAN: I'm sorry, the memo which is...?

HATCH: The memo that basically caused them to go back to the language of "medically necessary," that was the big issue to begin with.

KAGAN: Yes. Well, I've seen the document and the document is --

HATCH: But did you write it?

KAGAN: -- is certainly --

HATCH: Is that your memo?

KAGAN: The document is certainly in my handwriting.

 

[Lemon law]

From what I can read, Kagan has done enough Alito and Roberts style dodging ducking bobbing and weaving to escape a GOP filibuster.

And hence Kagan will probably be confirmed by the full US Senate in a month or so.

For some of you horribly upset by my news, regard my post as your advance notice, forearmed is forewarned, avoid the rush and you can be at the head of the line when it comes to getting your reserving your choice of the very best personal whambulances.

 

[Jhhnn]

The correct answer would have been "No, Senator, obviously the Commerce Clause does not extend to Congress dictatorial powers, so your law would be struck down." It's quite simple. But then like Sotomayor she would be in the position of claiming a position when she knows that as a good progressive she will take the opposite position when seated.

It's hardly an absurdity either, given the flap with the Happy Meals in California. Now that we have seen Democrats establish a requirement under the Commerce Clause (if not just promoting the general welfare) that each individual purchase health insurance, why would we not logically expect further legislation in the near future to dictate what we eat for health reasons? After all, mandating a healthy diet for its property would go much further toward limiting health care costs than a mandate for insurance, and if printing nutritional information on the front in large letters doesn't make us eat right the government will have to take further steps. Purely for our own good of course.

And you're right off the high board into an empty pool. Coburn insults his own integrity and that of the legislative branch when is puts forth such suppositions, as do you.

What it all amounts to is that Righties oppose her nomination because Obama made it. They seem to think that opposing him at every turn makes them look good, that the rest of America thinks like they do, that he's always wrong by definition. That only sells to the faithful fringe.

And it's not like I'm any great fan of her or Sotomayor, but the president has the right to make the nominations he chooses, which the Senate can accept or reject. My main objection is that the boroughs of New York and the Ivy League are very much over represented on the Court, and that there are other very capable legal minds from different backgrounds that would represent the diversity of America better.

She'll likely be confirmed w/o a lot of fanfare, other than pandering to the faithful by a few senators, which is what we're seeing at the moment. There's no good reason not to do so, given that her views really are rather doctrinaire.

 

[boomerang]

And you're right off the high board into an empty pool. Coburn insults his own integrity and that of the legislative branch when is puts forth such suppositions, as do you.

What it all amounts to is that Righties oppose her nomination because Obama made it. They seem to think that opposing him at every turn makes them look good, that the rest of America thinks like they do, that he's always wrong by definition. That only sells to the faithful fringe.

And it's not like I'm any great fan of her or Sotomayor, but the president has the right to make the nominations he chooses, which the Senate can accept or reject. My main objection is that the boroughs of New York and the Ivy League are very much over represented on the Court, and that there are other very capable legal minds from different backgrounds that would represent the diversity of America better.

She'll likely be confirmed w/o a lot of fanfare, other than pandering to the faithful by a few senators, which is what we're seeing at the moment. There's no good reason not to do so, given that her views really are rather doctrinaire.

Yet another dressing down from the left. This kind of horse shit plays well to your pals, but it rolls off us like water off a ducks ass.

LOL at "doctrinaire". It appears you only think you know what it means. You're using it in the context of it being a compliment. But, you just may have your head screwed on wrong enough to think it could be used that way.

n. A person inflexibly attached to a practice or theory without regard to its practicality.

adj. Of, relating to, or characteristic of a person inflexibly attached to a practice or theory.

 

[BoberFett]

With the exception of Sen. Graham, all the Republicans so far sound bitter that Obama is President and that health care reform became law.

What reform? You seem confused about what law actually passed. There was no reform. Only forced participation in the same system that already doesn't work.

 

[Jhhnn]

Yet another dressing down from the left. This kind of horse shit plays well to your pals, but it rolls off us like water off a ducks ass.

LOL at "doctrinaire". It appears you only think you know what it means. You're using it in the context of it being a compliment. But, you just may have your head screwed on wrong enough to think it could be used that way.

n. A person inflexibly attached to a practice or theory without regard to its practicality.

adj. Of, relating to, or characteristic of a person inflexibly attached to a practice or theory.

I know what the term means, boomerang. Others on the court have the same attribute- they hold to the Constitution and 225 years of jurisprudence in a rather stubborn fashion, too. Anybody who thinks either of Obama's picks are going to create any sort of radical changes is either a dreamer or a paranoid, take your pick.

 

[Lemon law]

Kagan will not change the balance of SCOTUS much and neither did Sotomayer.

The knock down drag out SCOTUS dogfight will happen if Obama ever gets a chance to replace Roberts, Alito, Thomas, or Scalia with a liberal that would radically change the balance of the court.

 

[highland145]

Yesterdays hearings. Do not care if she won't change the make up or not. She should gtfo.
http://www.humanevents.com/article.php?id=37818

Abortion

Kagan was asked by Senator Jeff Sessions about a memo from the American College of Obstetricians and Gynecologists (ACOG). That memo stated, [A] select panel convened by ACOG could identify no circumstances under which [the partial-birth] procedure would be the only option to save the life or preserve the health of the woman. Kagan notated next to this sentence, This, of course, would be disaster.

​

When asked about it, first she tried to deny that she had written it; she would admit only that it is my handwriting. Later she acknowledged that she was in fact responsible for the comment.

Then she obfuscated with wild philosophic and legal gyrations that would put a stripper to shame: President Clinton had strong views on this issue and what he thought was that this procedure should be banned, in all cases except where the procedure was necessary to save the life or to prevent serious health consequences to the woman and those were always his principles. And we tried over the course of the period of time when this statute was being considered, actually twice, to get him absolutely the best medical evidence on this subject possible.

Well, no. She tried to have ACOG rewrite the memo so that it would emphasize the possible dangers to the health of the woman in banning dilation and extraction (D&X), the partial-birth abortion procedure. She then informed Clinton of the memo, which now emphasized, An intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the womans particular circumstances can make this decision. She finally noted, In sum, doctors have other options, but those other options may be more risky or otherwise more undesirable from a medical standpoint. Well, no, thats not what the original said. But Kagan said her desire was merely to help clarify the statement, not to change it.

Bull.

The Solomon Amendment

Kagan was grilled today by Senator Graham on the Solomon Amendment. She said that in banning the military from involvement in the Office of Career Services, she was not making a political statement at all.

The record begs to differ. Here is Kagans actual wording in objecting to the militarys use of OCS (after being overruled by the Harvard administration in the aftermath of the Supreme Court upholding the Solomon Amendment): I believe the military's discriminatory employment policy is deeply wrong - both unwise and unjust. And this wrong tears at the fabric of our own community by denying an opportunity to some of our students that other of our students have. Does that sound political to you?

Kagan also stated that she didnt bar the military from campus. As I wrote earlier, barring them from OCS is basically the equivalent of barring them from campus. Everyone I know got a job through OCS. Everyone. Those who got work from the military did so because they sought out the military (I know, because I did the same thing when I was considering becoming a JAG).

Gay Marriage

There was a lot of talk about this today. First, Senator Grassley asked whether Baker v. Nelson (1972) was settled law. The Supreme Court refused to hear that case because they said that marriage was a state issue and no federal question was posed. Kagan said that this did not constitute solid precedent because the Court did not hear the case.

This is her way of saying that shell support gay marriage under a massive misapplication of the Fourteenth Amendment. The fact is that the reason the Court didnt hear the case is becausethere was nothing in the case that implicated the Constitution. As Sen. Grassley noted, nothing has changed in the Fourteenth Amendment since 1972. Of course, Kagan doesnt think thats true, because she relies on Justice Kennedys pernicious phraseology (as articulated in another gay rights case,Lawrence v. Texas): evolving standards of morality.

When asked about same sex marriage by Sen. Cornyn, she tried the same approach shes been using for days: spinning around the issue. Instead of giving her view on whether same-sex marriage is mandated by the Constitution, she stated, There is no federal constitutional right to same-sex marriage. In other words, she summarized what we already know there iscurrently no rightto same-sex marriage. That tells us nothing about what she will rule on the issue.

Naturally, shell rule in favor of same-sex marriage. All of this is claptrap of the highest order.

Property Rights

If you want to hear a bizarre response to a legal question, listen to Kagans response to Senator Grassleys question on Kelo, the case that essentially decided that party As property can be given to party B if party B can generate more tax revenue from the property. Grassley asked if she agreed with Kelo.

Kagans answer: the goal of Kelo was to kick it back to the states. She then said that the states had taken actions to prevent Kelo-type situations from occurring.

This is nonsense. It is equivalent to arguing that Plessy v. Ferguson was an attempt to kick it back to the states, forcing them to pass laws barring segregation, rather than an obviously horrible decision legalizing segregation under the Fourteenth Amendment. The purpose of Supreme Court decisions is to set the state of the law. It is not to incentivize states to do anything. We can only imagine that Kagan will attempt to use this same justification in the future for all her bad decisions (I was only attempting to incenvitize states to do X!).

Activist Judges

Sen. Graham asked Kagan to identify an activist judge in American history. Kagan declined, then tried to define what activist meant. She came up with three relevant factors: (1) an activist doesnt defer to the political branches; (2) an activist doesnt respect precedent; and (3) an activist doesnt decide cases narrowly.

Not even close. The definition of an activist judge is simple: a judge who tries to read his/her moral preference into the Constitution of the United States. Was the Court activist for failing to defer to the Congress in Citizens United? Absolutely not, because of a little thing called the First Amendment (violating Kagans first factor). Was the Court activist when it overruled precedent in Brown v. Board? No, because Plessy was wrong (violating Kagans second factor). Would the Court be wrong to strike down ObamaCare based on the fact that it is utterly unauthorized by the Constitution? Of course not, because the Constitution has certain standards that have not been met (violating Kagans third factor).

The truth is that judicial activism is a term that has been hijacked and perverted by the left. It has nothing to do with respect for precedent (after all, most Supreme Court precedent of the last fifty years sucks beyond belief and has nothing whatsoever to do with the Constitution), nor respect for the other branches (after all, the Supreme Court is supposed to be part of that checks and balances system, right?), nor even with narrow rulings. Judicial activism is, purely and simply, acting like a politician rather than someone who understands the wording of law in its original context. Activist judges would not dare to interpret the Sherman Antitrust Act with the same freewheeling disregard as they do the Constitution. You can spot an activist judge a mile off, and Kagan is one of them.

 

[MotF Bane]

She's hypocritical as hell.

 

[Lemon law]

Hugnland145 claims, "The truth is that judicial activism is a term that has been hijacked and perverted by the left."

Yet when the real truth is told, Justices like Scalia are equally activists judges who find constitutional powers and legal exceptions to clearly articulated constitution wordings right out of their own little imaginations. Get rid of just one of the four activists judges in Roberts, Alito, Thomas, Scalia, or Kennedy and it not hard to predict many of the past decade's five to four SCOTUS decisions will be reversed.

 

[woolfe9999]

This is all well and good but to me it doesn't really matter which of you is right on this point. To think that certain media are somehow special, and deserving of more robust protection than others is the most disturbing part of the position Kagan was arguing. It is even scarier when you observe that the medium which (in wolf's take) deserves more robust protection is becoming less and less significant in the publishing landscape, and the electronic media which Kagan is happy to censor (under either of your interpretations) are going to comprise the vast majority of political discourse over the next hundred years.

This point was too much nuance for Spidey but perhaps you'll understand it. Kagan as Solicitor-General is an attorney in an adversarial justice system, whose job it is to defend laws on the books against attack. And it isn't really her discretion to not defend a particular law (that comes from higher up in the admin). Anyone who really understands the role of advocates in our judicial system isn't going to take comments she makes in an oral argument as necessarily refelective of her own views. An ordinary attorney is a paid mouth piece, except that attorneys in the private sector at least have *some* discretion over which client's they work for and which cases they take (subject only to the economic ability to turn away clients). I understand that there is a relative paucity of public legal writings here and hence the curiosity about her legal arguments as S-G, but one should be cautious in reading too much into her statements as an advocate.

That said, on the point at hand, Kagan was arguing in the context of the Citizens United case on the limited point about defending a particular law which had to do with whether corporations and unions had unlimited free speech rights, or whether the FEC could impose some time, place and manner restrictions on entity speech close in time to actual elections. The idea that entities have full free speech rights is actually quite an expansive interpretation of the Constitution as arguably the framers never intended any such thing. Accordingly, this is a narrower point than the way you are describing it.

- wolf

 

[highland145]

Hugnland145 claims, "The truth is that judicial activism is a term that has been hijacked and perverted by the left."

Yet when the real truth is told, Justices like Scalia are equally activists judges who find constitutional powers and legal exceptions to clearly articulated constitution wordings right out of their own little imaginations. Get rid of just one of the four activists judges in Roberts, Alito, Thomas, Scalia, or Kennedy and it not hard to predict many of the past decade's five to four SCOTUS decisions will be reversed.

I'm not disagreeing with your assessment of the 4 mentioned. Right, left or otherwise just uphold the Constitution.

And she lies. Where's Joe Wilson when you need him.

 

[nonlnear]

This point was too much nuance for Spidey but perhaps you'll understand it. Kagan as Solicitor-General is an attorney in an adversarial justice system, whose job it is to defend laws on the books against attack. And it isn't really her discretion to not defend a particular law (that comes from higher up in the admin). Anyone who really understands the role of advocates in our judicial system isn't going to take comments she makes in an oral argument as necessarily refelective of her own views. An ordinary attorney is a paid mouth piece, except that attorneys in the private sector at least have *some* discretion over which client's they work for and which cases they take (subject only to the economic ability to turn away clients). I understand that there is a relative paucity of public legal writings here and hence the curiosity about her legal arguments as S-G, but one should be cautious in reading too much into her statements as an advocate.

I get that, and that's why I have never posted anything resembling "I oppose her nomination on blah blah grounds". She did her job (distasteful as it may have been for people with certain beliefs), and was clearly competent enough to be playing at that level. I do find the general notion behind the US Government's position completely distasteful though. But that goes for a lot of positions the government has taken on SCOTUS cases. Meh.

Actually I can see room for a bit of humor in the position she was arguing as well. Her position stated that she believed the law wouldn't hold up to an as applied challenge if books were at issue. There is room to believe she may have been laying bare an argument that she would like to see presented if she were ever to have an opportunity to rule against the kind of position she had been advocating for. Maybe. Or maybe not...

That said, on the point at hand, Kagan was arguing in the context of the Citizens United case on the limited point about defending a particular law which had to do with whether corporations and unions had unlimited free speech rights, or whether the FEC could impose some time, place and manner restrictions on entity speech close in time to actual elections. The idea that entities have full free speech rights is actually quite an expansive interpretation of the Constitution as arguably the framers never intended any such thing. Accordingly, this is a narrower point than the way you are describing it.

- wolf

I think it's sad that the expansion of speech rights has taken the dialog tho the point that it has. I personally see no point in trying to constrain speech, except as a way to tilt at windmills and employ a couple thousand staff attorneys to accomplish nothing substantial. McCain Feingold accomplished precisely zilch in terms of keeping corporations outside of political speech other than tweaking the way in which political ads are worded. The issue of policing corporate speech directly is an intentionally constructed non-issue which has infinite potential for ideological posturing, but no potential for real resolution either way. It is a partisan strategist's dream because it enrages people on both sides, while simultaneously empowering them. That is why party leaders on both sides want to keep the discussion of corporate influence on government framed in these terms.

What REALLY needs to be discussed in order to have useful sociopolitical effects is why corporations see value in attempting to influence government in the first place. If lobbyists didn't have access to the back doors of government, they wouldn't have as much incentive to pervert government in the first place. Shut down lobbying, and you shut down multi-billion dollar corporate political advertising.