Wednesday, June 02, 2010

Weekend Assignment #318: The Great Unknown

Weekend Assignment #318: The SCOTUS Choice

Recently, Supreme Court Justice John Paul Stevens announced that he will retire, at the end of his term, later this year, leaving the position open to be filled by President Obama. As you know, Obama has chosen Elena Kagan as his nominee. I would like to hear your thoughts about this. Good choice? Bad choice? Indifferent? Who would you like to see appointed to the high court? Are you happy with the justices currently serving, or do you believe they leave something to be desired? Tell me what you think!

Extra Credit: Write one paragraph about a supreme court decision you felt strongly about either positively or negatively.

I watched coverage of Elena Kagan's nomination on the day, and a few Comedy Central pieces about her as well. Tonight I did some Googling and some reading, and even founds a few articles she wrote as a Harvard professor, which I might or might not be able to access from the University of Phoenix online libraries (probably not):

Representative Publications

  • Kagan, Elena. "Presidential Administration," 114 Harvard Law Review 2245 (2001).
    Full text: HEIN (Harvard Users) || HEIN || LEXIS || WESTLAW
  • Kagan, Elena & David Barron. "Chevron's Nondelegation Doctrine," 2001 Supreme Court Review 201 (2001).
    Full text: LEXIS || WESTLAW
  • Kagan, Elena. "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine," 63 University of Chicago Law Review 413 (1996).
    Full text: HEIN (Harvard Users) || HEIN || LEXIS || WESTLAW 

The upshot of my reading and tv viewing is that because she has never been a judge and has expressed very little by way of personal legal opinion over the years, she's a largely unknown quantity in terms of her legal and constitutional views. She clerked for Justice Thurgood Marshall of the U.S. Supreme Court in 1988, which is something in her favor in my book. On the other hand, she has argued in favor of Monsanto's genetically modified alfalfa and, more troublingly, indefinite detention without trial in certain circumstances (e.g. for a terrorist captured in a non battlefield situation). These are very much not to the good, in my opinion. But are these her personal opinions, or was it merely her job to espouse them on behalf of her employers (Monsanto and the government) in each circumstance? That is not clear to me, and it makes a difference.

There is a claim that she's a consensus builder, which could be good, and she seems likely to sail through her confirmation, because Republicans have been hard-pressed to find any dirt on her. Yes, good, fine; but what kind of consensus can she build on the Supreme Court as it stands now? President Obama may know, but I certainly don't. Nobody else seems to know, either. It could be that this bright legal mind will help balance out the right-leaning court, but there's precious little indication of that. My worry is that President Obama has gone for a safe, inoffensive choice here, rather than one calculated to start undoing the damage caused by the increasingly activist conservative court.

For example, apparently the Supreme Court substantially weakened the Miranda rights of accused suspects today, ruling that the suspect must specifically tell police that they are exercising the right to remain silent, and that even a one-word answer that self-incriminates results in waving those rights completely. Very, very dangerous stuff, this, opening the door for innocent people to be badgered into false confessions - and yes, it does happen.

On balance, I don't have a strong opinion about Elena Kagan. I assume she is as brilliant and as qualified as the President and others claim, and I hope the President knows what he's doing in nominating her. It will all depend on the stuff we don't know about her yet. Time will tell - it always does.


P.S. Meanwhile, I personally have to be in federal court five hours from now. I had jury duty today, and I forgot to call the phone number. So I'll be showing up a day late - yipes! Sorry!

No comments: