Commentary Magazine


Topic: clerk

The Supreme Court Isn’t the Harvard Law School Faculty

This report repeats the idea that Elena Kagan was nominated primarily to sway Justice Kennedy to the liberal side of those tricky 5-4 decisions. But if so, does this make any sense? That notion assumes that the Court operates like the Harvard Law School faculty, where nice words, dinner parties, back-slapping, and not revealing her own views served Kagan well. But that’s not how the Court operates:

Tom Goldstein, a Supreme Court lawyer at Akin Gump and author of the widely read SCOTUS Blog, says she has exhibited an “extraordinarily — almost artistically — careful” avoidance of public positions on any matters she might face as a Justice. “I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade,” Goldstein wrote.

And even if she did have well-established positions, they’d be nothing compared to Kennedy’s. “Justice Kennedy has been on the bench for 40-some years now, including his time on the Ninth Circuit,” says the former clerk. “It’s particularly unlikely that he’s going to fall under the sway of a new judge who’s never been on the court.”

This convoluted argument suggests just how farcical the notion is that a pleasing personality is a satisfactory substitute for developed legal scholarship and brilliant writing (neither of which Kagan has yet demonstrated):

Kagan supporters point to the fact that she convinced some hard-line Republicans to vote for her when she was nominated to be Solicitor General, most notably Jon Kyl of Arizona, the behind-the-scenes GOP power on the Judiciary Committee. Though he’s unlikely to vote for her for the Supreme Court, her ability to win him over, which she did in the course of a lengthy conversation in his office during the nomination process, counts for something.

Huh? So getting Kyl to vote for her once — but not for the Supreme Court — shows she can lure Kennedy into the liberal camp on knotty issues of constitutional and statutory interpretation, and do so better than did Justice Stevens, a man who had been on the bench for decades? It’s a bit absurd. If the Obama team wanted a smart, accomplished jurist who has shown the ability to go toe-to-toe with and persuade conservative judges, Diane Wood might have been a more apt pick. But instead Obama went with someone much like himself, who, come to think of it, hasn’t really been able to persuade conservatives or moderates about the wisdom of his positions.

This report repeats the idea that Elena Kagan was nominated primarily to sway Justice Kennedy to the liberal side of those tricky 5-4 decisions. But if so, does this make any sense? That notion assumes that the Court operates like the Harvard Law School faculty, where nice words, dinner parties, back-slapping, and not revealing her own views served Kagan well. But that’s not how the Court operates:

Tom Goldstein, a Supreme Court lawyer at Akin Gump and author of the widely read SCOTUS Blog, says she has exhibited an “extraordinarily — almost artistically — careful” avoidance of public positions on any matters she might face as a Justice. “I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade,” Goldstein wrote.

And even if she did have well-established positions, they’d be nothing compared to Kennedy’s. “Justice Kennedy has been on the bench for 40-some years now, including his time on the Ninth Circuit,” says the former clerk. “It’s particularly unlikely that he’s going to fall under the sway of a new judge who’s never been on the court.”

This convoluted argument suggests just how farcical the notion is that a pleasing personality is a satisfactory substitute for developed legal scholarship and brilliant writing (neither of which Kagan has yet demonstrated):

Kagan supporters point to the fact that she convinced some hard-line Republicans to vote for her when she was nominated to be Solicitor General, most notably Jon Kyl of Arizona, the behind-the-scenes GOP power on the Judiciary Committee. Though he’s unlikely to vote for her for the Supreme Court, her ability to win him over, which she did in the course of a lengthy conversation in his office during the nomination process, counts for something.

Huh? So getting Kyl to vote for her once — but not for the Supreme Court — shows she can lure Kennedy into the liberal camp on knotty issues of constitutional and statutory interpretation, and do so better than did Justice Stevens, a man who had been on the bench for decades? It’s a bit absurd. If the Obama team wanted a smart, accomplished jurist who has shown the ability to go toe-to-toe with and persuade conservative judges, Diane Wood might have been a more apt pick. But instead Obama went with someone much like himself, who, come to think of it, hasn’t really been able to persuade conservatives or moderates about the wisdom of his positions.

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Flotsam and Jetsam

In the second part of a fascinating interview (which should be read in full), former Israeli Defense Minister and ambassador to the U.S. Moshe Arens posits that Bibi has been too accommodating: “What he has been doing, however, is apologizing to the Obama administration, which, as part of its maneuver to pressure Israel, declared it was insulted by the announcement that 1,600 housing units were being added to a Jerusalem neighborhood. The whole thing is really ludicrous. It all had to do with some clerk on the local planning commission and a meeting that happened to fall on the day of Vice President Joe Biden’s visit. But the Netanyahu government decided to play along and say, ‘You’re insulted? OK, we apologize.’ It could have said, ‘You’re not insulted. There’s no reason to be insulted. You don’t know what you’re talking about.’”

Sen. Jon Kyl declares that the emperor has no clothes: “The greatest threat of nuclear proliferation and terrorism comes from Iran, which has for years supported terrorists and is growing closer and closer to having a nuclear weapons capability. The summit, with 42 heads of state in Washington, should have been an opportunity to develop a consensus to deal with the greatest threat to our security: an Iran with a nuclear weapons capability. Despite the talk at the security summit, it appears we are no closer to tough sanctions or a meaningful Security Council resolution today, seven months after the President said that the regime would face sanctions.”

But don’t you feel safer — all nuclear material is going to be secured in four years. Who tells Ahmadinejad?

Meanwhile, proving Kyl right, we learn that a whole lot of nothing was accomplished: “President Barack Obama acknowledged on Tuesday that, despite his full-court press for tough sanctions aimed at persuading Iran to abandon its suspected nuclear weapons program, he could not promise that China and other major powers would go along. … ‘Sanctions are not a magic wand. … What sanctions can do … is to hopefully change the calculus of a country like Iran.’” And if not, we learn to live with a nuclear-armed Islamic revolutionary state sponsor of terror, you see.

Two senators who were not going to be nominated declare they aren’t interested in a Supreme Court nod. (Me neither!) “Sens. Amy Klobuchar (D-Minn.) and Sheldon Whitehouse (D-R.I.), two senators with significant legal backgrounds who have been mentioned as possible Supreme Court nominees, took themselves out of the running Tuesday.”

Dana Milbank has a fit when he learns this isn’t the “most transparent administration in history.”

Joe Sestak is within the margin of error of Arlen Specter in the Pennsylvania primary. Maybe the whole party switcheroo wasn’t a good idea after all.

The “most ethical Congress ever” wasn’t: “Just three months after Eric Massa was elected to Congress, his young male employees on Capitol Hill began complaining to supervisors that the lawmaker was making aggressive, sexual overtures toward them, according to new interviews and internal documents. The senior staff, one of whom said he heard Massa (D-N.Y.) making lewd remarks to young staffers, tried to manage the problem internally. But reports of Massa’s inappropriate behavior continued, leaving junior workers feeling helpless, according to victims, other staffers and sources close to an ongoing House ethics investigation. … This account, drawn from more than two dozen interviews and internal documents, shows that aides were accusing the 50-year-old married lawmaker of far more egregious behavior than previously known.”

In the second part of a fascinating interview (which should be read in full), former Israeli Defense Minister and ambassador to the U.S. Moshe Arens posits that Bibi has been too accommodating: “What he has been doing, however, is apologizing to the Obama administration, which, as part of its maneuver to pressure Israel, declared it was insulted by the announcement that 1,600 housing units were being added to a Jerusalem neighborhood. The whole thing is really ludicrous. It all had to do with some clerk on the local planning commission and a meeting that happened to fall on the day of Vice President Joe Biden’s visit. But the Netanyahu government decided to play along and say, ‘You’re insulted? OK, we apologize.’ It could have said, ‘You’re not insulted. There’s no reason to be insulted. You don’t know what you’re talking about.’”

Sen. Jon Kyl declares that the emperor has no clothes: “The greatest threat of nuclear proliferation and terrorism comes from Iran, which has for years supported terrorists and is growing closer and closer to having a nuclear weapons capability. The summit, with 42 heads of state in Washington, should have been an opportunity to develop a consensus to deal with the greatest threat to our security: an Iran with a nuclear weapons capability. Despite the talk at the security summit, it appears we are no closer to tough sanctions or a meaningful Security Council resolution today, seven months after the President said that the regime would face sanctions.”

But don’t you feel safer — all nuclear material is going to be secured in four years. Who tells Ahmadinejad?

Meanwhile, proving Kyl right, we learn that a whole lot of nothing was accomplished: “President Barack Obama acknowledged on Tuesday that, despite his full-court press for tough sanctions aimed at persuading Iran to abandon its suspected nuclear weapons program, he could not promise that China and other major powers would go along. … ‘Sanctions are not a magic wand. … What sanctions can do … is to hopefully change the calculus of a country like Iran.’” And if not, we learn to live with a nuclear-armed Islamic revolutionary state sponsor of terror, you see.

Two senators who were not going to be nominated declare they aren’t interested in a Supreme Court nod. (Me neither!) “Sens. Amy Klobuchar (D-Minn.) and Sheldon Whitehouse (D-R.I.), two senators with significant legal backgrounds who have been mentioned as possible Supreme Court nominees, took themselves out of the running Tuesday.”

Dana Milbank has a fit when he learns this isn’t the “most transparent administration in history.”

Joe Sestak is within the margin of error of Arlen Specter in the Pennsylvania primary. Maybe the whole party switcheroo wasn’t a good idea after all.

The “most ethical Congress ever” wasn’t: “Just three months after Eric Massa was elected to Congress, his young male employees on Capitol Hill began complaining to supervisors that the lawmaker was making aggressive, sexual overtures toward them, according to new interviews and internal documents. The senior staff, one of whom said he heard Massa (D-N.Y.) making lewd remarks to young staffers, tried to manage the problem internally. But reports of Massa’s inappropriate behavior continued, leaving junior workers feeling helpless, according to victims, other staffers and sources close to an ongoing House ethics investigation. … This account, drawn from more than two dozen interviews and internal documents, shows that aides were accusing the 50-year-old married lawmaker of far more egregious behavior than previously known.”

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