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May 12, 2010

Cross Case In Supreme Court Was Kagan's First-Ever Win

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The U.S. Supreme Court's ruling last month that a cross on federal land in the Mojave Desert could remain standing while lower courts look again at the legal issues marked a first-ever court victory for U.S. Solicitor General Elena Kagan.

The case was one of six the nominee to replace Justice John Paul Stevens has argued while serving as solicitor general. Before her appointment to that position in March 2009, she had never argued a case in court. Conservative critics have already pointed to her lack of practical legal experience as an issue that Republican senators should probe during her confirmation hearing.

So far the Supreme Court has decided just two of the cases Kagan argued and only the cross case went in her favor. The other was the major campaign finance case in which the court lifted restrictions on independent corporate expenditure during campaigns. Citizens United v. FEC, 2010 DAR 949.

The Mojave cross hit the headlines again this week when it mysteriously disappeared.

Representing the government, Kagan argued that the cross, built to honor World War I veterans, should be allowed to remain in place despite objections from the American Civil Liberties Union that it violated the Establishment Clause of the First Amendment, which prevents the government from endorsing one religion over another. The court's conservative justices sided with Kagan in a 5-4 ruling in which Stevens wrote a dissenting opinion. Salazar v. Buono, 2010 DJDAR 6249.

The majority of the justices agreed that a lower court judge should get a second chance to decide whether the constitutional violation was cured when Congress ordered that the site on which the cross stood be transferred to private ownership.

The controversy began when former National Park Service employee Frank Buono filed suit to challenge the cross in 2001. A year later, Judge Robert J. Timlin of the Central District of California agreed that there was an Establishment Clause violation. But the issue before the Supreme Court focused on a later decision in which Timlin ruled that the 2004 law transferring the land into private ownership was "an attempt by the government to evade the permanent injunction." The 9th U.S. Circuit Court of Appeals, in a September 2007 opinion, agreed with Timlin.

The Supreme Court agreed to hear the case in February 2009, after President Barack Obama took office but before Kagan's confirmation as solicitor general. The Bush administration had filed the petition appealing the 9th Circuit ruling.

In her institutional role as solicitor general, Kagan was obliged to defend the land transfer statute, a point that Buono's lawyer, Peter J. Eliasberg of the ACLU of Southern California, conceded.

But he was disappointed that Kagan did not ease back as much as she could have on an argument made by the Bush administration that Buono didn't have standing to sue in the first place because he was a Christian himself and did not live near the cross.

"It wasn't an institutional obligation" to make the standing argument, Eliasberg said Tuesday. "But in the end it didn't matter."

Eliasberg noted that Kagan's job was merely to defend the congressional statute that transferred the land and not to take a position on the underlying question of whether religious symbols should be allowed on federal land.

During the oral argument in October, Kagan faced as many tough questions from the liberal justices as she did from the conservatives, with Justices Ruth Bader Ginsburg and Sonia Sotomayor among the most vocal. Most of Kagan's time was taken up with the procedural questions, prompting Chief Justice John G. Roberts Jr. to joke at one point that "before your time expires, we would like to spend a couple of minutes on the merits."

Lawyers who represented the veterans were muted in their praise of Kagan's approach to the case, despite the outcome.

Kelly Shackelford, president of Plano, Texas-based Liberty Institute, a conservative legal group that represents the Veterans of Foreign Wars in the case, said he would have preferred it if the Obama administration had made forceful arguments in defense of veterans' memorials and the symbolic use of crosses.

"We felt there were certain things that weren't being argued," he said.

As for Kagan's performance, Shackelford downplayed the importance of oral argument, saying that "the Supreme Court will do what it's going to do" regardless of what lawyers argue.

But, he conceded, "the important thing is getting a victory."

Charles V. Berwanger, a partner at Gordon & Rees in San Diego, who is involved in a similar dispute over a cross on Mount Soledad in La Jolla, also minimized the importance of Kagan's involvement in the case. He represents the Mount Soledad Memorial Association, which has for years fought to save the cross in the face of Establishment Clause objections made by the ACLU.

"I don't take whatever argument she made as being indicative of her personal feelings or how she would rule as a justice," he said.

It's unclear yet whether Kagan's involvement in the case will feature during her confirmation hearing. Alan Brownstein, an expert on the First Amendment at UC Davis School of Law, said it says "virtually nothing" about where Kagan stands on the underlying issues.

But he noted that she "handled it pretty well" by seeking a narrow opinion. "It was a decision very limited in scope, which she asked for," he said.

While activists in Washington continue to delve into Kagan's record, the mystery of who stole the cross late Sunday or early Monday remains unsolved.

Henry Sandoz, who has acted as a caretaker for the cross, has already promised to rebuild it, Shackelford said. Both Shackelford and Eliasberg said they doubted the removal of the cross would have any impact on the lower court's reconsideration of the case.

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May 11, 2010

Supreme Court Nominee Braces For Deja Vu

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - U.S. Supreme Court nominee Elena Kagan knows exactly what to expect when she appears before the Senate Judiciary Committee for her confirmation hearing this summer. That's because she went through the whole process a little more than a year ago when President Barack Obama nominated her to the position of solicitor general.

Although her confirmation then was never in doubt, some Republican senators, knowing full well that she could appear before them again, previewed some of the arguments that will now come up in a more intense manner over the coming weeks.

Those same senators were quick to say Monday that they will take a different and more exacting approach to a Supreme Court nomination.

Last year, seven Republicans voted in favor of her confirmation, including two members of the Senate Judiciary Committee. She was confirmed on a 61-31 vote.

During that confirmation hearing, Republicans focused on Kagan's role, as dean of Harvard Law School, in an attempt by some law schools to prevent the military from recruiting on campuses in protest of the military's "don't ask, don't tell" policy on homosexuality in the armed forces. They also raised her lack of practical legal experience prior to her service as solicitor general and whether memos she wrote to Justice Thurgood Marshall while clerking for him in the 1987-88 term are indicative of her ideology.

Legal and political experts expect those issues to be raised again.

Kagan, 50, was seen as the frontrunner to replace Stevens after the 90-year-old justice announced his retirement in April.

Kagan has served as solicitor general since March 2009. Prior to that she was dean of Harvard Law School for six years, a period during which she was acclaimed for breaching ideological splits among faculty members.

It was in February 2009 that Kagan appeared for her first confirmation hearing before the Senate Judiciary Committee. Although the hearing was not confrontational, Republican senators did ask the nominee some searching questions.

Her position on "don't ask, don't tell" was perhaps the most controversial issue raised. As part of the campaign against the policy, she joined a brief in a high-profile case that ended up before the Supreme Court.

In that case, several universities opposed a law allowing the federal government to withhold funding from schools that barred military recruiters from working on their campuses in protest of the "don't ask, don't tell" policy. The Supreme Court unanimously rejected the challenge in a 2006 decision. Rumsfeld v. FAIR, 126 S. Ct. 1297.

During the hearing, Sen. Jon Kyl, R-Ariz., asked Kagan whether she would have energetically defended a statute with which she disagreed if she had been solicitor general at the time.

"I absolutely would have, senator," Kagan said.

In such circumstances, "there is a clear obligation upon the solicitor general to defend a statute," she said.

Kagan's role in the dispute over "don't ask, don't tell" already has been raised by Republican activists and conservative activists reacting to her nomination to the court.

Curt Levey, executive director of the Committee for Justice, said Monday that it raises questions about where Kagan stands on gay marriage, an issue that could come before the Supreme Court in the coming years.

Americans, he said, "should be worried about this nominee's views on gay rights."

Experts added that her opposition to allowing military recruiters on campus could be used to attack her patriotism and paint her as an out-of-touch liberal elitist.

Conservatives also have started repeating earlier criticisms about Kagan's lack of substantive legal experience. Before being appointed solicitor general, Kagan had not argued a case before the Supreme Court, or any other court, and spent just two years, from 1989 to 1991, in private practice with Williams & Connolly in Washington.

Sen. Tom Coburn, R-Okla., who is a medical doctor, focused his questioning on that issue during the 2009 hearing.

"Of all I've read, the only real criticism that you've had is that you've not been a litigant in the past," he said. "And as a physician, you know, I don't send patients to the professors at the university unless they're the expert in the field who have actually practiced rather than just taught."

Kagan responded that she brought "a lifetime of learning and study of law" including "constitutional and administrative law issues that form the core of the court's docket."

She also stressed her "communications skills" that she said, tongue-in-cheek, "made me, I'm just going to say it, a famously excellent teacher."

Coburn eventually voted in favor of confirmation.

Those arguments about lack of experience could find new life, since Kagan is trying to become the first Supreme Court justice without previous judicial experience in nearly 40 years.

Critics also have blasted her for her lack of scholarship during her years as a professor and dean, when she produced just a handful of written papers.

It's not just conservatives who are worried about the lack of a paper trail indicating where Kagan stands on key issues.

Prior to her nomination, Kagan received some criticism from the left, with some worried that she may not be liberal enough. During the hearing, both Democrats and Republicans are likely to probe her on where she stands on certain social issues, including abortion.

Nancy Keenan, president of NARAL Pro-Choice America, said Monday that her group would "look forward to learning more about her views" on abortion.

But supporters inside and outside the White House say talk of Kagan's scant resume is an exaggeration. They point to her academic career and four-year stint in the Clinton White House from 1995 to 1999, as Obama did in announcing her nomination Monday.

By 1999, she was sufficiently well-regarded for Clinton to nominate her to the U.S. Court of Appeals for the District of Columbia Circuit but the Republican-led Senate didn't move to confirm her appointment.

Her legal career began with a clerkship with D.C. Circuit Judge Abner Mikva before she clerked for Justice Marshall, whom she has described as "the greatest lawyer of the 20th century."

Kagan obtained her undergraduate degree from Princeton in 1981 before attending Harvard Law School. She also studied at Oxford University.

During the 2009 confirmation hearing, Kagan also was confronted with various memos she wrote while clerking for Marshall. Sen. Arlen Specter, a Republican from Pennsylvania who has now switched to the Democrats, raised one memo in particular in which Kagan said it would be "difficult" for religious groups to provide advice and care to pregnant teens "without injecting some kind of religious teaching."

Kagan promptly disavowed the contents of the memo, saying that when she reviewed it just before the hearing, "I thought, 'That is the dumbest thing I've ever heard'."

Republican senators who voted in support of Kagan's confirmation as solicitor general quickly clarified their position Monday, making it clear that an appointment to the Supreme Court is a different scenario. Among them was Kyl.

"As I made clear when I supported her confirmation as solicitor general, a temporary political appointment is far different than a lifetime appointment to the Supreme Court," the Arizona senator said in a statement.

Although a filibuster, which requires 40 votes, is not expected, Democrats now have 59 seats in the Senate compared with 60 last year following the election victory of Republican Scott Brown in Massachusetts in January.

Among senators on the judiciary committee, it is perhaps Specter who finds himself in the strangest position. At the time of Kagan's first hearing, he was the ranking Republican on the committee and eventually voted against her nomination on the grounds that she wasn't forthcoming enough.

But in April 2009, he switched to the Democrats and will now be under pressure to support Kagan's confirmation.

Specter said Monday he has "an open mind" about the latest nomination and said he hoped she would "address important questions" about such issues as executive power, abortion and warrantless wiretapping.

The confirmation hearing likely will be held some time before the Senate recesses for the summer.

As for Kagan herself, she is likely regretting remarks she made in a 1995 University of Chicago Law Review article called "Confirmation Messes."

She wrote then that nominees should have the chance to elaborate on their legal theories when they testify.

"When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public," she wrote.

At last year's hearing, Kagan was quick to distance herself from that sentiment. "I'm not sure if, sitting here now, I would agree with that statement," she said.

Still, Ohio State University political scientist Elliot E. Slotnick predicted Republican senators would "hammer her with her words" critiquing the confirmation process.

"The absence of that written record," he added, "coupled with what she's said about vacuousness of Senate hearings and the performance of candidates creates a perfect storm for her to be more forthcoming in her hearing."

Staff Writer Robert Iafolla contributed reporting.

DAILY JOURNAL NEWSWIRE ARTICLE
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© 2010 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

May 7, 2010

Call for Court Consensus Builder May Be Overrated;
Some Say Obama Should Focus on Intellect And Judicial Philosophy

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The Obama administration says it is keen to appoint a consensus-builder to replace retiring Justice John Paul Stevens on the U.S. Supreme Court, but those familiar with the internal workings of the court say the administration may be overstating the importance of such skills.

As recently as Wednesday, White House adviser David Axelrod told the Associated Press that President Barack Obama is looking for "that kind of spark and leadership" that Stevens has in picking his replacement. Axelrod described the court as a "consensual body."

But former Supreme Court clerks say that characterization doesn't chime with either the way Stevens operates or the reality of the court's decision-making process.

Those with experience at the court say Stevens' skill as a builder of majorities is somewhat exaggerated. Supreme Court justices do not change their votes based on charm alone, they say.

In that light, former clerks add, Obama can afford to focus more on intellectual ability and judicial philosophy and less on political skills.

The White House is nearing the end of the selection process with an announcement due within days. Stevens will retire at the end of the court's term in June. Those interviewed so far are Judge Diane P. Wood of the 7th U.S. Circuit Court of Appeals, Solicitor General Elena Kagan, D.C. Circuit Judge Merrick Garland and the 9th Circuit's Sidney R. Thomas.

Vince Chhabria, deputy city attorney at the San Francisco City Attorney's Office who clerked for Justice Stephen G. Breyer in the 2001-2002 term, said he believes the supposed need for a strong justice who can marshal the liberal wing of the court and win over some of the conservative justices is largely misguided.

"I think the emphasis on consensus building is a bit overblown," he said.

The raves over Stevens' tactical savvy, especially concerning his supposed influence over regular swing vote Anthony M. Kennedy are an example of that perception of the retiring justice, Chhabria added.

But, Chhabria noted, "it does not take a rocket scientist or a brilliant tactician to realize that if you want to solidify your majority, you assign the opinion to the justice whose vote is most in doubt."

That is exactly what happens in many cases in which Kennedy is the key fifth vote for the liberal justices, he added. As the senior associate justice, Stevens gets to pick who writes the opinion if the chief justice is not also in the majority.

Joseph Thai, a former Stevens clerk who is now a professor at the University of Oklahoma College of Law, agreed that in the debate over consensus-building, "the importance is over-emphasized."

He recalled that when he worked for Stevens in the 2000-2001 term, the justice did not have personal meetings with the other justices, talk to them much by phone, or engage in any horse-trading.

Stevens' influence came via his seniority and his draft opinions in which he was able to offer arguments that would appeal to enough justices to get a majority, Thai said.

Stevens was not a deal-making politician, like White House Chief of Staff Rahm Emanuel, he added.

Paul Watford, a partner at Munger Tolles & Olson in Los Angeles who clerked for Justice Ruth Bader Ginsburg in the 1995-1996 term, has a similar impression of Stevens.

He does not consider Stevens to be a coalition builder in the same vein as William J. Brennan Jr. or Chief Justice Earl Warren, who were known for their ability to influence their colleagues during their time on the court.

As for whoever replaces Stevens, it would be possible to "count on one hand" the number of cases on which a junior justice could have a major influence, Watford added. That's because the new justice gets to speak and vote last at the justices' conferences and doesn't get to assign opinions.

"They get the dogs," Thai said. "They don't get the big opinions."

Thai conceded, though, that Solicitor General Elena Kagan's experience dealing with faculty when she served as dean of Harvard Law School could at least give her "a good skill set" that she may be able to make use of in the long term. Wood has also won praise for her ability to win over conservative colleagues on the 7th Circuit.

One factor the White House would be right to consider when considering who should replace Stevens is the risk of alienating Justice Kennedy by picking someone too outspoken or ideologically driven, Watford said.

Of the various short-listed contenders, "none of them raise that concern," Watford said.

Court-watchers have pointed out in the past that retired Justice Sandra Day O'Connor might have sided with the conservatives more during her time on the bench if justices appointed after her like Justice Antonin Scalia had been more flexible.

Like the former clerks, liberal advocacy groups hoping to influence the White House's thinking on the nominee are also less concerned about the future justice's political skills than they are about other qualities.

Marge Baker, vice president of People for the American Way said that her organization is most keen on a justice who has "a common-sense understanding of the law."

How that justice interacts with his or her colleagues would be important but not the key concern, she added.

"You certainly don't want someone who's just a nice guy," Baker said.

Irrespective of whether the White House actually wants a consensus-builder on the court, Elliott Slotnick, a political science professor at Ohio State University, said that the use of the term helps lay the groundwork for the confirmation fight that lies ahead.

The White House is using "the rhetoric of moderation" to try and send the message that whoever the president picks will not be out of the mainstream and should not be filibustered, he added.