Elena Kagan and superlatives

President Barack Obama has nominated former Harvard Law School dean and current solicitor general Elena Kagan to replace John Paul Stevens as an associate justice on the Supreme Court.

The Internet is spreading around superlatives and other adjectives about her. Yes, she would be the fourth woman to sit on the high court. Yes, she would bring the court to a record number of three women serving simultaneously on the court.

However, there is one description that is not quite accurate. Writers on the Internet have asserted that she would be the youngest justice. This is not true. Clarence Thomas started on the court, at the age of 42 years. This compares to Kagan, who would start on the court at the age of 50.

Scotus blog on cases in which Souter to Sotomayor change would count

KEN RUSSELL ON SCOTUS BLOG NOTES WHERE CHANGE TO SOTOMAYOR WOULD MATTER

Ken Russell at scotusblog.com sought to provide some nuance to the usual interpretation that a liberal Sonia Sotomayor would not bring much change in contrast to a liberal David Souter.
He noted the following in considering instances in which the change of justice could result a change in the Supreme Court ruling.

The universe of possible cases in which Souter’s replacement might make a difference to the outcome is necessarily limited to cases decided by 5-4 margins with Justice Souter in the majority. This rules out the fair number of cases with traditional conservative-liberal 5-4 splits, in which Justice Souter was in the dissent - even if his replacement voted more conservatively than he did, that would just widen the margin, not change the result.

That leaves two other kinds of cases. The first are cases in which the liberals (including Justice Souter) attract a fifth vote, and it is possible that Judge Sotomayor would vote with the conservatives when Justice Souter voted with the liberals. One would predicate that - at least on hot-button issues, like abortion and affirmative action - the President would not have nominated Judge Sotomayor unless he were fairly confident that she would vote consistently with Justice Souter’s liberal-leaning record. But there may be less high-profile cases in which that would not hold true, perhaps in the criminal context where Judge Sotomayor has often sided with prosecutors and Justice Souter sometimes has not (although he has been far from a sure vote for either defendants or the Government in criminal cases). We will look for such cases in a subsequent post.

The second category of cases in which the change in Court personnel might make a difference, and the one we will review first, is in the relatively rare, but nonetheless recurrent, cases in which the Court splits 5-4 along non-traditional lines, with Justice Souter in the majority.

One example of such a case was United States v. Booker, 543 U.S. 220 (2005), in which a majority of the Court, including Justice Souter, declared the federal sentencing guidelines unconstitutional in part. The majority included liberal Justices Souter, Stevens, and Ginsburg, joined by conservative Justices Scalia and Thomas. Dissenting were Justices Rehnquist, O’Connor, Kennedy, and Breyer. If Judge Sotomayor had been on the bench at the time, and voted differently than Justice Souter, the case would have come out the opposite way.

While it is unlikely that the Court will revisit Booker anytime soon, the case continues to give rise to subsidiary questions. For example, this term in Oregon v. Ice, No. 07-907, the Court divided 5-4 over whether the principles animating Booker require that juries, rather than judges, find the facts necessary to the imposition of consecutive, rather than concurrent sentences of multiple offenses. If she is confirmed, Judge Sotomayor thus may play a critical role in the future development of this line of cases.

Thus far, there have been two “quirky lineup” cases decided this term in which Justice Souter was in the majority.

The first was Arizona v. Gant, in which a bare majority of the Court, including Justice Souter, voted to overturn (or at least narrowly cabin) a prior precedent that allowed the police to search a vehicle incident to the arrest of its driver without any showing of particular suspicion or need. The majority included Justices Stevens, Scalia, Souter, Thomas, and Ginsburg. Justice Breyer agreed that the old case was wrongly decided, but declined to vote to depart from it, on stare decisis grounds. Had Judge Sotomayor been on the Court, and agreed with Justice Breyer’s position or the position of the dissenters, the case would have come out differently.

The second such case was Vaden v. Discover Bank. This case involved a question about federal courts’ jurisdiction to here claims asking to compel arbitration under the Federal Arbitration Act. As a matter of statutory interpretation, Justices Ginsburg, Scalia, Kennedy, Souter, and Thomas, held that the federal court has jurisdiction to compel arbitration only if it would have jurisdiction to resolve the underlying dispute between the parties, looking at the type of claims asserted in the original complaint.

This will all be interesting to watch, after the Republicans bury themselves with their obstinacy in this summer's confirmation hearings.

Republicans, Sotomayor, ethnic voters and the long reach of political memory

REPUBLICANS PROJECTED TO ALIENATE HISPANIC VOTING BLOC FOR A GENERATION WITH OPPOSITION TO SOTOMAYOR
Just minutes after President Barack Obama's nomination of Judge Sonia Sotomayor to be the first Latina justice and the third woman on the Supreme Court, the Republican right was assembling the bandwagon with ideological vitriol against her.

Republicans to be mindful of how their rhetoric and conduct will resonate for many Latino voters. Diversity rings differently for different voters. For many voters in the white majority it sounds like quotas, of lowered expectations. But for many voters in groups that have been long excluded, it means that they (the excluded group) are no longer excluded, that America is including them, that the American government is finally representing them, that the American government is no longer a white government, but a government for the range of various communities that compose the country.
Simon Rosenberg, of the New Democrat Network:

"The movement of our nation from a majority white to a more racially complex society is perhaps the single greatest societal change taking place in our great nation today,'' he suggests.
"And if the Supreme Court is to have the societal legitimacy required to do its work, its justices must reflect and speak to the people of America of the 21st Century,'' he says.

And here, politicians and pundits are on board with sharing the belief that Republicans will have to tread very carefully in how they treat Sotomayor: Sam Youngman, "Senate GOP risks alienating Hispanics over court pick," May 26, 2009 from "The Hill":

Democratic strategist Guillermo Meneses said Republicans will stay in the minority for years to come if they try to bruise Sotomayor.

“If Republicans unleash the attack dogs on Sotomayor, they will be looking at becoming a regional, minority party for the next couple of decades,” Meneses said. “They really have written the playbook on how to antagonize Latinos, the fastest-growing political power in our nation.”

Former Republican Rep. Henry Bonilla (Texas), an ally of President George W. Bush's, told The Hill on Tuesday that Senate Republicans will have to be mindful of how they treat Sotomayor.
“That is the political reality,” Bonilla said. “In an ideal world, you would decide on a Supreme Court justice based on their qualifications. But in the real world, this is something Senate Republicans are going to have to deal with, and that's her ethnicity.”

So, we will have conservative Republicans blathering on about "dubious qualifications," "unqualified," "token." They will speak to the choir with their scathing rejection of her fitness for the high court. And how will many (yes, not all) Latinos will hear racism (or at least suspect racism) in the Republicans' opposition to her.
(Already, Latina.com reports that Rush Limbaugh has said that he wishes Sotomayor fails, and Mike Huckabee called her "Maria.")
Many activists in the Party of No believe that the best route is to cast the center aside and go with the faithful core. Yet as they play to the Fox News crowd, they need to consider how their tone and words resonate for viewers of the Univision, Telemundo and Telefutura television networks.
True, there are plenty of conservative Latino voters that will stick with the Grand Obstructionist Party, on issues such as personal libertarianism or conservative social values. But more broadly, we can envision the Republicans losing hefty enough numbers of Hispanic voters in marginal states, such as Nevada, Arizona, Florida, and maybe even Colorado. The buzzword in the context of this appointment is "Hispanic legitimacy." The Republicans of the Party of No will giver further reason for voters to see them as intolerant, if not old fashioned and exclusionary.
A recent poll said that 68 percent of voters did not see it remarkable that a Latina judge was selected.(Mark Silva at Chicago Tribune's "Swamp Politics, May 26, 2009.) While that might be true, the Republicans did poorly, broadly, in so many regions. The Republicans need to worry about the partisan fence sitters in that remaining 32 percent.
COOPERATIVE PLAYERS NOW BITTER PARTISANS, WITH EGG ON THEIR FACES?
Here's another interesting nugget: the Republicans will scream about how a) she is too political in her rulings or b) dubiously qualified. But they have to remember that not only did Bill Clinton appoint her to federal court positions, but Bush I (George H.W. Bush) gave her an earlier boost in 1992 to the federal judiciary. If she is so disreputable, key Republicans with judiciary assignments will have to explain why they supported --with their votes Clinton's 1998 promotion of Sotomayor. Also from Youngman's piece in "The Hill":

When former President Bill Clinton nominated Sotomayor to the U.S. Circuit Court, 25 Republican senators voted to confirm her. Seven of those 25 — Sens. Bob Bennett (Utah), Orrin Hatch (Utah), Susan Collins (Maine), Olympia Snowe (Maine), Thad Cochran (Miss.), Richard Lugar (Ind.) and Judd Gregg (N.H.) — still serve in the upper chamber. An eighth, Sen. Arlen Specter (D-Pa.), was a Republican at the time but switched to the Democratic Party earlier this year.

These Republicans will have to explain their sudden "realization" that Sotomayor is extreme or unqualified.

Manhattan Institute pundit vouches for Sotomayor's position on appeals courts

MANHATTAN INSTITUTE CONSULTANT VOUCHES FOR CONTEXT IN SOTOMAYOR'S STATEMENT ON PBS NEWS HOUR, May 26, 2009

Perhaps the leading talking point that the right wing pundits are using against Judge Sonia Sotomayor, is the charge that her statement on federal appeals courts and policy. The right, whom we can suspect will include Sean Hannity, Rush Limbaugh and Fox News in general, have been calling attention to a YouTube video in which Judge Sotomayor, at an academic conference, says that appeals courts are where "policy is made."

Yet, James Copland of the conservative, economic libertarian-minded New York City-based think tank, the Manhattan Institute, demonstrated intellectual integrity in properly putting the appeal court role in perspective.
From PBS News Hour, May 26, 2009:

JAMES COPLAND: Well, I'm largely satisfied with the answer on the sort of the Second Circuit or the Circuit Courts make policy answer. I think it was a bit of a misstatement, but I do think that it's, in fact, the case that the law of the land is largely determined by the appellate courts.

The Supreme Court takes a very small number of cases, and the Circuit Courts actually sort of set the law out there that's followed by all the trial court judges in the country. So I don't find that particularly objectionable.

Another point that Copland made, as well as the readily-posed to strike conservative opinion molders on cable TV and talk radio is the charge that President Barack Obama nominated her for justice, on the basis of her gender and her ethnicity.

Copland said that this nomination was "demographic selection." But Judge Sotomayor has a stellar resume. She had high honors in college and in law school. While studying at Yale Law School she was the editor of the Yale Law Journal.
In addition to serving in federal court she has recently also served as a part-time law lecturer and Columbia Law School since 1999. She has also performed similar law instruction work at New York University Law School.

Think of the numerous white male nominees that have successfully made their way into the Supreme Court. --nominees that often had less stellar credentials than Sotomayor. Where was the outcry when the Court was entirely white male (save for Marshall, O'Connor or Thomas)? When we have a top notch nominee, why not have a nominee whose selection is a corrective measure, diluting the dominance of males? Women are half of society; so shouldn't it be fitting that the Court have women as at least two of its nine members? Latinos are the second largest minority. Where is the outrage in choosing a highly qualified judge that happens to be a Latina?

Justices Scalia and Alito have Italian-American heritage and are Roman Catholic in their religious orientation. Thus they come from two groups that are heavily sought after group by the two political parties. If people are going to have outrage over Sotomayor and her Latina background, they are being disingenuous if they do not express the same outrage in Republican presidents' selecting two Italian-American Catholics for justice.