Commentary Magazine


Topic: solicitor general

Kagan’s Political “Scrawling” Catches Up with Her

Yuval Levin provides a useful summary of perhaps the only revelation — and potential deal-breaker — in the Elena Kagan confirmation hearings. Yuval explains:

It seems that the most important statement in the famous position paper of the American College of Obstetricians and Gynecologists—a 1996 document that was central to the case of partial-birth-abortion defenders for the subsequent decade and played a major role in a number of court cases and political battles—was drafted not by an impartial committee of physicians, as both ACOG and the pro-abortion lobby claimed for years, but by Elena Kagan, who was then the deputy assistant to the president for domestic policy.

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.” … 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.

This, as Yuval points out, is not only a shocking “violation of the boundary between scientific expertise and politics”; it is also an outright deception that was subsequently used in litigation by partial-birth-abortion defenders. The former deputy attorney general who defended the partial-birth-abortion ban during the Bush administration, Shannen Coffin, brought the story to light. He reminds us: “U.S. District Court Judge Richard Kopf, one of the three federal judges that issued orders enjoining the federal ban (later overturned by the Supreme Court), devoted more than 15 pages of his lengthy opinion to ACOG’s policy statement and the integrity of the process that led to it.” Had the judge known it was not the work of scientific gurus but that of a Clinton staffer (“nothing more than the political scrawling of a White House appointee”), one can imagine he wouldn’t have spent a sentence, let alone 15 pages, on it.

Some senator should have the wherewithal to take this on and require that Kagan explain herself. Not only is it, if accurate, a disqualifying episode for a Supreme Court justice; it is grounds for a solicitor general to step down. And her failure to advise the courts — which believed they were relying on neutral, expert testimony — constitutes a significant ethical breach.

Yuval Levin provides a useful summary of perhaps the only revelation — and potential deal-breaker — in the Elena Kagan confirmation hearings. Yuval explains:

It seems that the most important statement in the famous position paper of the American College of Obstetricians and Gynecologists—a 1996 document that was central to the case of partial-birth-abortion defenders for the subsequent decade and played a major role in a number of court cases and political battles—was drafted not by an impartial committee of physicians, as both ACOG and the pro-abortion lobby claimed for years, but by Elena Kagan, who was then the deputy assistant to the president for domestic policy.

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.” … 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.

This, as Yuval points out, is not only a shocking “violation of the boundary between scientific expertise and politics”; it is also an outright deception that was subsequently used in litigation by partial-birth-abortion defenders. The former deputy attorney general who defended the partial-birth-abortion ban during the Bush administration, Shannen Coffin, brought the story to light. He reminds us: “U.S. District Court Judge Richard Kopf, one of the three federal judges that issued orders enjoining the federal ban (later overturned by the Supreme Court), devoted more than 15 pages of his lengthy opinion to ACOG’s policy statement and the integrity of the process that led to it.” Had the judge known it was not the work of scientific gurus but that of a Clinton staffer (“nothing more than the political scrawling of a White House appointee”), one can imagine he wouldn’t have spent a sentence, let alone 15 pages, on it.

Some senator should have the wherewithal to take this on and require that Kagan explain herself. Not only is it, if accurate, a disqualifying episode for a Supreme Court justice; it is grounds for a solicitor general to step down. And her failure to advise the courts — which believed they were relying on neutral, expert testimony — constitutes a significant ethical breach.

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Flotsam and Jetsam

Every Supreme Court nominee is an advocate of judicial restraint, but not all justices are. Elena Kagan: “[T]he Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one – properly deferential to the decisions of the American people and their elected representatives. … That process is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests. The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people.” Like the choice to insist that military recruiters be given access to campuses?

Every Supreme Court confirmation hearing now seems like a charade. As Tom Goldstein noted: “There is nothing in her opening statement that would distinguish her from John Roberts or Sam Alito.” Except the fact that they really believed what they were saying.

By virtually every standard, Kagan is underqualified for the job: “Solicitor-General Elena Kagan practiced law at the Williams & Connolly firm here in the nation’s capitol for only two years, a much briefer stint than the 20.5 year average of other Supreme Court Justices who had no prior judicial tenure before joining the nation’s highest court.”

Not every case is as important as McDonald v. Chicago. Steven Calabresi: “The McDonald holding will lead to a slew of additional challenges against state and municipal laws around the country regulating or restricting the firearms rights of law-abiding citizens. Justice Alito’s opinion is also of tremendous importance because it is based on the premise that substantive due process rights must be deeply rooted in American history and tradition before the Supreme Court can protect them.”

Every new utterance by Peter Beinart is wackier than the last. “Even as Republicans claim political momentum, the country is in the midst of a major shift leftward when it comes to the role of government.” Yeah, right. Well, if every poll on the subject is wrong, I suppose this could be true.

Obama’s “reset” means giving in to every Russian demand without extracting anything in return. David Christy thinks we shouldn’t “feed the Russian bear” when it comes to entry into the WTO: “Everyone is focused on timing, but the issue is not whether or when Russia should join, but the terms. The fact of the matter is that Russia has yet to accept a set of commitments that justifies entry into the WTO. Terms that are too soft might have a negative impact on the WTO, Russia’s trading partners, and, in the long term, Russia itself.”

Every time someone calls Robert Byrd legendary, remember: “He participated in a filibuster of the 1964 Civil Rights Act and was the only member of the Senate to vote against the confirmation of both Thurgood Marshall and Clarence Thomas to the Supreme Court.”

Every Supreme Court nominee is an advocate of judicial restraint, but not all justices are. Elena Kagan: “[T]he Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one – properly deferential to the decisions of the American people and their elected representatives. … That process is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests. The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people.” Like the choice to insist that military recruiters be given access to campuses?

Every Supreme Court confirmation hearing now seems like a charade. As Tom Goldstein noted: “There is nothing in her opening statement that would distinguish her from John Roberts or Sam Alito.” Except the fact that they really believed what they were saying.

By virtually every standard, Kagan is underqualified for the job: “Solicitor-General Elena Kagan practiced law at the Williams & Connolly firm here in the nation’s capitol for only two years, a much briefer stint than the 20.5 year average of other Supreme Court Justices who had no prior judicial tenure before joining the nation’s highest court.”

Not every case is as important as McDonald v. Chicago. Steven Calabresi: “The McDonald holding will lead to a slew of additional challenges against state and municipal laws around the country regulating or restricting the firearms rights of law-abiding citizens. Justice Alito’s opinion is also of tremendous importance because it is based on the premise that substantive due process rights must be deeply rooted in American history and tradition before the Supreme Court can protect them.”

Every new utterance by Peter Beinart is wackier than the last. “Even as Republicans claim political momentum, the country is in the midst of a major shift leftward when it comes to the role of government.” Yeah, right. Well, if every poll on the subject is wrong, I suppose this could be true.

Obama’s “reset” means giving in to every Russian demand without extracting anything in return. David Christy thinks we shouldn’t “feed the Russian bear” when it comes to entry into the WTO: “Everyone is focused on timing, but the issue is not whether or when Russia should join, but the terms. The fact of the matter is that Russia has yet to accept a set of commitments that justifies entry into the WTO. Terms that are too soft might have a negative impact on the WTO, Russia’s trading partners, and, in the long term, Russia itself.”

Every time someone calls Robert Byrd legendary, remember: “He participated in a filibuster of the 1964 Civil Rights Act and was the only member of the Senate to vote against the confirmation of both Thurgood Marshall and Clarence Thomas to the Supreme Court.”

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Did Obama Lose a Vote for Kagan by Stiffing Specter?

For those who doubted that there is life after death — at least after political death — according to the Daily Beast, Arlen Specter may use his last months in office to exact revenge on President Obama for stiffing him during the last days of his ill-fated attempt to win the Democratic nomination to retain his Senate seat.

The Beast’s Benjamin Sarlin speculates that the always-shifty Specter may get even with Obama for failing to show up as promised at rallies in Pennsylvania in the waning days of the primary to boost his candidacy. After disastrous appearances boosting presidential favorites in Massachusetts, New Jersey, and Virginia in the past year, Obama wisely chose to avoid a repeat of those fiascos. All this leads some Specter associates quoted by Sarlin to think that the always-cranky senator may turn on Obama and shift to the right on some votes in the seven months left to him in the upper chamber.

The first victim of Snarlin’ Arlen’s payback could be Obama’s Supreme Court pick Elena Kagan, whose nomination helped remind Pennsylvania Democrats of Specter’s GOP past, since he voted against her confirmation to the post of solicitor general only last year. Freed from the need to appease liberal Democratic voters — who wound up flocking to successful challenger Rep. Joe Sestak anyway — former Specter staffers Roger Stone and Dave Urban both say they’d bet the senator will find a reason to vote against her again, if for no other reason than to poke the White House in the eye.

But the problem with this theory is the same as any other prediction of Specter’s behavior. Anyone who tries to figure out how he will come down on an issue using any rationale other than Specter’s self-interest is bound to fail. Moreover, while it makes sense to think that the 80-year-old Specter will now fade quietly into the night after what amounts to a rejection by both parties in the past year (since the only reason he fled to the Democrats was because he knew he would be beaten in the GOP primary by Republican Pat Toomey), it’s hard to imagine how a man so addicted to the prestige and power of public office will adjust to private life. So it is just as likely that Specter may hope that a few more months as a loyal Democrat, including swallowing the bitter pill of campaigning for Sestak in the general election, will earn him something from Obama after January.

While the notion of Obama’s giving him any sort of post may be a fantasy, perhaps a man who loved foreign travel on the government’s tab as much as Specter did harbors hopes of doing so again in some capacity other than that of senator. Given his long love affair with the Assad regime in Syria, Specter may even dream of some involvement in the Middle East on behalf of Obama. Of course, Obama would have to be crazy to trust Specter in such a capacity (or any capacity, for that matter), but as tempting as revenge for his last-minute betrayal by Obama may be, the senator’s ambition to continue his career in some way might be enough to keep him in line. If Specter sticks to his pre-primary pose as a loyal supporter of Obama by voting for Kagan or working hard for Sestak, whose poor record on Israel was trashed by his own backers, then it may be that the senator hopes that we haven’t heard the last of him.

For those who doubted that there is life after death — at least after political death — according to the Daily Beast, Arlen Specter may use his last months in office to exact revenge on President Obama for stiffing him during the last days of his ill-fated attempt to win the Democratic nomination to retain his Senate seat.

The Beast’s Benjamin Sarlin speculates that the always-shifty Specter may get even with Obama for failing to show up as promised at rallies in Pennsylvania in the waning days of the primary to boost his candidacy. After disastrous appearances boosting presidential favorites in Massachusetts, New Jersey, and Virginia in the past year, Obama wisely chose to avoid a repeat of those fiascos. All this leads some Specter associates quoted by Sarlin to think that the always-cranky senator may turn on Obama and shift to the right on some votes in the seven months left to him in the upper chamber.

The first victim of Snarlin’ Arlen’s payback could be Obama’s Supreme Court pick Elena Kagan, whose nomination helped remind Pennsylvania Democrats of Specter’s GOP past, since he voted against her confirmation to the post of solicitor general only last year. Freed from the need to appease liberal Democratic voters — who wound up flocking to successful challenger Rep. Joe Sestak anyway — former Specter staffers Roger Stone and Dave Urban both say they’d bet the senator will find a reason to vote against her again, if for no other reason than to poke the White House in the eye.

But the problem with this theory is the same as any other prediction of Specter’s behavior. Anyone who tries to figure out how he will come down on an issue using any rationale other than Specter’s self-interest is bound to fail. Moreover, while it makes sense to think that the 80-year-old Specter will now fade quietly into the night after what amounts to a rejection by both parties in the past year (since the only reason he fled to the Democrats was because he knew he would be beaten in the GOP primary by Republican Pat Toomey), it’s hard to imagine how a man so addicted to the prestige and power of public office will adjust to private life. So it is just as likely that Specter may hope that a few more months as a loyal Democrat, including swallowing the bitter pill of campaigning for Sestak in the general election, will earn him something from Obama after January.

While the notion of Obama’s giving him any sort of post may be a fantasy, perhaps a man who loved foreign travel on the government’s tab as much as Specter did harbors hopes of doing so again in some capacity other than that of senator. Given his long love affair with the Assad regime in Syria, Specter may even dream of some involvement in the Middle East on behalf of Obama. Of course, Obama would have to be crazy to trust Specter in such a capacity (or any capacity, for that matter), but as tempting as revenge for his last-minute betrayal by Obama may be, the senator’s ambition to continue his career in some way might be enough to keep him in line. If Specter sticks to his pre-primary pose as a loyal supporter of Obama by voting for Kagan or working hard for Sestak, whose poor record on Israel was trashed by his own backers, then it may be that the senator hopes that we haven’t heard the last of him.

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Flotsam and Jetsam

Gov. Bob McDonnell better get some decent staff. First, he leaves slavery out of a Confederate History Month proclamation, and then he hires Fred Malek without knowing that “in 1971 [he] compiled a list of Jews in the Bureau of Labor Statistics at the president’s request, an action that has been the subject of numerous articles and for which Malek has repeatedly apologized” or that Malek “recently paid a $100,000 civil fine related to his firm’s work with Connecticut’s pension fund.” Unforced errors will kill you in baseball and in politics.

Elena Kagan better reveal more about her judicial philosophy or a bunch of senators are going to oppose her nomination. After all, ”senators, interest groups and the media [are trying] to piece together a portrait of the solicitor general’s views from scraps of speeches, scholarly articles and actions as a member of two Democratic administrations. Because Kagan, 50, has never been a judge and has not published a major work since 2001, her record lacks the ‘paper trail’ that other nominees in recent years have had. But it also seems at times contradictory, or at least ambiguous.”

Obama better be willing to send more than 1,200 National Guard troops to secure the border. Not even CBS News thinks it’s enough. “Some law enforcement officials along the border said they worry that Mr. Obama will repeat Bush’s mistake by limiting the troops to support roles, such as conducting surveillance and installing lighting, rather than letting them make arrests and confront smugglers. They also believe the scale of the force — one-fifth of the size of the one sent by Bush — is too small to make a difference along the length of the 2,000-mile border.”  I’m not in favor of the Arizona immigration law, but it sure did get Obama’s attention.

Obama better pay attention to this poll: “Forty-five percent disapprove of the Obama administration’s handling of the spill while 35 percent approve.” And that’s the New York Times survey.

Obama better hope Democratic senators don’t pay attention to the polls: “A new Rasmussen Reports national telephone survey finds that 41% of U.S. voters now hold a favorable opinion of Kagan but 47% view her unfavorably, up from 43% a week ago and 39% just after President Obama announced her nomination. … With Senate hearings on Kagan’s nomination set to begin June 28, 36% of voters now favor her confirmation, but 39% are opposed. One-out-of-four (25%) are undecided.” For Democrats wanting to show their independence from Obama, why not vote no?

You better keep an eye on Chris Christie: “Governor Christie on Tuesday told a borough teacher to find another job if she did not feel she was compensated enough as he defended his state budget cuts and promoted a plan to cap annual growth in property tax collections. … ‘Your union said that is the greatest assault on public education in the history of the state,’ Christie said. ‘That’s why the union has no credibility, stupid statements like that.’” He keeps that up and they’ll be a “Draft Christie” movement in 2012.

Obama better knock off the self-pity — Americans don’t like whiners: Daniel Halper on Obama’s comment that this is the hardest year and a half of any president: “It shows his self-absorption and utter lack of a sense of history. … Obama’s whining is puerile. One does hope it’s been the toughest year and a half he’s ever had. He is the president, and it’s a job that requires a bit of work. But to treat the previous presidents with so little respect is unbecoming.” And this was the candidate with a “superior temperament.”

The Democrats better lock away Joe Biden and Richard Blumenthal: “Vice President Joe Biden on Wednesday took an unexpected dig at Democratic Senate candidate Richard Blumenthal for misstating his military service record. … ‘I didn’t serve in Vietnam. I don’t want to make a Blumenthal mistake here,’ he said according to a pool report. ‘Our attorney general from Connecticut, God love him.’” I don’t necessarily see Obama sticking with Biden in 2012, do you?

Gov. Bob McDonnell better get some decent staff. First, he leaves slavery out of a Confederate History Month proclamation, and then he hires Fred Malek without knowing that “in 1971 [he] compiled a list of Jews in the Bureau of Labor Statistics at the president’s request, an action that has been the subject of numerous articles and for which Malek has repeatedly apologized” or that Malek “recently paid a $100,000 civil fine related to his firm’s work with Connecticut’s pension fund.” Unforced errors will kill you in baseball and in politics.

Elena Kagan better reveal more about her judicial philosophy or a bunch of senators are going to oppose her nomination. After all, ”senators, interest groups and the media [are trying] to piece together a portrait of the solicitor general’s views from scraps of speeches, scholarly articles and actions as a member of two Democratic administrations. Because Kagan, 50, has never been a judge and has not published a major work since 2001, her record lacks the ‘paper trail’ that other nominees in recent years have had. But it also seems at times contradictory, or at least ambiguous.”

Obama better be willing to send more than 1,200 National Guard troops to secure the border. Not even CBS News thinks it’s enough. “Some law enforcement officials along the border said they worry that Mr. Obama will repeat Bush’s mistake by limiting the troops to support roles, such as conducting surveillance and installing lighting, rather than letting them make arrests and confront smugglers. They also believe the scale of the force — one-fifth of the size of the one sent by Bush — is too small to make a difference along the length of the 2,000-mile border.”  I’m not in favor of the Arizona immigration law, but it sure did get Obama’s attention.

Obama better pay attention to this poll: “Forty-five percent disapprove of the Obama administration’s handling of the spill while 35 percent approve.” And that’s the New York Times survey.

Obama better hope Democratic senators don’t pay attention to the polls: “A new Rasmussen Reports national telephone survey finds that 41% of U.S. voters now hold a favorable opinion of Kagan but 47% view her unfavorably, up from 43% a week ago and 39% just after President Obama announced her nomination. … With Senate hearings on Kagan’s nomination set to begin June 28, 36% of voters now favor her confirmation, but 39% are opposed. One-out-of-four (25%) are undecided.” For Democrats wanting to show their independence from Obama, why not vote no?

You better keep an eye on Chris Christie: “Governor Christie on Tuesday told a borough teacher to find another job if she did not feel she was compensated enough as he defended his state budget cuts and promoted a plan to cap annual growth in property tax collections. … ‘Your union said that is the greatest assault on public education in the history of the state,’ Christie said. ‘That’s why the union has no credibility, stupid statements like that.’” He keeps that up and they’ll be a “Draft Christie” movement in 2012.

Obama better knock off the self-pity — Americans don’t like whiners: Daniel Halper on Obama’s comment that this is the hardest year and a half of any president: “It shows his self-absorption and utter lack of a sense of history. … Obama’s whining is puerile. One does hope it’s been the toughest year and a half he’s ever had. He is the president, and it’s a job that requires a bit of work. But to treat the previous presidents with so little respect is unbecoming.” And this was the candidate with a “superior temperament.”

The Democrats better lock away Joe Biden and Richard Blumenthal: “Vice President Joe Biden on Wednesday took an unexpected dig at Democratic Senate candidate Richard Blumenthal for misstating his military service record. … ‘I didn’t serve in Vietnam. I don’t want to make a Blumenthal mistake here,’ he said according to a pool report. ‘Our attorney general from Connecticut, God love him.’” I don’t necessarily see Obama sticking with Biden in 2012, do you?

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Specter Did Specter In

Margaret Carlson has two smart observations about the political demise of Arlen Specter. First, on top of his general toxicity to Democratic candidates, Obama helped do in Specter by nominating Elena Kagan, “which reminded people of that long-ago performance by Specter as he slammed Anita Hill during the Clarence Thomas hearings. Not too long ago, before Specter pledged Democrats his troth, Specter voted against the White House nomination of Kagan for solicitor general. Not surprisingly, he had a hard time finding takers for his reasons why she wasn’t qualified for that job — but should be confirmed to serve on the Supreme Court.”

In this we saw vintage Obama as well as classic Specter. Obama didn’t have a care in the world that his Kagan selection (which has gone over like a lead balloon with his base) would highlight Specter’s lack of core convictions. And Specter was at his typical squishiness in trying to disguise his true motives in these confirmation battles: ensuring his own re-election.

And then, unlike Campbell Brown, Snarlin’ Arlen went out in true form: “Specter did not go quietly into that good night, conceding in the shortest of speeches with no kind words for Sestak. He could have gone out gracefully but so few do — because losing is a little like dying for some.” It was one more reminder that Specter lacks both principles and class.

Politicians don’t often get their just desserts. The crooked ones often avoid prosecution. The ones who go back on campaign promises are rarely held accountable. In sleazy backroom deals, while supposedly representing “the people,” all too many secure comfy jobs on K Street that can benefit their own financial future at the expense of the taxpayers. But once in a while, a clarifying and fully satisfying moment comes along. This is one of them. And on this there is bipartisan agreement: Specter’s forced retirement is good for the Senate and good for the country.

Margaret Carlson has two smart observations about the political demise of Arlen Specter. First, on top of his general toxicity to Democratic candidates, Obama helped do in Specter by nominating Elena Kagan, “which reminded people of that long-ago performance by Specter as he slammed Anita Hill during the Clarence Thomas hearings. Not too long ago, before Specter pledged Democrats his troth, Specter voted against the White House nomination of Kagan for solicitor general. Not surprisingly, he had a hard time finding takers for his reasons why she wasn’t qualified for that job — but should be confirmed to serve on the Supreme Court.”

In this we saw vintage Obama as well as classic Specter. Obama didn’t have a care in the world that his Kagan selection (which has gone over like a lead balloon with his base) would highlight Specter’s lack of core convictions. And Specter was at his typical squishiness in trying to disguise his true motives in these confirmation battles: ensuring his own re-election.

And then, unlike Campbell Brown, Snarlin’ Arlen went out in true form: “Specter did not go quietly into that good night, conceding in the shortest of speeches with no kind words for Sestak. He could have gone out gracefully but so few do — because losing is a little like dying for some.” It was one more reminder that Specter lacks both principles and class.

Politicians don’t often get their just desserts. The crooked ones often avoid prosecution. The ones who go back on campaign promises are rarely held accountable. In sleazy backroom deals, while supposedly representing “the people,” all too many secure comfy jobs on K Street that can benefit their own financial future at the expense of the taxpayers. But once in a while, a clarifying and fully satisfying moment comes along. This is one of them. And on this there is bipartisan agreement: Specter’s forced retirement is good for the Senate and good for the country.

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The Underwelming Kagan

Joshua Green examines why liberals are nervous about Elena Kagan. He explains:

The same thing that makes her confirmation so likely — the lack of a paper trail for opponents to parse and attack — has also become a prime source of concern for her own side. There’s little hard evidence to reassure liberals that she’ll adjudicate in the way they would prefer. Kagan’s lack of a judicial record and scant legal writing during a career spent mostly in politics and the deanship of Harvard Law School leave open the possibility she’ll turn out to be more conservative than advertised. … The liberal complaint against Kagan is threefold: that she wasn’t sufficiently aggressive in hiring women and minorities to the Harvard faculty; that she took worrisome positions on executive power, the war on terrorism, and corporate campaign spending; and that she isn’t the counterpart to Antonin Scalia that the left has long desired.

Green makes a comparison to David Souter, the quintessential stealth candidate who turned out to be not at all what the president who nominated him expected.

Most interesting is that the left — despite the silly Obama spin — recognizes that “she isn’t the counterpart to Antonin Scalia that the left has long desired.” Perhaps they are worried her intellect is not all that dazzling? Well, we can say she’s not demonstrated the sort of brilliance and scholarship or fine writing that the left understands is a prerequisite to do battle on the Court.

She has had a total of six Supreme Court arguments in her short tenure as solicitor general. It took a full six months before she gave her first argument in Citizens United, bypassing key cases, including Ricci (the New Haven firefighter case) and a high-profile challenge to the Voting Rights Act. Sources within the Justice Department report that Kagan was preparing to argue the Voting Rights Act case but ultimately gave way to her deputy.

Does this sound like a proficient, accomplished “lawyer’s lawyer”? Not even Kagan is high on her own advocacy abilities. Her outing in Citizens United was rocky at best, getting the worst of questioning from both Justices Scalia and Kennedy (whom she is tasked by the left with persuading once she is confirmed). At an awards ceremony at Georgetown Law School honoring Kennedy earlier this month, Kagan spoke, and her comments are revealing — and should be bracing to the left:

At one point, Kagan raised audience eyebrows when she said she would remember an exchange she had with Kennedy “for the rest of my career as an advocate.” …

That memorable exchange with Kennedy that Kagan was recalling, by the way, offered a glimpse into how Kagan handled her first oral argument before the high court — or any court — last September in Citizens United v. Federal Election Commission. That’s the landmark campaign finance case that Kagan lost 5-4, with Kennedy writing the majority.

In spite of her earlier praise for Kennedy, Kagan told the Georgetown audience that the justice had “a bit of a bad habit,” namely that he asks advocates about cases that are not mentioned anywhere in the briefs for the case. Kennedy did just that in Citizens United when he asked Kagan whether something she had just said was “inconsistent with the whole line of cases that began with Thornhill v. Alabama and Coates v. Cincinnati.” … Perhaps many advocates know those cases, Kagan said, but “I at any rate did not.” She added, “There was a look of panic on my face.”

Without knowing for sure, Kagan said she believes that Kennedy “saw in the flash of an instant that … I really had no clue” about the cases he was asking her about. Instead of waiting for her painful reply, Kennedy quickly went on to explain the Thornhill line of cases — which relate to facial challenges to statutes under the First Amendment — with enough detail that Kagan was able to recover and answer the question.

The left has good reason to worry. Kagan will need to elicit respect, not pity, from Kennedy once she is confirmed if she is to fulfill the left’s fondest hopes. Maybe she will grow into the job, but if it took six months to get prepared for her first argument before the Court, how long will it take before she is an influential force on the Court? Will she ever be?

Joshua Green examines why liberals are nervous about Elena Kagan. He explains:

The same thing that makes her confirmation so likely — the lack of a paper trail for opponents to parse and attack — has also become a prime source of concern for her own side. There’s little hard evidence to reassure liberals that she’ll adjudicate in the way they would prefer. Kagan’s lack of a judicial record and scant legal writing during a career spent mostly in politics and the deanship of Harvard Law School leave open the possibility she’ll turn out to be more conservative than advertised. … The liberal complaint against Kagan is threefold: that she wasn’t sufficiently aggressive in hiring women and minorities to the Harvard faculty; that she took worrisome positions on executive power, the war on terrorism, and corporate campaign spending; and that she isn’t the counterpart to Antonin Scalia that the left has long desired.

Green makes a comparison to David Souter, the quintessential stealth candidate who turned out to be not at all what the president who nominated him expected.

Most interesting is that the left — despite the silly Obama spin — recognizes that “she isn’t the counterpart to Antonin Scalia that the left has long desired.” Perhaps they are worried her intellect is not all that dazzling? Well, we can say she’s not demonstrated the sort of brilliance and scholarship or fine writing that the left understands is a prerequisite to do battle on the Court.

She has had a total of six Supreme Court arguments in her short tenure as solicitor general. It took a full six months before she gave her first argument in Citizens United, bypassing key cases, including Ricci (the New Haven firefighter case) and a high-profile challenge to the Voting Rights Act. Sources within the Justice Department report that Kagan was preparing to argue the Voting Rights Act case but ultimately gave way to her deputy.

Does this sound like a proficient, accomplished “lawyer’s lawyer”? Not even Kagan is high on her own advocacy abilities. Her outing in Citizens United was rocky at best, getting the worst of questioning from both Justices Scalia and Kennedy (whom she is tasked by the left with persuading once she is confirmed). At an awards ceremony at Georgetown Law School honoring Kennedy earlier this month, Kagan spoke, and her comments are revealing — and should be bracing to the left:

At one point, Kagan raised audience eyebrows when she said she would remember an exchange she had with Kennedy “for the rest of my career as an advocate.” …

That memorable exchange with Kennedy that Kagan was recalling, by the way, offered a glimpse into how Kagan handled her first oral argument before the high court — or any court — last September in Citizens United v. Federal Election Commission. That’s the landmark campaign finance case that Kagan lost 5-4, with Kennedy writing the majority.

In spite of her earlier praise for Kennedy, Kagan told the Georgetown audience that the justice had “a bit of a bad habit,” namely that he asks advocates about cases that are not mentioned anywhere in the briefs for the case. Kennedy did just that in Citizens United when he asked Kagan whether something she had just said was “inconsistent with the whole line of cases that began with Thornhill v. Alabama and Coates v. Cincinnati.” … Perhaps many advocates know those cases, Kagan said, but “I at any rate did not.” She added, “There was a look of panic on my face.”

Without knowing for sure, Kagan said she believes that Kennedy “saw in the flash of an instant that … I really had no clue” about the cases he was asking her about. Instead of waiting for her painful reply, Kennedy quickly went on to explain the Thornhill line of cases — which relate to facial challenges to statutes under the First Amendment — with enough detail that Kagan was able to recover and answer the question.

The left has good reason to worry. Kagan will need to elicit respect, not pity, from Kennedy once she is confirmed if she is to fulfill the left’s fondest hopes. Maybe she will grow into the job, but if it took six months to get prepared for her first argument before the Court, how long will it take before she is an influential force on the Court? Will she ever be?

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Will Specter Be One More Obama Electoral Loss?

Two commentators, one from the left (Gail Collins) and one from the right (Chris Stirewalt), observe that Arlen Specter’s perilous primary run is one more sign of Obama’s declining fortunes. From Collins:

The president appreciated Specter’s help in shoving the stimulus bill over the finish line last year, when the senator was still a Republican. And he really did love the fact that Specter’s party switch gave the Democrats what would turn out to be a very temporary 60th vote in the Senate. But he is not so grateful that he is going to go to Pennsylvania to campaign for him and risk adding yet another political carcass to the list of uncharming Democrats who went down the drain while clinging to his coattails.

And then Stirewalt:

For many months, it seemed that Specter would have little trouble because of Obama’s support. But in time, both Obama and Specter fell out of favor with Pennsylvanians. Obama’s job approval in the state fell below 50 percent and Specter’s slid down into the low 30s. Rather than Obama pulling Specter up, they pulled each other down.

Obama was supposed to clear the field for Specter, but Joe Sestak refused to go and instead has accused Obama of making  a nefarious effort to chase him out of the race with a job offer. Rather than endow Specter with the stamp of approval, Obama has simply reminded everyone — with help from rather biting Sestak ads — that Specter is a turncoat. The result is that Obama, as Stirewalt notes, may wind up showing that “running against him, even in a Democratic primary, is the winning electoral strategy of 2010.”

And consider this: should Specter lose next week, will he still vote for Elena Kagan, whom he opposed as solicitor general? After all, he’ll be free to vote his conscience (assumes facts not in evidence?). Well, who knows what he’ll do.

And who knows what the rest of the Democrats in Congress will do for the remainder of the year if Specter goes down. On nominations and legislation, what incentive do many have to stick with the president? Specter and the list of other Democratic losers who campaigned with Obama have shown that Obama’s only electoral influence may be negative. Maybe it’s time to put some daylight between themselves and the president.

Two commentators, one from the left (Gail Collins) and one from the right (Chris Stirewalt), observe that Arlen Specter’s perilous primary run is one more sign of Obama’s declining fortunes. From Collins:

The president appreciated Specter’s help in shoving the stimulus bill over the finish line last year, when the senator was still a Republican. And he really did love the fact that Specter’s party switch gave the Democrats what would turn out to be a very temporary 60th vote in the Senate. But he is not so grateful that he is going to go to Pennsylvania to campaign for him and risk adding yet another political carcass to the list of uncharming Democrats who went down the drain while clinging to his coattails.

And then Stirewalt:

For many months, it seemed that Specter would have little trouble because of Obama’s support. But in time, both Obama and Specter fell out of favor with Pennsylvanians. Obama’s job approval in the state fell below 50 percent and Specter’s slid down into the low 30s. Rather than Obama pulling Specter up, they pulled each other down.

Obama was supposed to clear the field for Specter, but Joe Sestak refused to go and instead has accused Obama of making  a nefarious effort to chase him out of the race with a job offer. Rather than endow Specter with the stamp of approval, Obama has simply reminded everyone — with help from rather biting Sestak ads — that Specter is a turncoat. The result is that Obama, as Stirewalt notes, may wind up showing that “running against him, even in a Democratic primary, is the winning electoral strategy of 2010.”

And consider this: should Specter lose next week, will he still vote for Elena Kagan, whom he opposed as solicitor general? After all, he’ll be free to vote his conscience (assumes facts not in evidence?). Well, who knows what he’ll do.

And who knows what the rest of the Democrats in Congress will do for the remainder of the year if Specter goes down. On nominations and legislation, what incentive do many have to stick with the president? Specter and the list of other Democratic losers who campaigned with Obama have shown that Obama’s only electoral influence may be negative. Maybe it’s time to put some daylight between themselves and the president.

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RE: The Supreme Court Isn’t the Harvard Law School Faculty

Regarding the difference between faculty schmoozing and Supreme Court persuasion, it’s worthwhile to examine what it is that Elena Kagan did at Harvard. This report gives us a peek, suggesting that her accomplishments have been “overstated”:

Much of the work to defuse the bitter atmosphere, which included ideologically driven standoffs over whom to hire, took place under Ms. Kagan’s predecessor, Robert Clark, dean for 14 years. He calmed tensions and expanded the faculty. …

She was helped by flush times at Harvard. She hired 43 faculty members during her tenure and boosted the total number of full-time professors from 81 to 104, a growth spurt partly enabled by a thriving endowment. She also benefited from a record-setting $476.5 million fund-raising drive that began under Mr. Clark, which she brought to a successful conclusion. More money makes hiring easier, because one appointment isn’t seen as a trade-off for another.

Well, she did some things on her own:

[Charles Fried] also credits her with arranging a faculty lounge so it offered free lunch and large tables, where faculty could sit and get to know one another. “It was an absolute stroke of genius,” Mr. Fried said.

Genius? I think most employers have figured out that free food usually is a winner with employees. But maybe Justice Kennedy can be swayed by sandwiches and soda. And then there are these contributions:

Ms. Kagan is credited with improving student life through upgrades to the physical campus, such as a revamped student center, an upgraded gym and an ice-skating rink that doubled as a volleyball court. And she offered small things, like free coffee outside classrooms and free tampons in the women’s restrooms.

OK, OK, we get the point. This is all very commendable for a dean but utterly irrelevant to the job of being a Supreme Court justice. More revealing will be what she accomplished as solicitor general, and we should begin to focus on that — the number and quality of her arguments. Then we might learn whether she is really up for the job.

Regarding the difference between faculty schmoozing and Supreme Court persuasion, it’s worthwhile to examine what it is that Elena Kagan did at Harvard. This report gives us a peek, suggesting that her accomplishments have been “overstated”:

Much of the work to defuse the bitter atmosphere, which included ideologically driven standoffs over whom to hire, took place under Ms. Kagan’s predecessor, Robert Clark, dean for 14 years. He calmed tensions and expanded the faculty. …

She was helped by flush times at Harvard. She hired 43 faculty members during her tenure and boosted the total number of full-time professors from 81 to 104, a growth spurt partly enabled by a thriving endowment. She also benefited from a record-setting $476.5 million fund-raising drive that began under Mr. Clark, which she brought to a successful conclusion. More money makes hiring easier, because one appointment isn’t seen as a trade-off for another.

Well, she did some things on her own:

[Charles Fried] also credits her with arranging a faculty lounge so it offered free lunch and large tables, where faculty could sit and get to know one another. “It was an absolute stroke of genius,” Mr. Fried said.

Genius? I think most employers have figured out that free food usually is a winner with employees. But maybe Justice Kennedy can be swayed by sandwiches and soda. And then there are these contributions:

Ms. Kagan is credited with improving student life through upgrades to the physical campus, such as a revamped student center, an upgraded gym and an ice-skating rink that doubled as a volleyball court. And she offered small things, like free coffee outside classrooms and free tampons in the women’s restrooms.

OK, OK, we get the point. This is all very commendable for a dean but utterly irrelevant to the job of being a Supreme Court justice. More revealing will be what she accomplished as solicitor general, and we should begin to focus on that — the number and quality of her arguments. Then we might learn whether she is really up for the job.

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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

AP reports: “Egypt’s government on Tuesday extended the country’s controversial emergency law for another two years, saying it would limit its use, a promise dismissed by human rights activists who warned the law would continue to be used to suppress dissent.” Will Obama be “deeply concerned” or zoom all the way to “profoundly troubled”?

Alan Dershowitz on Richard Goldstone’s “I was just following the law” defense of his record as a “hanging” apartheid judge: “It is interesting that Goldstone made a similar argument to friends as to why he accepted the chairmanship of the investigative commission offered to him by the United Nations Human Rights Council. He acknowledged that the Council was biased against Israel. Indeed, it treats Israel much the way Apartheid courts used to treat Black Africans: Just as there was special justice (really injustice) for blacks, so too there is special justice (really injustice) for Israel. Goldstone claims he took the job ‘to help Israel,’ just as he took his previous job to help blacks. In both cases he cynically hurt those he said he wanted to help while helping only himself. In both cases he was selected to legitimate bigotry. In both cases, better people than him refused to lend their credibility to an illegitimate enterprise. But Goldstone accepted, because it was good for his career.” Read the whole thing.

Dan Gerstein on the Kagan sales pitch: “This week, with their over-hyped and off-key ‘real world’ sales pitch for Supreme Court nominee Elena Kagan, the president’s team is doing a bang-up job of outing their blinds spots themselves. In doing so, they are providing a big open window into why Obama continues to struggle in connecting with working-class voters.”

Megan McArdle on Kagan’s “pitch-perfect blandness”: “What’s disturbing is that this is what our nomination process now selects for: someone who appears to be in favor of nothing except self-advancement. Then we complain when the most passionate advocates for ideas are the lunatic fringe.”

Steve Kornacki asks, “Should Specter have run as an independent?” He still can!

Charles Krauthammer on Specter’s dilemma having voted against Kagan for solicitor general: “You almost feel sorry for Arlen Specter. I mean: Almost. This is a guy of so many twists and turns and retreats and swerves and reverses. It reminds me of a line in a Graham Greene novel where he speaks of his protagonist who says: ‘I prefer to tell the truth. It’s easier to memorize.’ Specter‘s got a lot of memorizing to do.”

Oops: “Congressional budget referees say President Barack Obama’s new health care law could potentially add another $115 billion over 10 years to government health care spending. If Congress approves all the additional spending, that would push the 10-year cost of the overhaul above $1 trillion — an unofficial limit the Obama administration set early on. The Congressional Budget Office said Tuesday the added spending includes $10 billion to $20 billion in administrative costs to federal agencies carrying out the law, as well as $34 billion for community health centers and $39 billion for American Indian health care.”

But most voters have already figured that out: “The number of U.S. voters who expect the recently passed health care bill to increase the federal deficit is at its highest level yet, and most voters continue to favor its repeal. The latest Rasmussen Reports national telephone survey of Likely Voters shows 63% now believe the health care reform legislation signed into law is likely to increase the federal deficit. That’s up four points from last week.”

AP reports: “Egypt’s government on Tuesday extended the country’s controversial emergency law for another two years, saying it would limit its use, a promise dismissed by human rights activists who warned the law would continue to be used to suppress dissent.” Will Obama be “deeply concerned” or zoom all the way to “profoundly troubled”?

Alan Dershowitz on Richard Goldstone’s “I was just following the law” defense of his record as a “hanging” apartheid judge: “It is interesting that Goldstone made a similar argument to friends as to why he accepted the chairmanship of the investigative commission offered to him by the United Nations Human Rights Council. He acknowledged that the Council was biased against Israel. Indeed, it treats Israel much the way Apartheid courts used to treat Black Africans: Just as there was special justice (really injustice) for blacks, so too there is special justice (really injustice) for Israel. Goldstone claims he took the job ‘to help Israel,’ just as he took his previous job to help blacks. In both cases he cynically hurt those he said he wanted to help while helping only himself. In both cases he was selected to legitimate bigotry. In both cases, better people than him refused to lend their credibility to an illegitimate enterprise. But Goldstone accepted, because it was good for his career.” Read the whole thing.

Dan Gerstein on the Kagan sales pitch: “This week, with their over-hyped and off-key ‘real world’ sales pitch for Supreme Court nominee Elena Kagan, the president’s team is doing a bang-up job of outing their blinds spots themselves. In doing so, they are providing a big open window into why Obama continues to struggle in connecting with working-class voters.”

Megan McArdle on Kagan’s “pitch-perfect blandness”: “What’s disturbing is that this is what our nomination process now selects for: someone who appears to be in favor of nothing except self-advancement. Then we complain when the most passionate advocates for ideas are the lunatic fringe.”

Steve Kornacki asks, “Should Specter have run as an independent?” He still can!

Charles Krauthammer on Specter’s dilemma having voted against Kagan for solicitor general: “You almost feel sorry for Arlen Specter. I mean: Almost. This is a guy of so many twists and turns and retreats and swerves and reverses. It reminds me of a line in a Graham Greene novel where he speaks of his protagonist who says: ‘I prefer to tell the truth. It’s easier to memorize.’ Specter‘s got a lot of memorizing to do.”

Oops: “Congressional budget referees say President Barack Obama’s new health care law could potentially add another $115 billion over 10 years to government health care spending. If Congress approves all the additional spending, that would push the 10-year cost of the overhaul above $1 trillion — an unofficial limit the Obama administration set early on. The Congressional Budget Office said Tuesday the added spending includes $10 billion to $20 billion in administrative costs to federal agencies carrying out the law, as well as $34 billion for community health centers and $39 billion for American Indian health care.”

But most voters have already figured that out: “The number of U.S. voters who expect the recently passed health care bill to increase the federal deficit is at its highest level yet, and most voters continue to favor its repeal. The latest Rasmussen Reports national telephone survey of Likely Voters shows 63% now believe the health care reform legislation signed into law is likely to increase the federal deficit. That’s up four points from last week.”

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The Problem with Law Schools

Ed Whelan dismantles bit by bit the argument by former Harvard Law School dean Robert Clark in support of current Harvard Law School dean Elena Kagan’s barring of military recruiters and signing on to an amicus brief contesting the Solomon Amendment. This raises a larger issue — yes, even larger than a single Supreme Court nomination — what’s the matter with law schools? After all, lots and lots of their deans and professors hadn’t a clue what the law was in the case challenging the Solomon Amendment. George Mason University Law School was the proud exception and at the time reminded us:

The amicus brief filed by the dean and two professors at George Mason’s law school was the only one submitted by a law school that took the side of the armed services. Many amicus briefs were filed on the losing side (including briefs in behalf of Yale University, Harvard University, Columbia University, New York University, the University of Chicago, Cornell University and the University of Pennsylvania), arguing that the Solomon Amendment’s requirement of equal access for military recruiters was unconstitutional under the First Amendment. In addition, professors at Columbia and Harvard law schools submitted briefs arguing that as a matter of statutory construction the law schools had in fact complied with the Solomon Amendment. The constitutional and statutory arguments were all rejected by the Court.

There is a reason why the Chief Justice, among other justices over the years, has said that he doesn’t pay too much attention to law-review articles. Why? Law professors don’t really have a great grasp of what the law is or a decent track record in predicting where it will evolve. They operate in a largely isolated academic setting in which, in their minds, there are nine Justice Stevenses on the bench. And in this case, they didn’t even get Stevens’s position right.

As Ronald Reagan said of liberals, it’s not that they are ignorant. It’s that they know so much that isn’t true. So I can see the argument for looking outside the appellate bench for justices. But I think law professors are the last place you’d want to look for unbiased, accomplished legal analysts. Let’s hope Kagan picked up some actual law, not law-school law, in her last year at the solicitor general’s office.

Ed Whelan dismantles bit by bit the argument by former Harvard Law School dean Robert Clark in support of current Harvard Law School dean Elena Kagan’s barring of military recruiters and signing on to an amicus brief contesting the Solomon Amendment. This raises a larger issue — yes, even larger than a single Supreme Court nomination — what’s the matter with law schools? After all, lots and lots of their deans and professors hadn’t a clue what the law was in the case challenging the Solomon Amendment. George Mason University Law School was the proud exception and at the time reminded us:

The amicus brief filed by the dean and two professors at George Mason’s law school was the only one submitted by a law school that took the side of the armed services. Many amicus briefs were filed on the losing side (including briefs in behalf of Yale University, Harvard University, Columbia University, New York University, the University of Chicago, Cornell University and the University of Pennsylvania), arguing that the Solomon Amendment’s requirement of equal access for military recruiters was unconstitutional under the First Amendment. In addition, professors at Columbia and Harvard law schools submitted briefs arguing that as a matter of statutory construction the law schools had in fact complied with the Solomon Amendment. The constitutional and statutory arguments were all rejected by the Court.

There is a reason why the Chief Justice, among other justices over the years, has said that he doesn’t pay too much attention to law-review articles. Why? Law professors don’t really have a great grasp of what the law is or a decent track record in predicting where it will evolve. They operate in a largely isolated academic setting in which, in their minds, there are nine Justice Stevenses on the bench. And in this case, they didn’t even get Stevens’s position right.

As Ronald Reagan said of liberals, it’s not that they are ignorant. It’s that they know so much that isn’t true. So I can see the argument for looking outside the appellate bench for justices. But I think law professors are the last place you’d want to look for unbiased, accomplished legal analysts. Let’s hope Kagan picked up some actual law, not law-school law, in her last year at the solicitor general’s office.

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Pity the Constitution

To the century-old debate about whether the Constitution is “living” or static, we may now add yet another argument, an even more woeful assault on the founding document of our country. David Strauss — who claims to be an eminent constitutional-law scholar — views the Constitution as a mere Rorschach test for the collective psyche of the polis.

Writing in an unlikely forum, Florida International University law professor Stanley Fish subjects Strauss’s new book to a much-needed vivisection. He first boils down Strauss’s thesis:

The question is not, as Strauss would have it, is this proffered meaning in the Constitution? The question is, can a chain of inference be formed that links this meaning to something the framers can be said to have intended? …

[Strauss states that the] “written Constitution is valuable because it provides a common ground among the American people.” But as it turns out, common ground is provided not by the Constitution itself but by a survey of “widely acceptable” meanings, which are then attributed to the Constitution as if it were their source. The text, Strauss advises, “should be interpreted in the way best calculated to provide a point on which people can agree.” The way to do this, he adds, is to give the words of the Constitution “their ordinary current meaning — even in preference to the meaning the framers understood.” After all, “the original meaning might be obscure and controversial.”

Believe it or not, even the New York Times can’t stomach Strauss’s assertion:

This is an amazing statement. The Constitution becomes common ground when it becomes a vessel for meanings it does not contain. It acts as a binding agent as long as you don’t take it seriously but take care to pretend that you do. As long as an interpretation of the Constitution “can plausibly say that it honors the text, the text can continue to serve the common ground function.” … The incoherence of what Strauss is urging is spectacularly displayed in a single sentence. Given the importance of common ground, “it makes sense,” he says, “to adhere to the text even while disregarding the framers’ intentions.”

Fish concludes that “if this is what the ‘living Constitution’ is — a Constitution produced and reproduced by serial acts of infidelity — I hereby cast a vote for the real one.”

Theoretically, Strauss is one step further from what a “living Constitution” is. The concept’s original adherents, if they may be taken at their word, saw the “living Constitution” as a way to pull the text into the modern age, amplifying its meaning, not undermining it. Among angels, this may have worked. But Strauss shows what implementing a “living Constitution” looks like in the real world.

His conclusion is fiddlesticks but not for lack of logic. There’s a perfectly reasonable devolution from an established Constitution to a living Constitution to a populist legal system. The question becomes, if the Constitution is “living,” who’s breathing life into it? And with what intentions?

Strauss’s book reminds us that the debate about the Constitution is far from theoretical, and the stakes are high. In fact, Strauss has already held positions high enough to promote his thesis. He was special counsel to the Senate Judiciary Committee. He was the assistant solicitor general. He has argued many times before the Supreme Court, and he edits the Supreme Court Review.

Furthermore, one might find it disconcerting to know that Strauss has been singing former colleague Elena Kagan’s praises across the media. He has said: “Elena is a resolutely non-ideological person. She is great at asking hard questions. She does not approach issues with preconceived views; she tries to figure things out. She is practical and tough-minded.”

Much has yet to be determined about what Elena Kagan thinks. But if she, like her colleague, believes in a living Constitution, are we prepared to accept the interpretation with which she animates it on our behalf?

To the century-old debate about whether the Constitution is “living” or static, we may now add yet another argument, an even more woeful assault on the founding document of our country. David Strauss — who claims to be an eminent constitutional-law scholar — views the Constitution as a mere Rorschach test for the collective psyche of the polis.

Writing in an unlikely forum, Florida International University law professor Stanley Fish subjects Strauss’s new book to a much-needed vivisection. He first boils down Strauss’s thesis:

The question is not, as Strauss would have it, is this proffered meaning in the Constitution? The question is, can a chain of inference be formed that links this meaning to something the framers can be said to have intended? …

[Strauss states that the] “written Constitution is valuable because it provides a common ground among the American people.” But as it turns out, common ground is provided not by the Constitution itself but by a survey of “widely acceptable” meanings, which are then attributed to the Constitution as if it were their source. The text, Strauss advises, “should be interpreted in the way best calculated to provide a point on which people can agree.” The way to do this, he adds, is to give the words of the Constitution “their ordinary current meaning — even in preference to the meaning the framers understood.” After all, “the original meaning might be obscure and controversial.”

Believe it or not, even the New York Times can’t stomach Strauss’s assertion:

This is an amazing statement. The Constitution becomes common ground when it becomes a vessel for meanings it does not contain. It acts as a binding agent as long as you don’t take it seriously but take care to pretend that you do. As long as an interpretation of the Constitution “can plausibly say that it honors the text, the text can continue to serve the common ground function.” … The incoherence of what Strauss is urging is spectacularly displayed in a single sentence. Given the importance of common ground, “it makes sense,” he says, “to adhere to the text even while disregarding the framers’ intentions.”

Fish concludes that “if this is what the ‘living Constitution’ is — a Constitution produced and reproduced by serial acts of infidelity — I hereby cast a vote for the real one.”

Theoretically, Strauss is one step further from what a “living Constitution” is. The concept’s original adherents, if they may be taken at their word, saw the “living Constitution” as a way to pull the text into the modern age, amplifying its meaning, not undermining it. Among angels, this may have worked. But Strauss shows what implementing a “living Constitution” looks like in the real world.

His conclusion is fiddlesticks but not for lack of logic. There’s a perfectly reasonable devolution from an established Constitution to a living Constitution to a populist legal system. The question becomes, if the Constitution is “living,” who’s breathing life into it? And with what intentions?

Strauss’s book reminds us that the debate about the Constitution is far from theoretical, and the stakes are high. In fact, Strauss has already held positions high enough to promote his thesis. He was special counsel to the Senate Judiciary Committee. He was the assistant solicitor general. He has argued many times before the Supreme Court, and he edits the Supreme Court Review.

Furthermore, one might find it disconcerting to know that Strauss has been singing former colleague Elena Kagan’s praises across the media. He has said: “Elena is a resolutely non-ideological person. She is great at asking hard questions. She does not approach issues with preconceived views; she tries to figure things out. She is practical and tough-minded.”

Much has yet to be determined about what Elena Kagan thinks. But if she, like her colleague, believes in a living Constitution, are we prepared to accept the interpretation with which she animates it on our behalf?

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Bellwether Battle: Sestak vs. Toomey

With the need to explain his vote against Obama Supreme Court nominee Elena Kagan when she was confirmed as solicitor general, and yet another tracking poll showing him losing even more ground to challenger Rep. Joe Sestak, Sen. Arlen Specter has officially been declared “toast” by leftist Philadelphia Daily News blogger Will Bunch.

Bunch is right about Specter being ready for a shmear of cream cheese or butter, but he failed to note the news that supporters of the incumbent must regard with special dread: a new Rasmussen poll indicates that Sestak will be a stronger opponent for Republican Pat Toomey in the fall. In the first tracking poll matching the two Democrats against their all-but-certain Republican opponent in a month, Sestak gained strength as Specter continued to lose ground. A month ago, Toomey led Specter 50 to 40 percent. The latest numbers show the margin now to be 50 to 38. While the same survey showed Sestak trailing Toomey 47-36 a month ago, a new poll shows the race to be a virtual standoff, with Toomey holding only a 42-40 lead.

Wavering Democrats who never liked the idea of the former Republican being their nominee were told by party bigwigs that Specter was their only hope to hold the seat in November, since Sestak was too weak to beat Toomey. But if Specter’s incumbency is a weakness rather than a strength in a general election, then liberals won’t hesitate to abandon him next week in droves.

These numbers just confirm what Bunch and just about everybody else who isn’t a Specter staffer have concluded: the incumbent is finished and Pennsylvania will have one of the most competitive and clearly ideological battles for the Senate in November.

Most Pennsylvania Republicans have been thoroughly enjoying Arlen Specter’s difficulties in convincing his new party’s voters to embrace him. After decades of being represented by a man who always put himself on both sides of every big issue, conservatives, who came close to knocking off Specter in a 2004 GOP primary, are getting a great deal of vicarious pleasure from Sestak’s successful challenge to a Democratic establishment that embraced the slippery incumbent with the same ardor that George W. Bush and Rick Santorum backed him six years ago. But with Sestak pulling even with Toomey in a head-to-head matchup, conservatives need to start thinking clearly about the liberal former admiral.

In the past decade, Pennsylvania’s Senate races have generally been won by whoever could claim the center. But this fall, there will be no race in the nation that presents a starker choice between the parties. In all likelihood, the matchup will feature two candidates, Toomey and Sestak, who represent the conservative and liberal wings of their parties respectively. As a man who won a seat in Congress in 2006 as an anti-war candidate, Sestak may well be able to mobilize the suburban liberal base of the Democratic Party even if he leaves urban minorities cold. And we can expect the liberal-media attack machine to go all-out to tar Toomey as a right-wing fanatic. In response, the stalwartly pro-Israel Toomey will have the chance to hold Sestak accountable for his very shaky stand on the Middle East since the congressman backed a J Street letter on Israel rather than one endorsed by the mainstream pro-Israel AIPAC. And Sestak has never backed away from his appearance in 2007 at a fundraiser for the pro-Hamas CAIR’s Philadelphia chapter.

The point is, once Specter is done, conservatives will have to stop cheering for Sestak and start taking him seriously as a formidable and dangerous opponent.

With the need to explain his vote against Obama Supreme Court nominee Elena Kagan when she was confirmed as solicitor general, and yet another tracking poll showing him losing even more ground to challenger Rep. Joe Sestak, Sen. Arlen Specter has officially been declared “toast” by leftist Philadelphia Daily News blogger Will Bunch.

Bunch is right about Specter being ready for a shmear of cream cheese or butter, but he failed to note the news that supporters of the incumbent must regard with special dread: a new Rasmussen poll indicates that Sestak will be a stronger opponent for Republican Pat Toomey in the fall. In the first tracking poll matching the two Democrats against their all-but-certain Republican opponent in a month, Sestak gained strength as Specter continued to lose ground. A month ago, Toomey led Specter 50 to 40 percent. The latest numbers show the margin now to be 50 to 38. While the same survey showed Sestak trailing Toomey 47-36 a month ago, a new poll shows the race to be a virtual standoff, with Toomey holding only a 42-40 lead.

Wavering Democrats who never liked the idea of the former Republican being their nominee were told by party bigwigs that Specter was their only hope to hold the seat in November, since Sestak was too weak to beat Toomey. But if Specter’s incumbency is a weakness rather than a strength in a general election, then liberals won’t hesitate to abandon him next week in droves.

These numbers just confirm what Bunch and just about everybody else who isn’t a Specter staffer have concluded: the incumbent is finished and Pennsylvania will have one of the most competitive and clearly ideological battles for the Senate in November.

Most Pennsylvania Republicans have been thoroughly enjoying Arlen Specter’s difficulties in convincing his new party’s voters to embrace him. After decades of being represented by a man who always put himself on both sides of every big issue, conservatives, who came close to knocking off Specter in a 2004 GOP primary, are getting a great deal of vicarious pleasure from Sestak’s successful challenge to a Democratic establishment that embraced the slippery incumbent with the same ardor that George W. Bush and Rick Santorum backed him six years ago. But with Sestak pulling even with Toomey in a head-to-head matchup, conservatives need to start thinking clearly about the liberal former admiral.

In the past decade, Pennsylvania’s Senate races have generally been won by whoever could claim the center. But this fall, there will be no race in the nation that presents a starker choice between the parties. In all likelihood, the matchup will feature two candidates, Toomey and Sestak, who represent the conservative and liberal wings of their parties respectively. As a man who won a seat in Congress in 2006 as an anti-war candidate, Sestak may well be able to mobilize the suburban liberal base of the Democratic Party even if he leaves urban minorities cold. And we can expect the liberal-media attack machine to go all-out to tar Toomey as a right-wing fanatic. In response, the stalwartly pro-Israel Toomey will have the chance to hold Sestak accountable for his very shaky stand on the Middle East since the congressman backed a J Street letter on Israel rather than one endorsed by the mainstream pro-Israel AIPAC. And Sestak has never backed away from his appearance in 2007 at a fundraiser for the pro-Hamas CAIR’s Philadelphia chapter.

The point is, once Specter is done, conservatives will have to stop cheering for Sestak and start taking him seriously as a formidable and dangerous opponent.

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The Gray Lady Is Nervous

The New York Times editors, even before the revelation of her abortion advice during the Clinton administration, were nervous about the stealth nominee. They fret:

President Obama may know that his new nominee to the Supreme Court, Elena Kagan, shares his thinking on the multitude of issues that face the court and the nation, but the public knows nothing of the kind. Whether by ambitious design or by habit of mind, Ms. Kagan has spent decades carefully husbanding her thoughts and shielding her philosophy from view. Her lack of a clear record on certain issues makes it hard to know whether Mr. Obama has nominated a full-throated counterweight to the court’s increasingly aggressive conservative wing. … But where, precisely, has Ms. Kagan been during the legal whirlwinds of the last few years, as issues like executive power, same-sex marriage, the rights of the accused and proper application of the death penalty have raged through the courts?

Why, hiding her views to position herself for the Court, of course. It is ironic that the president, who got to office concealing his own views, now is unsettling his base for selecting someone who has concealed hers. The lefty Times editors find this most troubling:

In a 2001 Harvard Law Review article, Ms. Kagan defended a robust assertion of presidential power unless specifically limited by Congress — albeit in the service of “progressive goals” on the domestic front. She told the Senate last year that she agreed the government has the right to indefinitely detain enemy combatants captured around the world. As Mr. Obama’s solicitor general, she has supported his administration’s positions, little changed since the Bush administration, on the use of military force against Al Qaeda, the habeas corpus rights of military detainees and the state secrets privilege.

Conservatives may roll their eyes, convinced that no Harvard Law School dean is going to cross the left. But the issue here is the rather paranoid and perpetually aggrieved left. Obama in their eyes has been a disappointment. Indeed, it was their apathy that convinced the Democrats that they had to roll the dice on ObamaCare in order to turn out the liberal base in November. Now he gives them a nominee — for the seat of the sainted leftist Justice Stevens — who’s a squish? Hmm. Obama may have been too clever by half on this. The right will probably still not embrace her, and the left will, once again, be peeved. Sort of the worst of all worlds, no?

The New York Times editors, even before the revelation of her abortion advice during the Clinton administration, were nervous about the stealth nominee. They fret:

President Obama may know that his new nominee to the Supreme Court, Elena Kagan, shares his thinking on the multitude of issues that face the court and the nation, but the public knows nothing of the kind. Whether by ambitious design or by habit of mind, Ms. Kagan has spent decades carefully husbanding her thoughts and shielding her philosophy from view. Her lack of a clear record on certain issues makes it hard to know whether Mr. Obama has nominated a full-throated counterweight to the court’s increasingly aggressive conservative wing. … But where, precisely, has Ms. Kagan been during the legal whirlwinds of the last few years, as issues like executive power, same-sex marriage, the rights of the accused and proper application of the death penalty have raged through the courts?

Why, hiding her views to position herself for the Court, of course. It is ironic that the president, who got to office concealing his own views, now is unsettling his base for selecting someone who has concealed hers. The lefty Times editors find this most troubling:

In a 2001 Harvard Law Review article, Ms. Kagan defended a robust assertion of presidential power unless specifically limited by Congress — albeit in the service of “progressive goals” on the domestic front. She told the Senate last year that she agreed the government has the right to indefinitely detain enemy combatants captured around the world. As Mr. Obama’s solicitor general, she has supported his administration’s positions, little changed since the Bush administration, on the use of military force against Al Qaeda, the habeas corpus rights of military detainees and the state secrets privilege.

Conservatives may roll their eyes, convinced that no Harvard Law School dean is going to cross the left. But the issue here is the rather paranoid and perpetually aggrieved left. Obama in their eyes has been a disappointment. Indeed, it was their apathy that convinced the Democrats that they had to roll the dice on ObamaCare in order to turn out the liberal base in November. Now he gives them a nominee — for the seat of the sainted leftist Justice Stevens — who’s a squish? Hmm. Obama may have been too clever by half on this. The right will probably still not embrace her, and the left will, once again, be peeved. Sort of the worst of all worlds, no?

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The Last Days of Arlen Specter

With only a week to go before Democratic primary voters choose a candidate for the United States Senate, the incumbent’s campaign is beginning to have a Last Days of Pompeii feel to it. In that classic old movie — the original Hollywood disaster flick — ordinary people in the ancient Roman city go about their lives without an inkling about a fact the audience knew before they entered the theater — that their world is about to blow up.

In that same way, we are now watching Arlen Specter campaign for a sixth term in the Senate as if 2010 weren’t different from any other campaign he had ever fought. The polls showing Specter now trailing challenger Rep. Joe Sestak among Democrats aren’t merely routine bad news for a failing campaign. They are a cataclysm for the senator. Specter’s greatest strength in the primary was the sense of inevitability about his victory that backers such as President Obama and Pennsylvania Governor Ed Rendell have tried to foster. Without it, it’s going to be hard to hold the loyalty of the Philadelphia party ward bosses, whom Specter is counting on to manufacture a winning margin. While there is no sign that the state or city party is lessening its efforts on his behalf, these are exactly the kinds of people who don’t like going down with a sinking ship and who won’t go all-out for a candidate who won’t be in a position to do favors for them in the future. Without a massive turnout produced by one of the last viable urban political machines in the country, Specter is sunk. Moreover, Specter’s best argument to convince Democrats to back him — that he is a stronger candidate against Republican Pat Toomey in November — is also fading, given that a month ago polls showed Toomey with a substantial lead over either Democrat.

Ironically, the latest of the state’s leading newspapers to endorse Specter — the Philadelphia Daily News — seemed to understand that dissatisfaction with incumbents and the corruption of earmark spending that Specter exemplifies made the race “a microcosm of the American political landscape” in which the choice in November will be between “a bellwether for the nation, embodying a shift rightward, or a more moderate staying-of-the-course.”

The Daily News makes no secret that it wants the answer to be the latter, but give it credit for creative writing in its endorsement of Specter, in which it characterizes his obvious flip-flops and party switch thusly:

He comes by these changes honestly, as part of a process of finding the truth in issues that resist easy answers. He has been smart and tough enough to survive — and thrive — while resisting easy categorization.

Talk about political spin, this sort of blatantly cynical and deceptive line brings to mind H.L. Mencken’s famous (if not altogether fair) characterization of William Jennings Bryan: “If he was sincere, then so was Barnum.”

Meanwhile, there are two other interesting developments in the race.

Specter has been taking a beating for his “swift-boat” ads sliming opponent Rep. Joe Sestak for his Navy record. So the Democratic establishment brought out the original “swift-boat” victim — Sen. John Kerry — to endorse Specter. While Kerry gave the usual pro forma endorsement of a fellow member of the Senate Democratic caucus, he pointedly refused to endorse Specter’s attack on Sestak or talk candidly about the obvious comparisons between the attacks he suffered and those directed at Sestak. Such an endorsement may hurt more than it helps, since it merely draws more attention to an issue that makes Specter look like a vicious incumbent willing to do or say anything to gain re-election.

Even more unhelpful for Specter is President Obama’s nomination of Elena Kagan to the Supreme Court. As it happens, the 2009 vote to confirm Kagan as solicitor general occurred during the senator’s last weeks as a Republican, and he voted against her. This gives Sestak yet another opportunity in the last week of campaigning to hammer Specter as a cynical turncoat. Specter’s having to spend time this week dealing with yet more evidence of the insincerity of his conversion to the Democrats is a boost for Sestak.

Taken all together, these developments point to a Specter defeat next week. But while the ending is becoming increasingly clear to the rest of us, we’re left wondering whether he understands that these may well be his last days as a politician with a future.

With only a week to go before Democratic primary voters choose a candidate for the United States Senate, the incumbent’s campaign is beginning to have a Last Days of Pompeii feel to it. In that classic old movie — the original Hollywood disaster flick — ordinary people in the ancient Roman city go about their lives without an inkling about a fact the audience knew before they entered the theater — that their world is about to blow up.

In that same way, we are now watching Arlen Specter campaign for a sixth term in the Senate as if 2010 weren’t different from any other campaign he had ever fought. The polls showing Specter now trailing challenger Rep. Joe Sestak among Democrats aren’t merely routine bad news for a failing campaign. They are a cataclysm for the senator. Specter’s greatest strength in the primary was the sense of inevitability about his victory that backers such as President Obama and Pennsylvania Governor Ed Rendell have tried to foster. Without it, it’s going to be hard to hold the loyalty of the Philadelphia party ward bosses, whom Specter is counting on to manufacture a winning margin. While there is no sign that the state or city party is lessening its efforts on his behalf, these are exactly the kinds of people who don’t like going down with a sinking ship and who won’t go all-out for a candidate who won’t be in a position to do favors for them in the future. Without a massive turnout produced by one of the last viable urban political machines in the country, Specter is sunk. Moreover, Specter’s best argument to convince Democrats to back him — that he is a stronger candidate against Republican Pat Toomey in November — is also fading, given that a month ago polls showed Toomey with a substantial lead over either Democrat.

Ironically, the latest of the state’s leading newspapers to endorse Specter — the Philadelphia Daily News — seemed to understand that dissatisfaction with incumbents and the corruption of earmark spending that Specter exemplifies made the race “a microcosm of the American political landscape” in which the choice in November will be between “a bellwether for the nation, embodying a shift rightward, or a more moderate staying-of-the-course.”

The Daily News makes no secret that it wants the answer to be the latter, but give it credit for creative writing in its endorsement of Specter, in which it characterizes his obvious flip-flops and party switch thusly:

He comes by these changes honestly, as part of a process of finding the truth in issues that resist easy answers. He has been smart and tough enough to survive — and thrive — while resisting easy categorization.

Talk about political spin, this sort of blatantly cynical and deceptive line brings to mind H.L. Mencken’s famous (if not altogether fair) characterization of William Jennings Bryan: “If he was sincere, then so was Barnum.”

Meanwhile, there are two other interesting developments in the race.

Specter has been taking a beating for his “swift-boat” ads sliming opponent Rep. Joe Sestak for his Navy record. So the Democratic establishment brought out the original “swift-boat” victim — Sen. John Kerry — to endorse Specter. While Kerry gave the usual pro forma endorsement of a fellow member of the Senate Democratic caucus, he pointedly refused to endorse Specter’s attack on Sestak or talk candidly about the obvious comparisons between the attacks he suffered and those directed at Sestak. Such an endorsement may hurt more than it helps, since it merely draws more attention to an issue that makes Specter look like a vicious incumbent willing to do or say anything to gain re-election.

Even more unhelpful for Specter is President Obama’s nomination of Elena Kagan to the Supreme Court. As it happens, the 2009 vote to confirm Kagan as solicitor general occurred during the senator’s last weeks as a Republican, and he voted against her. This gives Sestak yet another opportunity in the last week of campaigning to hammer Specter as a cynical turncoat. Specter’s having to spend time this week dealing with yet more evidence of the insincerity of his conversion to the Democrats is a boost for Sestak.

Taken all together, these developments point to a Specter defeat next week. But while the ending is becoming increasingly clear to the rest of us, we’re left wondering whether he understands that these may well be his last days as a politician with a future.

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RE: Kagan Nominated

Michael Gerson thinks Kagan’s harsh criticism of the military and decision to join the amicus brief seeking to allow law schools to ban recruiters will be a problem, positing that ”many Americans will find her actions offensive — with far more intensity than the White House expects.” He explains:

Kagan not only took this controversial action, she publicly attacked the policy as “deeply wrong,” “unwise and unjust” and “a moral injustice of the first order.” It will be hard to downplay an issue that Kagan has a history of grandstanding. Standing in the way of military recruiters may seem normal in academic circles, but it will seem radical in much of the country — like banning the American flag from campus to protest some policy disagreement with the government. This controversy will add to a broader narrative that “Manhattan’s liberal, intellectual Upper West Side” is disconnected from the views and values of Middle America.

This may not be enough to derail the Kagan nomination, but it will complicate it.

It does work against the Obama team’s selling point that they went for someone with “real life” experience (for real life, don’t look in Ivy League law schools) who understands ordinary Americans. Hey, it’s not an argument I favor, because the law is the law, and one’s biography really shouldn’t factor in, but this is what the left keeps spinning. It is amusing, however, that the left considers “real life” what most Americans find radical. Was Sonia Sotomayor’s support of quotas and set-asides reflective of “real life,” or did it reflect a specific victimology that infects minority advocacy on the left? Was a pack of law school deans in touch with “real life” when they sought to defy a perfectly legitimate statute that required them to afford access to recruiters?

All this goes to a more fundamental concern about Kagan. Her entire career has been spent either as a law school administrator or as an advocate (e.g., in a political position in the Clinton administration or as solicitor general). The question she was used to asking herself was: what do I want the law to be? But the business of judging is determining what the law is. Liberals see no difference — the law is what five justices say it is. But most Americans and a majority of the Court think otherwise. So the questions for her now are: how does she decide what the law is, what method does she use for separating personal conviction and constitutional interpretation, and does she have a view of the Supreme Court that is something other than as an uber-legislature? We’ll find out this summer.

Michael Gerson thinks Kagan’s harsh criticism of the military and decision to join the amicus brief seeking to allow law schools to ban recruiters will be a problem, positing that ”many Americans will find her actions offensive — with far more intensity than the White House expects.” He explains:

Kagan not only took this controversial action, she publicly attacked the policy as “deeply wrong,” “unwise and unjust” and “a moral injustice of the first order.” It will be hard to downplay an issue that Kagan has a history of grandstanding. Standing in the way of military recruiters may seem normal in academic circles, but it will seem radical in much of the country — like banning the American flag from campus to protest some policy disagreement with the government. This controversy will add to a broader narrative that “Manhattan’s liberal, intellectual Upper West Side” is disconnected from the views and values of Middle America.

This may not be enough to derail the Kagan nomination, but it will complicate it.

It does work against the Obama team’s selling point that they went for someone with “real life” experience (for real life, don’t look in Ivy League law schools) who understands ordinary Americans. Hey, it’s not an argument I favor, because the law is the law, and one’s biography really shouldn’t factor in, but this is what the left keeps spinning. It is amusing, however, that the left considers “real life” what most Americans find radical. Was Sonia Sotomayor’s support of quotas and set-asides reflective of “real life,” or did it reflect a specific victimology that infects minority advocacy on the left? Was a pack of law school deans in touch with “real life” when they sought to defy a perfectly legitimate statute that required them to afford access to recruiters?

All this goes to a more fundamental concern about Kagan. Her entire career has been spent either as a law school administrator or as an advocate (e.g., in a political position in the Clinton administration or as solicitor general). The question she was used to asking herself was: what do I want the law to be? But the business of judging is determining what the law is. Liberals see no difference — the law is what five justices say it is. But most Americans and a majority of the Court think otherwise. So the questions for her now are: how does she decide what the law is, what method does she use for separating personal conviction and constitutional interpretation, and does she have a view of the Supreme Court that is something other than as an uber-legislature? We’ll find out this summer.

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Kagan Nominated

Elena Kagan, as expected, was nominated to the Supreme Court. Her remarks were unexceptional and humble, appropriate to the occasion. Obama was partisan and ludicrous, even by his own standard. Justice John Paul Stevens was many things. But an exemplar of judicial restraint he was not. And Obama’s waxing lyrical on this score struck one as bizarrely insincere. Moreover, his attack on Citizens United and praise for Kagan’s role in it was wholly unnecessary and, frankly, wrong. It’s the law of the land, and his continual invective against it betrays a lack of respect for the Court.

Moreover, come to think of it, is Kagan now recused from cases that evaluate and would seek to modify or reverse that case? It would seem so — particularly because she, according to Obama, made such a big deal of choosing this case as her first to argue before the Court as solicitor general. Now that’s a small bonus for conservatives, if true. And Republican senators should pin her down on that point.

Elena Kagan, as expected, was nominated to the Supreme Court. Her remarks were unexceptional and humble, appropriate to the occasion. Obama was partisan and ludicrous, even by his own standard. Justice John Paul Stevens was many things. But an exemplar of judicial restraint he was not. And Obama’s waxing lyrical on this score struck one as bizarrely insincere. Moreover, his attack on Citizens United and praise for Kagan’s role in it was wholly unnecessary and, frankly, wrong. It’s the law of the land, and his continual invective against it betrays a lack of respect for the Court.

Moreover, come to think of it, is Kagan now recused from cases that evaluate and would seek to modify or reverse that case? It would seem so — particularly because she, according to Obama, made such a big deal of choosing this case as her first to argue before the Court as solicitor general. Now that’s a small bonus for conservatives, if true. And Republican senators should pin her down on that point.

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Elena Kagan — Stealth Nominee?

Elena Kagan is the prohibitive favorite for the Supreme Court. She has made it through one confirmation hearing for her current post as solicitor general and possesses academic credentials, a reputation for collegiality with conservatives, and a limited paper trail. Moreover, she is the closest we have to a stealth candidate among the front-runners. As Tom Goldstein notes, “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.”

Casual observers assume that a dean of Harvard Law School and a domestic-policy aide in the Clinton administration must have a sizable body of work reflecting her legal views. But not so. Paul Campos has read all there is to read — and it’s not much:

Yesterday, I read everything Elena Kagan has ever published. It didn’t take long: in the nearly 20 years since Kagan became a law professor, she’s published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review—a scholarly journal edited by Chicago’s own faculty—and a short essay in the school’s law review. She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing. (While it’s true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard’s dean, and for never having written anything intended for a more general audience, either before or after taking that position.)

Campos goes so far as to suggest that Kagan is a Harriet Miers type – minus the cronyism. He concludes:

Indeed, the most impressive thing about Kagan is that she seems to have a remarkable ability to ingratiate herself with influential people across the ideological spectrum. … As a private lawyer, Miers, after all, had a fairly good excuse for having no public views on the great legal issues of our day. For most of the past 20 years, Kagan’s job has been to both develop and publicize such views. That she has nevertheless managed to almost completely avoid doing so is rather extraordinary.

What to make of this? Well, if a Republican president were to select a person with such a skimpy written record, conservatives would be (and were with the Miers nomination) rightfully worried. But do the same concerns — ideological infidelity, intellectual mediocrity — really apply to Kagan? Let’s be honest, it works differently for liberals. Very few are tempted to moderate their views and slide rightward, while Republican-nominated jurists (David Souter, John Paul Stevens) have a history of “disappointing” their side. And while no one has claimed that Kagan has achieved greatness in legal scholarship, the assumption — rightly or not — is that the dean of one of the top law schools in the country must have some intellectual wattage. Nevertheless, liberal legal activists might have reason to be a bit nervous — after all, would a justice who lacks judicial chops be the best choice to sway Justice Kennedy on those all-important 5-to-4 decisions? Is she really the one who is going to go toe-to-toe with Justice Scalia? There is some risk there if Obama were to choose a lesser known quantity than an appellate judge such as Diane Wood.

Nevertheless, there are clues as to Kagan’s legal mindset. Indeed, one such clue is also her primary shortcoming. Stuart Taylor explains:

The one issue that could slow down Kagan’s confirmation is her impassioned effort as dean to bar military recruiting on campus to protest the law banning openly gay people from serving in the military, which she called “a moral injustice of the first order.”

Kagan carried this opposition to the point of joining a 2005 amicus brief whose strained interpretation of a law denying federal funding to institutions that discriminate against military recruiters would — the Supreme Court held in an 8-0 decision — have rendered the statute “largely meaningless.” This helps to explain the 31 Republican votes against confirming her as solicitor general.

Well, that might be enough to lose her a batch of GOP Senate votes, but would it derail her nomination? Probably not. And it might just give enough comfort to the left that Kagan is a “safe” pick for them.

Elena Kagan is the prohibitive favorite for the Supreme Court. She has made it through one confirmation hearing for her current post as solicitor general and possesses academic credentials, a reputation for collegiality with conservatives, and a limited paper trail. Moreover, she is the closest we have to a stealth candidate among the front-runners. As Tom Goldstein notes, “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.”

Casual observers assume that a dean of Harvard Law School and a domestic-policy aide in the Clinton administration must have a sizable body of work reflecting her legal views. But not so. Paul Campos has read all there is to read — and it’s not much:

Yesterday, I read everything Elena Kagan has ever published. It didn’t take long: in the nearly 20 years since Kagan became a law professor, she’s published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review—a scholarly journal edited by Chicago’s own faculty—and a short essay in the school’s law review. She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing. (While it’s true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard’s dean, and for never having written anything intended for a more general audience, either before or after taking that position.)

Campos goes so far as to suggest that Kagan is a Harriet Miers type – minus the cronyism. He concludes:

Indeed, the most impressive thing about Kagan is that she seems to have a remarkable ability to ingratiate herself with influential people across the ideological spectrum. … As a private lawyer, Miers, after all, had a fairly good excuse for having no public views on the great legal issues of our day. For most of the past 20 years, Kagan’s job has been to both develop and publicize such views. That she has nevertheless managed to almost completely avoid doing so is rather extraordinary.

What to make of this? Well, if a Republican president were to select a person with such a skimpy written record, conservatives would be (and were with the Miers nomination) rightfully worried. But do the same concerns — ideological infidelity, intellectual mediocrity — really apply to Kagan? Let’s be honest, it works differently for liberals. Very few are tempted to moderate their views and slide rightward, while Republican-nominated jurists (David Souter, John Paul Stevens) have a history of “disappointing” their side. And while no one has claimed that Kagan has achieved greatness in legal scholarship, the assumption — rightly or not — is that the dean of one of the top law schools in the country must have some intellectual wattage. Nevertheless, liberal legal activists might have reason to be a bit nervous — after all, would a justice who lacks judicial chops be the best choice to sway Justice Kennedy on those all-important 5-to-4 decisions? Is she really the one who is going to go toe-to-toe with Justice Scalia? There is some risk there if Obama were to choose a lesser known quantity than an appellate judge such as Diane Wood.

Nevertheless, there are clues as to Kagan’s legal mindset. Indeed, one such clue is also her primary shortcoming. Stuart Taylor explains:

The one issue that could slow down Kagan’s confirmation is her impassioned effort as dean to bar military recruiting on campus to protest the law banning openly gay people from serving in the military, which she called “a moral injustice of the first order.”

Kagan carried this opposition to the point of joining a 2005 amicus brief whose strained interpretation of a law denying federal funding to institutions that discriminate against military recruiters would — the Supreme Court held in an 8-0 decision — have rendered the statute “largely meaningless.” This helps to explain the 31 Republican votes against confirming her as solicitor general.

Well, that might be enough to lose her a batch of GOP Senate votes, but would it derail her nomination? Probably not. And it might just give enough comfort to the left that Kagan is a “safe” pick for them.

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Stevens to Retire — a Deserving Nominee This Time?

Supreme Court Justice John Paul Stevens is giving interviews and advising us that he will be departing during Obama’s term. Although Justices often time their departures to coincide with a president whom they imagine would nominate a like-minded justice, none has been so bold as Stevens to directly proclaim that as his rationale. The only question is when exactly he’ll pack it in. He suggested in Sunday interviews with the New York Times and Washington Post that he might have another year to go, but why then give the retirement-predicting interviews now?

Sen. Arlen Specter, who may speak for no one other than Arlen Specter, suggested that it would be best to wait a year. He proclaimed: “I think the gridlock in the Senate might well produce a filibuster which would tie up the Senate about a Supreme Court nominee. I think if a year passes, there’s a much better chance we could come to a consensus.” Well, that might be desirable for Specter, who faces a dicey reelection and might not want to be caught up in a contentious Supreme Court fight. But the Democrats are almost certain to lose Senate seats this year — perhaps a great many — so it seems that waiting a year makes confirmation of an Obama nominee less, not more, certain.

What we do know is that Stevens’ retirement is unlikely to have much of an impact on the outcome of many of the Court’s decisions. The irascible and often quirky liberal will be replaced by another liberal, and the Court’s 5-4 split on most tough cases is likely to endure.  It also seems that Obama, to some extent, learned his lesson with the not-very-wise-at-all Sonia Sotomayor, who was selected for diversity or empathy reasons, the president boasted. The suggested short list of nominees — Solicitor General Elena Kagan (former dean of Harvard Law School), Judge Diane Wood of the Seventh U.S. Circuit Court of Appeals, and Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit — are indisputably smart, capable, and qualified. They are there because they will be solidly dependable liberal votes and advance those arguments with intellectual vigor.  They may not be the ideal justices conservatives would have in mind, but this — losing Supreme Court seats – is what comes from losing the presidency.

Supreme Court Justice John Paul Stevens is giving interviews and advising us that he will be departing during Obama’s term. Although Justices often time their departures to coincide with a president whom they imagine would nominate a like-minded justice, none has been so bold as Stevens to directly proclaim that as his rationale. The only question is when exactly he’ll pack it in. He suggested in Sunday interviews with the New York Times and Washington Post that he might have another year to go, but why then give the retirement-predicting interviews now?

Sen. Arlen Specter, who may speak for no one other than Arlen Specter, suggested that it would be best to wait a year. He proclaimed: “I think the gridlock in the Senate might well produce a filibuster which would tie up the Senate about a Supreme Court nominee. I think if a year passes, there’s a much better chance we could come to a consensus.” Well, that might be desirable for Specter, who faces a dicey reelection and might not want to be caught up in a contentious Supreme Court fight. But the Democrats are almost certain to lose Senate seats this year — perhaps a great many — so it seems that waiting a year makes confirmation of an Obama nominee less, not more, certain.

What we do know is that Stevens’ retirement is unlikely to have much of an impact on the outcome of many of the Court’s decisions. The irascible and often quirky liberal will be replaced by another liberal, and the Court’s 5-4 split on most tough cases is likely to endure.  It also seems that Obama, to some extent, learned his lesson with the not-very-wise-at-all Sonia Sotomayor, who was selected for diversity or empathy reasons, the president boasted. The suggested short list of nominees — Solicitor General Elena Kagan (former dean of Harvard Law School), Judge Diane Wood of the Seventh U.S. Circuit Court of Appeals, and Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit — are indisputably smart, capable, and qualified. They are there because they will be solidly dependable liberal votes and advance those arguments with intellectual vigor.  They may not be the ideal justices conservatives would have in mind, but this — losing Supreme Court seats – is what comes from losing the presidency.

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Flotsam and Jetsam

Katie Couric will interview Obama live from the Super Bowl because we haven’t seen enough of him, and what he really needs is to communicate more with the American people. Well, that’s apparently what they think inside the White House cocoon. More cowbell!

Mickey Kaus thinks Obama’s excuse mongering about the health-care bill (“we were just about to clean those up [objections to the bill], and then Massachusetts’ election happened”) is a “stunning admission of incompetence.” So maybe the president does have a communications problem, after all. If you can’t read a calendar or follow election polls, you should keep it to yourself.

The Hill: “The House is unlikely to extend President George W. Bush’s cuts for taxpayers earning more than $250,000, Majority Leader Steny Hoyer (D-Md.) said Wednesday. … Allowing the tax breaks to expire at the end of the year will spark election-year criticism that Democrats are raising taxes. Congress approved the tax cuts in 2001 and 2003. Democrats are worried about losing seats in November’s midterm election, but Hoyer discounted the idea of his party losing seats solely because of a tax increase.” Well, he’s right — there is also all the red ink, ObamaCare, cap-and-trade, and the sleazy backroom dealings.

Foaming at the mouth and comparing Republicans to Hitler is not such a winning TV-ratings combination anymore. Andrew Malcolm tells us: ”Olbermann’s showboat is sinking. Listing in you-know-which direction. It’s as if he thinks talking LOUDER will keep his low cell battery from dying. Worst, Olbermann’s network president, Phil Griffin, is publicly praising him, always an ominous sign in television.”

Dana Perino reminds us: “The context in which the Bush administration was operating is important. President Bush authorized detaining terrorists as enemy combatants in November 2001, two months or so after 9/11. The Shoe Bomber was arrested in December 2001, only a month after President Bush’s order. At that point, there was no system in place to handle enemy combatants. … Perhaps the more interesting context is how months after the administration announced a High Value Detainee Interrogation Group they could not meet after Abdulmutallab’s attempt because … it hadn’t even been set up yet.”

Karl Rove points out: “The budget is filled with gimmicks. For example, the president is calling for a domestic, nonsecurity, discretionary spending freeze. But that freeze doesn’t apply to a $282 billion proposed second stimulus package. It also doesn’t apply to the $519 billion that has yet to be spent from the first stimulus bill. The federal civilian work force is also not frozen. It is projected to rise to 1.43 million employees in 2010, up from 1.2 million in 2008.” And it seems that the mainstream media and the public are increasingly on to this sort of stunt. That may account for all the Democratic retirements: ”Democrats are in the midst of the painful realization: Mr. Obama’s words cannot save them from the power of bad ideas.”

But Obama is telling Senate Democrats that “I think the natural political instinct is to tread lightly, keep your head down and to play it safe.” Translation: go ahead, pass ObamaCare, and join Martha Coakley, Jon Corzine, Creigh Deeds, Chris Dodd, and Byron Dorgan. The president tells them “the answer is not to do nothing.” I think “nothing” is looking like the best of bad options for the beleaguered Senate Democrats, who are now contemplating a serious reduction in their ranks.

The gamesmanship finally ends: “Massachusetts Senator-elect Scott Brown will be sworn in Thursday, according to Jim Manley, the spokesman for Senate Majority Leader Harry Reid, D-Nev. Brown’s lawyer today asked that the election results in his state be immediately certified so that he can be sworn in right away. Initially Brown was scheduled to take office next week, but has since decided he wants to vote on upcoming nominations for solicitor general, the General Services Administration and the National Labor Relations Board.” That probably means that Harold Craig Becker’s nomination is in trouble.

Katie Couric will interview Obama live from the Super Bowl because we haven’t seen enough of him, and what he really needs is to communicate more with the American people. Well, that’s apparently what they think inside the White House cocoon. More cowbell!

Mickey Kaus thinks Obama’s excuse mongering about the health-care bill (“we were just about to clean those up [objections to the bill], and then Massachusetts’ election happened”) is a “stunning admission of incompetence.” So maybe the president does have a communications problem, after all. If you can’t read a calendar or follow election polls, you should keep it to yourself.

The Hill: “The House is unlikely to extend President George W. Bush’s cuts for taxpayers earning more than $250,000, Majority Leader Steny Hoyer (D-Md.) said Wednesday. … Allowing the tax breaks to expire at the end of the year will spark election-year criticism that Democrats are raising taxes. Congress approved the tax cuts in 2001 and 2003. Democrats are worried about losing seats in November’s midterm election, but Hoyer discounted the idea of his party losing seats solely because of a tax increase.” Well, he’s right — there is also all the red ink, ObamaCare, cap-and-trade, and the sleazy backroom dealings.

Foaming at the mouth and comparing Republicans to Hitler is not such a winning TV-ratings combination anymore. Andrew Malcolm tells us: ”Olbermann’s showboat is sinking. Listing in you-know-which direction. It’s as if he thinks talking LOUDER will keep his low cell battery from dying. Worst, Olbermann’s network president, Phil Griffin, is publicly praising him, always an ominous sign in television.”

Dana Perino reminds us: “The context in which the Bush administration was operating is important. President Bush authorized detaining terrorists as enemy combatants in November 2001, two months or so after 9/11. The Shoe Bomber was arrested in December 2001, only a month after President Bush’s order. At that point, there was no system in place to handle enemy combatants. … Perhaps the more interesting context is how months after the administration announced a High Value Detainee Interrogation Group they could not meet after Abdulmutallab’s attempt because … it hadn’t even been set up yet.”

Karl Rove points out: “The budget is filled with gimmicks. For example, the president is calling for a domestic, nonsecurity, discretionary spending freeze. But that freeze doesn’t apply to a $282 billion proposed second stimulus package. It also doesn’t apply to the $519 billion that has yet to be spent from the first stimulus bill. The federal civilian work force is also not frozen. It is projected to rise to 1.43 million employees in 2010, up from 1.2 million in 2008.” And it seems that the mainstream media and the public are increasingly on to this sort of stunt. That may account for all the Democratic retirements: ”Democrats are in the midst of the painful realization: Mr. Obama’s words cannot save them from the power of bad ideas.”

But Obama is telling Senate Democrats that “I think the natural political instinct is to tread lightly, keep your head down and to play it safe.” Translation: go ahead, pass ObamaCare, and join Martha Coakley, Jon Corzine, Creigh Deeds, Chris Dodd, and Byron Dorgan. The president tells them “the answer is not to do nothing.” I think “nothing” is looking like the best of bad options for the beleaguered Senate Democrats, who are now contemplating a serious reduction in their ranks.

The gamesmanship finally ends: “Massachusetts Senator-elect Scott Brown will be sworn in Thursday, according to Jim Manley, the spokesman for Senate Majority Leader Harry Reid, D-Nev. Brown’s lawyer today asked that the election results in his state be immediately certified so that he can be sworn in right away. Initially Brown was scheduled to take office next week, but has since decided he wants to vote on upcoming nominations for solicitor general, the General Services Administration and the National Labor Relations Board.” That probably means that Harold Craig Becker’s nomination is in trouble.

Read Less