Supreme Court

Free Speech for Thee, But Not for Me



The White House Monday said that Supreme Court nominee [Elena Kagan] won't follow her own advice from 1995 in answering questions on specific legal cases or issues, supporting Kagan's flip flop on the issue that she first made a year ago.

Kagan wrote in 1995 that the confirmation process had become a "charade" because nominees were not answering direct questions, and said they should have to do so.

But during a briefing with reporters in the White House, Ron Klain, a top legal adviser to Vice President Joe Biden who played a key role in helping President Obama choose Kagan, said that she no longer holds this opinion.

Klain pointed to Kagan's testimony during confirmation hearings for her current job as solicitor general, the government's top lawyer.

"She was asked about it and said that both the passage of time and her perspective as a nominee had given her a new appreciation and respect for the difficulty of being a nominee, and the need to answer questions carefully," Klain said, prompting laughter from a few reporters.

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  1. If the other shoe fits make lemonade.

  2. Color me shocked.

  3. She is going to be appointed to the one judgeship for which there is no real mechanism to catch and correct an error. She has no record of any judgments as she has never been a judge at any level.

    Way to go Barry! Great attempt at sliding one under the screening process. Can’t get her to comment on “issues that might come before the court” and can’t question her thought and reasoning capacity as we have no record to analyze.

    Can you imagine the screaming in the MSM if GW Bush had pulled this kind of thing? Remember Harriet Myers? Somehow the MSM is not as disturbed about it this time.

    Another example of the differences between the big books of rules for the R’s and the D’s. As far as the MSM goes, R’s can’t do anything, and D’s can do anything they want.

    Another good reason to hold your nose in 2010 and vote a straight Rep ticket. They may be idiots, but they are closely watched and readily challenged idiots. The Dems simply get away with too much.

    1. I believe the last SCOTUS nominee with no judgeship experience was William Rehnquist, nominated by Richard Nixon.

      Those damn Dems just get away with too much!

      The point being, BTW, that it’s actually somewhat of a recent phenomenon to expect SCOTUS nominees to have already been judges before coming to the high court. There have been some very good justices who had no prior judging experience. The Constitution places no limits on who the President can nominate, other than that the Senate gets to advise and consent.

      1. I agree that prior judging experience isn’t nor should it be a prerequisite for getting the nomination, but this pick just seems like Barry is picking his old buddies from Harvard as some sort of payback for helping him cruise through law school.

        It’s not like picking a SCOTUS judge is important or anything..

        1. Sotomayor went to Yale. I think you need more than one example to call a trend. If there is any trend, it’s that he’s appointing women.

          1. I wasn’t just referring to SCOTUS picks. Look at this list of Harvard Law School alumni and faculty who are currently serving in the Obama administration.

            In putting together his administration, Obama selected more than 70 HLS alumni and faculty who will assist him in crafting law and policy in areas as diverse as the economy, the environment, and the military.

      2. I don’t support Kagan, but I think the fact that she isn’t a judge may be the strongest argument in her favor. I’d like to get back to the days when there was more than one path to the Supreme Court.

        1. So would I Jessee. But the guy at the top of the thread makes a good point. How can someone have no judgeing record and also refuse to answer any questions? If you have never been a judge, you ought to have to pretty explicitly explain what kind of judge you will be.

          1. If the media and the party spin machines would refrain from turning the slightest expression of opinion that’s not bland boilerplate into evidence of a preconceived and self-serving narrative, then I’d expect we’d get more out of nominees.

            1. Blame FDR Tony. The result of court packing attempts and the politicizing of the SCOTUS.

              1. FDR turned the USSC into just another legislature, one appointed by Presidents and whose Acts can only be repealed with great difficulty.

      3. I believe the last SCOTUS nominee with no judgeship experience was William Rehnquist, nominated by Richard Nixon.

        And don’t forget Earl Warren who was nominated by Eisenhower

    2. What the hell are you talking about? Roberts and Alito slithered through their confirmations by essentially lying about how activist they would eventually be, with the same excuse you present here.

      Myers was withdrawn because the wingnuts were afraid she might be a secret baby killer.

      So here we are, two Federalist Society ideologues from Bush, and two mildly liberal technocrats from Obama. No true-blue fire-breathing liberal has ever been on Obama’s list.

      1. Tips for Putting on a Condom

        1 Have a condom on hand.
        2 Make sure the condom isn’t past its expiration date, and has not been tampered with or damaged.
        3 Carefully tear open condom packet.
        4 Hold tip of condom to create an air-free reservoir for semen.
        5 Roll condom over the base of the penis.
        6 Add water-based lubricants only.
        7 If a condom breaks during intercourse, stop and immediately replace it with a new one.
        8 Hold condom at the base during withdrawal from intercourse.
        9 Dispose of condom in trash.
        10 Never flush condoms down the toilet.

        1. I don’t see the point of #9 and #10. A condom is just as effective even if you flush it down the toilet or empty its contents into the penetrated’s ears rather than putting it in the trash.

      2. No true-blue fire-breathing liberal has ever been on Obama’s list.

        Tony, maybe they don’t realize you are available.

      3. What, exactly, is your definition of a “fire-breathing liberal”? Deference to the good intentions of the government when it suits you? Would a nominee who would strike terror into the heart of Congress by actually promising to reject some of the blatantly unconstitutional crap of the past few decades be a “fire-breathing liberal”, a “Federalist Society ideologue”, or something else entirely in your world?

        1. Great questions, Brian.

          Let’s see if he can answer them.

  4. “…prompting laughter from a few reporters.”

    What daring! What outrageousness! What insolence! What arrogance! …I salute you.

    1. That line was definitely the most frustrating part of the post.

    2. I have a feeling it was the smug laughter of hypocrites who see that another hypocrite won’t be held responsible for her hypocrisy. I’m hearing a sort of “you go girl!” chuckle.

  5. If Senators had any guts, they’d refuse to confirm anyone who ducked direct questions.

    But, this is about politics — about getting someone on the court who will distort or violate the Constitution in politically expedient way — not about appointing someone who will interpret the Constitution as written.

    1. The Supreme Court cannot distort or violate the Constitution, since they are the ones who have the ultimate say in how to interpret it.

      One of the spoils of winning the Presidential election is that you get to pick the SC justices.

      Crying about it won’t help.

      1. I am the law!

        1. When the President does it, it’s NOT illegal.

          1. No Dick, that’s not true about just any President. If Lincoln did it, it’s NOT illegal.

      2. So, Danny boy, if a state voted to re-establish the institution of chattle slavery and the USSC said that it’s consistent with A13, you’d be cool with it?

        1. L’etat c’est mois!

          1. I doubt if Dan is going to be able to slime his way out of answering that.

        2. No need for hypotheticals. Just ask him how he feels about Heller and Citizens United.

  6. her perspective as a nominee had given her a new appreciation

    Well, then.

  7. “If the other shoe fits make lemonade throw it.”

    1. I used to be opposed to murder, thinking that convicted murderers should be put to death.

      But now, having personally murdered a family of six, I see things more clearly.

      1. That was supposed to be nested under P Brooks 5.11.10 @ 12:34PM

        How odd.

      2. I’m sure that you guys haven’t had any changes of opinion in the last 15 years.

        1. My changes in opinion don’t affect how the law that governs 300 million people is going to be interpreted and enforced for the indefinite future.

  8. Do we really need another Harvard person in a position of power?
    Does if seem that they are doing a good job?????????????????

    1. RC Dean should be the nominee then, if the criteria is Harvard Law alumni status. Seriously, how is he any less qualified than Ms. Kagan?

      1. I’d nominate you, doc, except…you went to a state school. That’s even worse than going to Brown.

        1. Homer: “I’ve had just about enough of your Vassar bashing young lady!”

          1. “You’re just a rack of bones covered in a thin layer of fag.”

      2. Was he the Dean of HLS with a record of impressive scholarship in law?

        I mean come on Groovus, you’re not even trying today. Focus!

        1. But Keagan doesn’t have that much of a record. It is not like she is Cass Sunstein or something. She is an average scholar. The Harvard dean position is a management and fund raising position. You don’t get that job by being the best scholar.

        2. No. To my knowledge he has not been the Dean of HLS. The impressive scholarship assertion of Ms. Kagan is debatable.

          However, with RC being an attorney well versed in medical liability law as well as other aspects of Constitutional law, I would certainly rather him review this monstrosity that recently passed than Ms. Kagan and it’s alleged Constitutionality.

          1. That was mean of me, she’s a woman, not an “it”. But then, the tests results have not come back yet….

          2. “To my knowledge he has not been the Dean of HLS.”

            I’m told the ladies at Harvard refered to R.C. affectionately as THE Dean of HLS. 😉

      3. No one should confuse Ms. Kagan with a prominent legal scholar, much less a prominent Constitutional scholar.

        I actually had this conversation with Mrs. Dean last night, to the effect that I was probably about as qualified as Ms. Kagan.

        However, if nominated to SCOTUS, I would probably decline, on the grounds that I really don’t have any kind of useful background for appellate judging, and I don’t like making a fool of myself in public.

        People like Elena Kagan, though, appear to be immune to any sense of personal limitation, not to mention public embarrassment or shame.

        1. I went to google scholar and entered in Elena Kagan. She’s had many publications.

          I didn’t find any for RC Dean.

          1. In other words, you guys don’t know wtf you were talking about…


            2. Since none of you Reason fans have been Supreme Court nominees, you can just shut the fuck up and let Obama do his job without commenting.

          2. I didn’t find any for RC Dean.

            Perhaps because it is a nom de blog?

          3. Oddly enough, you claim to be published, but I entered both “MNG” and “Mr. Nice Guy” and got no hits. So by your own standard you are a despicable liar.

  9. Could we just exclude anyone who has worked as an attorney for the current administration from consideration? I think this is a reasonable standard that in no way constrains the Executive branch from putting their kind of people on the Supreme Court (which is definitely the administration’s Constitutional privilege).

  10. vote a straight Rep ticket. They may be idiots, but they are closely watched and readily challenged idiots.


    1. He has a point.

      The scary thing about the current powers-that-be is not what they want to do, so much as the cover they get from the press.

      They ALL want to do crappy things. But the current batch gets to do them without the cadre of full-time challengers that reporters SHOULD be. So if you’re going to elect jerk-offs, maybe it makes sense to elect the ones who will have the least power, and who will have to jerk off in public.

  11. Miami University Had The Pukiest, Poopiest, Sexiest Spring Formal Ever

    Like most bus rides to fraternity formals, the guys and gals pounded Natty Lights and other booze most of the way there and were completely obliterated before they even stepped foot inside Lake Lyndsay, which is about 20-30 minutes away from Miami University’s campus. Phipps said the damages both inside and outside the palatial lake area lodge (which was hosting a non-alcoholic wedding at 8 a.m. the next morning) were not the most disturbing part of the evening, but more “the overall behavior of the students.” As you can tell from the detailed description in her letter, both male and female attendees went completely nuts: puking on themselves, breaking crystal vases, decapitating stone lion statues, urinating in sinks, pooping on the side of the building, screwing in the caterer closet, boinking in the beach house. “They were out of control,” Phipps said.…..ormal-ever

    1. I saw this earlier, from the link about the yo-yo guy. Hilarious.

  12. That was supposed to be nested under P Brooks 5.11.10 @ 12:34PM

    How odd.

    Odd? Not in the least.

    Threaded comments are an abomination.

  13. One of the spoils of winning the Presidential election is that you get to pick the SC justices.

    Sophisticated analysis.

    1. Hey, we won.

  14. A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. With consistency a great soul has simply nothing to do. He may as well concern himself with his shadow on the wall. Speak what you think now in hard words, and to-morrow speak what to-morrow thinks in hard words again, though it contradict every thing you said to-day.

    Emerson is right. I wouldn’t follow advice from my 1995 self either.

    I mean, Jesus, that was 15 years ago. Surely there’s a time expiration on that kind of thing. Or does Mr. Walker think that I have to adhere to all my 7th grade opinions, lest I be a dreaded flip flopper?

    1. Fuck Emerson up the ass.

    2. Horsehit, Chicken George.

      If you are going to make a statement like that, even if you don’t think you won’t be in the position you are being nominated for, yeah you better be prepared to die by that sword.

      Or to invoke the most popular Iron Law* of late:

      Me today, you tomorrow

      She just happens to be the “you”.

      *as compiled by RC Dean

      1. If you are going to make a statement like that, even if you don’t think you won’t be in the position you are being nominated for, yeah you better be prepared to die by that sword.

        Which is to say, if you make a statement that becomes a part of the public record, you have to stick by it?

        1. Yes. You make it, you own it. She will have the chance to clarify her statement, provided she is questioned about it. Is this not the point of a confirmation hearing? To test consistency in the statements one makes asserting judicial authority, including the process thereof?

          I agree with Jesse on this one. Yes, one has the right to change their mind regarding a situation, but I find this episode telling: she is being nominated for a seat in the highest court in the land where legal opinions carry weight that is the final say on law. Now, if she regards the process as unpleasant and she should not have to answer direct questions since SHE is now in the hot seat, yet she wrote the EXACT opposite in 1995, then I do question:

          A) Her judicial character.

          B) How ideology will govern her decisions.

          I find such malleability in a nominee very suspect, which also was my main complaint with Sotomayor. We just knew more about Sotomayor because she actually had an extensive record of judicial decision.

    3. Chicken George: Of course it’s fine for Kagan to change her mind. The problem is that she changed it in the wrong direction, and that she did so for what were almost certainly opportunistic reasons.

      1. ^this

      2. I’m not convinced she changed her opinion in the wrong direction. Nomination hearings are never about the candidate and contain very little substance. They’re an opportunity for senators to grandstand, and little else. She’s likely to get support from Democratic senators without having to open her mouth, and she’ll never be able to say anthing convincing to Republicans. In these circumstances, any good lawyer would tell you to keep your mouth shut just so you don’t give anyone rope to hang you with, and slide through on a party line vote.

        In 1995, she was speaking as a member of the public. Now she’s speaking as a nominee. As her role has changed, her behavior has had to change with it. Your neighbor can get away with dispensing medical advice at a cocktail party; your doctor can’t.

        1. Yes, I can George. Again, I say it, I own it, and courts have been very specific on “Hallway DX” and “Curbside DX”. I am on the hook for any medical advice I give, verbally or in print, or scrip I write, be it office, cocktail party or even electronically. As I should be. I see nothing different here.

        2. In fact, from the link in the FA:

          “The bottom-line issue in the appointments process must concern the kinds of judicial decisions that will serve the country and, correlatively, the effect the nominee will have on the court’s decisions,” she wrote.

          “If that is too results oriented ? so be it.”

          In 1995, she was a tenured professor of law and I would assume had a law license and would still presumably have one. She owns it the statement.

  15. Jesse Walker has caught another heathen changing her mind! True believers never ever change their minds, right, Jesse? Instead of following the iron logic of revealed dogma these flip-floppers go from one optinion to another based on such a fickle thing as evidence. Just answer one simple question, Elena: Do you believe in freedom or don’t you?


      2 cups unsifted all-purpose flour
      3 large yellow onions, sliced and diced
      3 green onions, diced
      2 teaspoons cream of tarter
      2 Tablespoons unsweetened powdered chocolate
      1 teaspoon baking soda
      3/4 teaspoon salt
      1/2 cup pork lard
      1/4 cup boiled milk
      2 eggs, slightly beaten

      Boil milk for 5 minutes. Set aside.
      Sift dry ingredients togehter.
      Blend in lard with pastry blender until mixture resembles fine bread crumbs.
      Add the remaining ingredients.
      Mix with fork.
      Divide dough into two parts and turn each part out on floured board.
      Do not handle.
      Flatten with rolling pin into circles about 1/2″ or more thick.
      Cut in triangles and put on greased and floured baking sheet.
      Bake in hot oven (400 degrees) for 15 minutes, or until golden brown.
      Serve warm, slightly buttered.
      Makes about 16 onion cookies.

      1. What an intriguing recipe, Warty. Thanks!

      2. I almost want to try this just to see how horrible they would really be.

        Also, why triangles?

      3. Trying to get the new Reason cooking section editor gig?

    2. I used to be a conservative, until I found out I could make money being a liberal talk-show host.

  16. I really really really want a job for life where, during the screening process I don’t have to answer any questions about the job itself because those are issues that, you know, I would have to deal with if I get the job.

    Who started this “I can’t answer any questions about issues that may come before me if I’m on the court” business. Seriously, who was the first to get away with that BS ? Or has it always been this charade?

    1. Shit, I’d willingly take a one-year 6-figure contract for a job where, during the screening process I don’t have to answer any questions about the job itself, and where I’m the only one being interviewed. It doesn’t even have to be for life.

      I’m employed currently, but I’m always open to new opportunities, in case anyone has an opening like that.

  17. Don’t be too quick to discount the advantages of judicial experience. Writing in a hypothetical sense versus writing opinions or making rulings that have real-life consequences are night and day.

    Furthermore, the ability of us to evaluate the nominee is far greater in the case of actual judges, particularly those with appellate experience. Janice Rogers Brown, for instance, won’t be nominated because of her libertarian rulings and opinions. This isn’t to say that non-judges can’t be good on the Court–they certainly can–but our ability to evaluate them, even if they’ve written articles, is very limited. Kind of like voting for presidents with thin resumes.

    In this case, my problem with the nominee is more about her clearly and professionally pro-government outlook than with her politics per se. Give me a lefty that has some paranoia about the government, and maybe an occasional good opinion/vote will come. Give me one who just wants to expand government power, and we all lose, even those who think they want that.

    1. I would take someoen liberal or conservative outside of the Harvard Yale Conlaw priesthood. How about a state law school graduate who has been a public defender? That would work for me even if they were a flamming liberal.

      1. A defense attorney, eh. You mean someone who made a fortune getting the scum of the earth off on technicalities so that they could go back to terrorizing our communities? You’re a monster. What are you, some kind of criminal apologist?

        1. And a public school graduate to. I am the worst I know

        2. You know what would be amusing? One of those First Amendment attorneys who specializes in defending strip clubs.

        3. It is funny. The media is so “obsessed with diversity”. But they think diversity is a bunch of people who all went to the same schools and worked the same jobs but just look different. The idea that diversity is more than your skin color or sex and about your actual experiences and perspectives escapes them.

          1. Can it, white man!

          2. Fat Jewish lesbians need a voice too, you insensitive clod. Especially if that voice sounds exactly the same as every other liberal from Harvard.

          3. Diversity = skin + genitals

            1. Don’t forget religion.

    2. I think some experience as a judge is also worthwhile since it’s the only remaining way to get a clear view of a nominee’s judical philosophy, since just asking during the comfirmation hearings doesn’t work and it’s rare for someone whose views have been well-established outside of being a judge to get nominated.

    3. Writing in a hypothetical sense versus writing opinions or making rulings that have real-life consequences are night and day.

      Like the difference between, say, Ralph Waldo Emerson and a Supreme Court Justice…

  18. Wow, never really thought about it that way before and it does make sense.


  19. You know what would be amusing? One of those First Amendment attorneys who specializes in defending strip clubs.

    Ooh- maybe an Institute for Justice alum!

    That would stir up the chicken coop.

  20. Here’s a sample question:

    [reads Fourth Amendment aloud, to nominee]

    What do you think this means?

    1. How about this one:

      “Congress shall make no law….”

      1. “Congress shall make no law….”

        You know, if Ginsburg were to doze off after reading just that, instead of during arguments, she would probably come up with some pretty good jurisprudence!

      2. They thought if the lobbyists drafted it, it might not technically be “made” by “Congress”.

        1. “So, Miz Kagan… this Tenth Amendment thingy… you really don’t need to comment on that. Next!”

  21. Another sample question:

    [Reads First Amendment alound to nominee]. Ms. Kagan, could you identify in the text of that amendment where Congress is empowered to limit political speech?

    Mr. Chairman, if I could have a followup question? Thank you. Ms. Kagan, could you explain to the Committee how prohibiting someone from expending resources disseminating their message isn’t a restriction on their free speech rights?

    One more question, Mr. Chairman? I promise this is my last. Ms. Kagan, given those answers, are you representing to this committee that you are, in fact, fluent in the English language?

    1. Given that basically the whole Senate is already or hopes to be a beneficiary of the McCain-Feingold Incumbent Protection Act, who’s going to be asking these questions?

      1. In a purely cynical world, all Senators are angling to replace a (possibly incumbent) President.

        1. The only thing McCain-Feingold does in that case is to give them a leg up on primary opponents who aren’t favored by the establishment. The “right” people win and we lose every time.

  22. http://www.thresq.hollywoodreporter.c…..ywood.html

    One positive in her favor, she has made at least some of the right enemies.

  23. Somebody for whom I have huge respect (despite some demonstrable lefty leanings) is this guy:

    Long before Page’s football career came to a close, he was laying the groundwork for his future role as a justice with the Minnesota Supreme Court. While playing professional football full-time, Page attended the University of Minnesota Law School, from which he received his Juris Doctor in 1978. Following graduation, he worked with the law firm of Lindquist and Vennum in Minneapolis from 1979 to 1984. In 1985, Page was appointed Special Assistant Attorney General, and was soon thereafter promoted to Assistant Attorney General.

    In 1992, Page was elected to an open seat as an Associate Justice of the Minnesota Supreme Court, becoming the first African-American to ever serve on that court. He was re-elected in 1998, becoming the biggest vote-getter in Minnesota history, and was again re-elected in 2004. If Page chooses to run for re-election in 2010 and wins, it will necessarily be his last term, as Minnesota has mandatory retirement for judges at age 70.

    On January 7, 2009, Page was appointed by Chief Justice Eric Magnuson to select the three-judge panel which heard the election contest brought by Norm Coleman. Coleman contested the U.S. Senate election certified on the previous day.

    I wonder if he’d be interested in a seat on the Supreme Court.

  24. I would just like to point out that I could not care less if a Supreme Court Justice is the spitting image of Jabba the Hut and spends its free time having sex with a Cape buffalo, as long as the rulings conform to my wishes.

    *sticks out tongue, pats self on back*

    1. Bring me Jeff Toobin and the Wookie.

    2. Errrr, what if aforementioned congress with the cape buffalo were illegal in the jurisdiction in which s/he resided?

  25. Lindquist and Vennum handles legal issues regarding my estate. Very good people. Leonard Linquist, one of the founder (now deceased, sadly) was a dear family friend and a great, great man.

  26. To quote the full article:

    “I wrote that when I was in the position of sitting where the staff is now sitting, and feeling a little bit frustrated that I really wasn’t understanding completely what the judicial nominee in front of me meant and what she thought,” Kagan said, referring to her time on Biden’s staff in 1993 when he was chairman of the Senate Judiciary Committee.


    Um… her original position still sounds more reasonable given this explanation.

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