By The Way, This May Be The First Time The Phrase “Getting Up In The Grill” Was Used At The Supreme Court

Robert Barnes at WaPo:

A nearly unanimous Supreme Court ruled Wednesday that the First Amendment protects even hurtful speech about public issues and upheld the right of a fringe church to protest near military funerals.

Chief Justice John G. Roberts Jr. wrote that the Topeka, Kan.-based Westboro Baptist Church’s picketing “is certainly hurtful and its contribution to public discourse may be negligible.” But he said government “cannot react to that pain by punishing the speaker.”

“As a nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate,” Roberts said.

Justice Samuel A. Alito Jr. was the lone dissenter.

“Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case,” Alito wrote.

Ilya Shapiro at Cato:

Stepping aside from the emotions and bizarre facts, this case implicates all sorts of legal issues aside from the First Amendment.  A private cemetery can and should remove unwanted visitors for trespassing — but the Phelpses didn’t enter the cemetery.  A town can pass ordinances restricting the time, place, and manner of protests — but the Phelpses stayed within all applicable regulations and followed police instructions.  Violent or aggressive protestors can be both prosecuted and sued for assault, harassment, and the like — but the Phelpses’ protests did not involve “getting up in the grill” of people, as their lawyer put it during oral argument.

As the brevity of Chief Justice Roberts’s opinion confirms, there’s very little to this case and the Phelpses’ actions, ugly and objectionable as they are, are as constitutionally protected as a neo-Nazi parade.  If people don’t like that, they can change state laws to put certain further restrictions on protests near funerals or other sensitive areas — or federal laws in the case of military cemeteries — but they shouldn’t be able to sue simply for being offended.

Tom Goldstein at SCOTUSBlog:

The Court clearly felt considerable sympathy for the slain soldier’s family, but concluded that the First Amendment interests at stake were overriding.  “The record makes clear that the applicable legal term—‘emotional distress’—fails to capture fully the anguish Westboro’s choice added to Mr. Snyder’s already incalculable grief.  But Westboro conducted its picketing peacefully on matters of public concern at a public space adjacent to a public street.”  The Court continued:  “Westboro believes that America is morally flawed; many Americans might feel the same about Westboro.  Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. …    Speech is powerful.  It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain.  On the facts before us, we cannot react to that pain by punishing the speaker.  As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

The Court left undecided two important issues that it concluded were not squarely presented.  First, recognized that the government may regulate the “time, place, and manner” of speech and that the State of Maryland (where this protest was held) subsequently enacted a statute governing the circumstances in which funeral protests may be held.  The Court did not decide the constitutionality of that statute or other similar federal and state laws.  The Court may have been motivated to grant review in the case and still affirm in order to issue an opinion that, unlike the arguable implications of the court of appeals’ decision, did not call such statutes into question.

Second, the Court acknowledged that the plaintiffs had also brought suit on the basis of statements made by the defendants on a website.  But it concluded that the issue had been waived by not preserving it in the petition for certiorari and only briefly mentioning it in the merits briefing.  The Court was therefore able to limit its decision strictly to the context of funeral protests.

Dan Miller at PJ Tatler:

Justice Roberts, for the majority, noted that “Our holding today is narrow. We are required in First Amendment cases to carefully review the record, and the reach of our opinion here is limited by the particular facts before us.” That is nearly always the case, so much so that the Court does not generally bother to mention it in its decisions unless it intends the comment to have significant effect beyond a yawnIn his concurrence, Justice Breyer expanded on this cautionary note:

I agree with the Court and join its opinion. That opinion restricts its analysis here to the matter raised in the petition for certiorari, namely, Westboro’s picketing activity.  The opinion does not examine in depth the effect of television broadcasting. Nor does it say anything about Internet postings. The Court holds that the First Amendment protects the picketing that occurred here, primarily because the picketing addressed matters of “public concern.”

While I agree with the Court’s conclusion that the picketing addressed matters of public concern, I do not believe that our First Amendment analysis can stop at that point. . . . [S]uppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A’s use of unlawful, unprotected means.  And in some circumstances the use of certain words as means would be similarly unprotected (emphasis added).

Justice Alito expanded on the points raised in Justice Breyer’s concurrence at some length in his dissent at pages 23 – 36, particularly the analogy to a physical assault by A on B in order to gain an otherwise unlikely media audience for his views.  Both Justices Breyer and Alito seem to think that A’s  statement of views in the media presence would not shield him from liability for the assault, physical or verbal.

In raising the matter, Justice Alito seems  to rely on matters noted by Justice Breyer not to have been before the Supreme Court.  The majority opinion observes, in a footnote:

A few weeks after the funeral, one of the picketers posted a message on Westboro’s Web site discussing the picketing and containing religiously oriented denunciations of the Snyders, interspersed among lengthy Bible quotations. Snyder discovered the posting, referred to by the parties as the “epic,” during an Internet search for his son’s name. The epic is not properly before us and does not factor in our analysis. Although the epic was submitted to the jury and discussed in the courts below, Snyder never mentioned it in his petition for certiorari. See Pet. for Cert. i (“Snyder’s claim arose out of Phelps’ intentional acts at Snyder’s son’s funeral.” (emphasis added)). . . .

It is up to the petitioner for certiorari to do what Mr. Snyder evidently did not do. Unfair, perhaps, but here it serves to emphasize and give some flesh to the statements in the majority opinion as well as in the concurrence that the majority opinion is narrowly limited to the facts before the Supreme Court.

Blackfive:

This is a tough decision (and one which I grudgingly concede until I can read the actual decision) which is only tempered if you believe that there is a special place in hell for the Phelps family.

Also, please remember that these protests are stunts in order to evoke a visceral reaction from normal Americans in order to sue them in court and receive funds which keeps bread on the Phelps family table. Do not engage these horrible disgusting animals as that is exactly what they want.

Scott Lemieux at Lawyers, Guns and Money:

It’s hard to celebrate any victory for Phelps and his band of bigots, but that’s the point — you don’t need the First Amendment to defend popular speakers.

Appropriately enough — given her recent hypotheticals resting on the assumption that atheists expressing views in ways that aren’t sufficiently “solemn” for a public place is such an self-evidently intolerable outcome that preemptive attacks on other speech she finds ideologically objectionable are required — Althouse’s beloved statist reactionary Sam Alito was the only dissenter.   You’d think that this case would kill of his wholly unearned reputation for moderation, but it seems as durable as Newt Gingrich’s wholly unearned reputation as an intellectual.

Andy Barr at Politico:

Sarah Palin voiced disappointment with a Supreme Court decision Wednesday protecting the First Amendment rights of anti-gay protesters at military funerals.

“Common sense & decency absent as wacko ‘church’ allowed hate msgs spewed@ soldiers’ funerals but we can’t invoke God’s name in public square,” Palin tweeted .

Continuing With “The Koch Fight”

Christian Hartsock at Big Government:

I recently took a two-day trip down to Palm Springs to attend an event called “Uncloaking the Kochs” hosted by Common Cause. Accompanied by my dear friend, former assembly candidate Alvaro Day, I traveled as an independent investigative journalist, and not in any official capacity on behalf of Big Government or Breitbart.com (though I was pleasantly surprised to run into a familiar friend of mine on rollerblades jovially inviting everyone to Applebee’s).

[…]

We were then ushered outside to the parking lot across from the hotel in which the Koch brothers were holding a meeting, whereupon we were encouraged to yell at the building, decrying not only the Kochs, but Justices Clarence Thomas and Antonin Scalia for their Citizens United ruling. Oh, and Fox News while we were at it.

We were joined by at least half a dozen busloads of public sector union members and common demonstrators from AFFCE, The Ruckus Society, 350, Greenpeace, Code Pink, and the Progressive Democrats of America, among others, without whose valuable contributions to the yelling, the rally would’ve been just a lousy bust. Video camera in hand, I purposely engaged them to get beyond their programmed talking points, only to find some rather colorful agenda items – particularly for Justice Thomas.

In post-Tucson America, where for the past few weeks a chorus of voices on the left have amplified their attacks on the “racist tea party,” “racist conservatives,” “racist Republicans,” and their “violent, irresponsible rhetoric” to the degree of accomplice-to-murder accusations, I figured a left-wing rally such as this would also be a demonstration of the left’s ideal, self-proclaimed rhetorical composure.

And having done extensive video coverage interviewing demonstrators in over fifty tea parties in forty-five cities in twenty-five states yet finding a total of zero instances of the “racist” and “violent” stigmas the left relentlessly assures us are true, I certainly didn’t expect to find almost every imaginable instance at one single “progressive” rally. But who was I to make presumptions?

So if on top of perpetuating the perennial narrative of the exclusively right-wing corporatist machine, “progressives” want to further their accusations of alleged predominant “racism” and “violence-baiting rhetoric” in the conservative movement, then game on.

Weasel Zippers:

This event was attended by public sector union members, demonstrators from AFFCE, The Ruckus Society, 350, Greenpeace, Code Pink, and the Progressive Democrats of America, among others. Here’s small sample of quotes about Supreme Court Clarence Thomas:

“Put him back in the fields, he’s a dumb-sh*t scumbag, put him back in the fields”

“String him up”

“Torture him”

“Bad things”

“Cut off his toes and feed them to him”

Bruce McQuain at Q and O:

Pretty much speaks for itself, doesn’t it?

Moe Lane at Redstate:

I know, I know: there is something kind of disturbing about seeing people relaxed enough to express sick and twisted rhetoric like this without fear of consequences – and it’s definitely infuriating that you and I have to watch and filter every word we say or write, or at least be aware that if those words can be twisted, they will be.  But look on the bright side: if this crowd is any indication, being able to spout their racist filth freely has the side effect of gradually lowering their IQs to room-temperature levels.  Given that the Left generally likes to sneer at the Right’s collective intelligence, well… karma: it’s what’s for dinner.

Still, I want to show you the worst person in this video.  And let me tell you, she had some competition.

Ed Morrissey:

Granted, the cameraman is trying to get the people to say something outrageous, but he also doesn’t have to try very hard. He asks people at the rally what “we” should do after impeaching Clarence Thomas to get justice for Anita Hill, and he gets some mighty interesting answers:  Send him “back to the fields.” “String him up.” “Hang him.” “Torture.” One older woman wants his wife Ginny Thomas strung up as well. A younger and more creative woman wants Justice Thomas’ toes chopped off and forced-fed to him. Thomas isn’t the only one to get the necktie treatment; one protester wants Fox News executive Roger Ailes to get hung as well.

RB at The Right Sphere:

But let’s get right down to the brass tacks, shall we? Racism.

How long have we heard the steady mantra: “The Tea Party is racist”? Since day one. Nearly every Leftist pundit, columnist, and “journalist” on the planet has at some point or another implied or flat out stated that the Tea Party movement is racist. Congressmen have even accused Tea Party / Anti-HCR protesters of using the “n word” and spitting on them during rallies. To this day many still claim this happened despite the lack of evidence.

Are there racists who are also Tea Partiers? Of course. As the video proves, there are racists everywhere… even on the Left. Do those racists speak for the entire movement? Of course not. Do those racists represent even a significant portion of the movement? Only insofar as the racists in the video above represent a significant portion of the Left. But that has never stopped the Left from hurling their accusations against the entire conservative movement or the Tea Party, has it?

Let’s just imagine if the video above was taken during a Tea Party rally and several participants stated that a sitting US Supreme Court Justice should be sent “back to the fields” or “strung up”. Picture the news coverage. Predict what Chris Matthews or Rachel Maddow or Keith Olbermann (if he still had a show) would be saying right now and over the next few days. It would be non-stop. Democrat Congressional members would be using the tape as “proof” of what is really behind the opposition to ObamaCare or any other piece of legislation they want to get passed.

“The racist Tea Party.” That’s all you’d hear.

Walmart Woes

Erik Hayden at The Atlantic with a round-up.

SCOTUSBlog:

The Supreme Court stepped into two major controversies on Monday, agreeing to sort out when a class-action lawsuit may be filed when employees are seeking back pay for alleged workplace discrimination, and to clarify whether companies claimed to be a major source of global warming can be sued under the law of nuisance.  The first issue is raised in an appeal by the discount retailer, Wal-Mart Stores; the second an appeal by four large  electric generating companies that have been sued by a group of state governments.  The cases are likely to be heard in March or April.

A federal judge in San Francisco has cleared the way for a class of at least 500,000, and perhaps as many as 1.5 million, present and former women employees of Wal-Mart to sue the huge chain over alleged sex bias throughout its 3,400 stores in the U.S.   The Court agreed to hear one issue raised by the company, and added a question of its own.  The outcome will not decide whether the company did engage in  discrimination, but only whether the lawsuit may proceed as a class-action.  Potentially, billions of dollars are at stake.

The first question will be whether, under Federal court Rule 23, a lawsuit may seek a money verdict — in this case, a claim for back pay — when the class was created under a provision that limits remedies to corrective court orders, not money.   Besides agreeing to hear that, the Court told the parties to file briefs and prepare to argue on a second question — whether the class was a proper one, under Rule 23, when it was cleared to go forward under Rule 23(b)(2).   It is unclear whether the Court, if it answered that second question in the negative, would be signaling that the class case might still proceed under a different part of Rule 23 — part (b)(3), which does allow money claims.

Wal-Mart’s petition had raised a second question that embraced the broader argument that no class should have been approved at all, since the claims made by the women employees were so disparate and so diffuse that they really had nothing in common, and that, as a result, Wal-Mart would not have been able to mount a defense to such claims.   The Court rewrote Wal-Mart’s second question, without making it clear exactly what arguments the lawyers should now be making in addition to whether a money claim could be made in this case.

Dahlia Lithwick at the XX Factor:

The six plaintiffs in the suit claim that despite the enormous size of the class, Wal-Mart’s decision-makers determine pay and promotion based on a rigid and highly centralized “strong corporate culture that includes gender stereotyping.” Their claim is that women constitute more than 70 percent of Wal-Mart’s hourly workforce but less than one-third of salaried management. They seek back pay, punitive damages, and changes to Wal-Mart’s hiring and promotions policies. Wal-Mart’s liability may be in the billions of dollars. Aside from the size of the class, Wal-Mart argues that the lower courts used the wrong standards to certify the class.

This is a high-stakes appeal that has elicited strong responses from the Chamber of Commerce on one hand, and those who worry about the need for class-action suits to protect worker rights on the other. It’s going to garner an enormous amount of interest from those who contend that big business never loses at the Roberts court and that workers can’t catch a break. It may also prove an early litmus test for whether the presence of three women at the high court will in any way shape the debate about gender discrimination.

Marcia Coyle at The Blog Of Legal Times:

The merits of the case, however, are not before the justices. Instead, the Court will focus on whether the class was properly certified.

“We welcome the Supreme Court’s limited review of the class certification decision in this case. As that decision was based on a vast body of evidence, we are confident that the decision to certify the class was sound,” said the plaintiffs’ lead co-counsel Joseph Sellers, partner in Washington’s Cohen Milstein Sellers & Toll, in a statement. “We believe the Court will reach the same decision after reviewing the record before the U.S. District Court for the Northern District of California, where class certification was granted in June 2004.”

Wal-Mart has lost the class action issue four times in lower court rulings, noted Sellers.

Wal-Mart, represented by a team of lawyers from Gibson, Dunn & Crutcher, led by partner Theodore Boutrous, contends that the class was improperly certified, both as to its size and type. It argues that the plaintiffs, who are seeking back pay, were certified under Federal Rule of Civil Procedure 23(b)(2), used for classes seeking injunctive relief and, instead, should have been required to meet the tougher standards for classes seeking damages.

In the grant of review Monday, the justices ask the parties to address whether claims for money damages can be certified under 23(b)(2) as well as whether certification under that rule was consistent with the certification requirements of Rule 23(a).

Carrie Lukas at The Corner:

It will be interesting how this plays out. Walmart claims that its employment practices “expressly bar discrimination and promote diversity,” and it is hard to imagine that the official employment practices would do the opposite. The crux of this case will likely be the outcomes of that employment system: If, on average, women have ended up earning less than men with similar job titles, that will be evidence of discrimination.

Those familiar with debates about the so-called wage gap (the difference between the earnings of the median working man and working woman) know that there are many reasons other than discrimination why women sometimes end up earning less than men do. As a report for the Department of Labor (conducted using data from the Current Population Survey) concluded:

Although additional research in this area is clearly needed, this study leads to the unambiguous conclusion that the differences in the compensation of men and women are the result of a multitude of factors and that the raw wage gap should not be used as the basis to justify corrective action. Indeed, there may be nothing to correct. The differences in raw wages may be almost entirely the result of the individual choices being made by both male and female workers.

It’s an important fact to keep in mind: Even if statistics show that men and women earn different amounts, discrimination isn’t necessarily to blame.

Monica Potts at Tapped:

I’m not expecting the current court to side against Wal-Mart, however. At every opportunity, the Roberts Court has expanded the rights of corporations. Moreover, as Tiku points out, the issue might even split Obama’s two appointees. Wal-Mart twice cited Justice Elena Kagan, who wrote an influential law-review note on class certification while she was a student at Harvard.

But class-action suits are important ways for a discriminated class of people to be compensated. If Wal-Mart as an institution discriminates against women, it seems perfectly reasonable that those affected stretch across the country and through the entire corporate hierarchy. Women already have a hard time seeking redress against discrimination; it’s disappointing to consider that it’s about to get even harder.

Don Suber:

For years, conservatives have called for tort reform. Legislating tort reform is difficult because so many lawyers like it (including the defense attorneys for businesses) and really the courts do not like to be told what to do.

The class-action lawsuit is the biggest paid. It always seem the lawyers get millions while the “victims” get coupons for prices off on their next purchase from the maker of the defective product.

Walmart may help end that abuse.

Felix Frankfurter, You Are Outta There!

H/T Jon Chait at TNR

James Fallows:

Lifetime tenure for Supreme Court Justices is another of the ideas from 200-plus years ago that might well be adjusted if Madison, Adams, et al had a chance to re-do the Constitution in light of current circumstances. It is inconceivable that people as practical-minded as they would have come up with today’s “two Senators for each state” model, California and Wyoming alike, which contributes to the paralysis of the Senate. (As argued here; main point is that when the Constitution was agreed to, the states were much closer in population size, rather than the 70-to-1 difference between today’s most and least populous states.) And they might well have rethought the wisdom of open-ended places on the Court.

Average life expectancy at birth during the late 1700s was 30-some years, versus 70-some now. Of course that figure is misleading, since so many people died very young — and those who reached age 50 often chugged along into their 80s. Still, circumstances have clearly changed. Part of the thick academic literature on the topic is a Harvard Journal of Law and Public Policy article (PDF here), which points out that from the founding of the Republic until 1970, the average tenure of a Justice was under 15 years; since then, it’s over 26 years. As a result, actuarial considerations have become fundamental to the modern nominating process, to what the Founders would recognize as a distorting degree. It is a “wasted” appointment to choose someone over age 60, since a nominee in his or her 40s (Clarence Thomas, age 43 when chosen) or early 50s (Elena Kagan, 50) can likely cast that many more votes over the years.  The idea that we’re locking in policy for the next three or four decades makes the confirmation process all the more embittered and partisan — and dishonest, as nominees, whether John Roberts or Elena Kagan, pretend they have no settled views. Older and ailing Justices may hold onto their seats unnaturally long, too, if the “wrong” party controls the White House.

“We believe the American constitutional rule granting life tenure to Supreme Court Justices is fundamentally flawed, resulting now in Justices remaining on the Court for longer periods and to a later age than ever before in American history,” Stephen Calabresi and James Lindgren, authors of the Harvard Journal article, say. I agree with them too. This is not a new idea, and like many other Constitutional adjustments it’s probably not going to happen. But we’d be better off it if did.

More Fallows

John Sides:

This presents a nice opportunity to review some political science on this subject, in particular Justin Crowe and Chris Karpowitz’s article, “Where Have You Gone, Sherman Minton? The Decline of the Short-Term Supreme Court Justice” (gated; ungated).Crowe and Karpowitz make several important empirical points:

First, any changes in the tenure of justices over time is not due to an increase in the number of justices serving long terms. There have always been those justices on the Court. Instead, there has been a decrease in the number of short-term justices, as the title of the article suggests. This is what a measure like “average tenure” conceals. Crowe and Karpowitz write:

Our analysis suggests that mean tenure on the Court in any given period is substantially influenced by the presence or absence of the short-term justice. The long-term justice has always been—and will likely continue to be—a feature of our constitutional system. The short-term justice has been a consistent presence in every period except the most recent. When we take this development into account, we see that using measures of central tendency as evidence of an inexorable upward trend obscures the full picture. To be sure, we are currently at a historical peak in average service, though we should be careful not to over-interpret this statement about patterns of Court service. But for the absence of the short-term justice, all other trends are similar to other periods in American history

Second, justices tend to serve short terms because of illness and death in many cases but, in others, because of higher ambition (John Jay), dissatisfaction with the job (Jay again, also Minton), and occasionally scandal (Fortas).

Third, and consequently, the disappearance of the short-term justice is not just a function of better medical treatments and longer lifespans. (There were plenty of people living long lives and serving long terms on the Court, even in the early years of the United States.) It is also a function of this simple fact: serving on the Court is a much better job these days. Consider these changes, all quotes from Crowe and Karpowitz:

• …structural changes in the justices’ working conditions, such as the elimination of circuit-riding and the expansion of support staff (secretaries, marshals, and law clerks), as well as more favorable retirement provisions.

• …while the Court’s workload has decreased, the significant expansion of certiorari jurisdiction has meant that the justices’ control over it has increased, thereby allowing the Court to focus its attention on constitutional issues of broad national significance…the justices have assumed an increasingly prominent and meaningful role in core aspects of American political life.

• To the extent that these issues are controversial among the public and politicians alike, they are no less so among the justices. As a result, on a closely divided and ideologically polarized Court, one vote can mean the difference between upholding and striking down laws that implicate foundational constitutional and democratic values.

Simply put, justices have more power and prestige than they used to. No wonder few want to leave the bench quickly.

But is this really a problem? Crowe and Karpowitz find it hard to muster an easy case for term limits. On the one hand, more frequent rotation through the Court could make it more accountable — i.e., closer to the public. On the other hand, this presumes that the Court should hew toward the majority’s will, and that is a problematic criterion. And, in any case, the Court is often sensitive to public opinion, even when composed of long-serving justices.

Other advocates of term limits argue that they would reduce the divisive politics of Court appointments. This is the motivation for Fallows’ post. Crowe and Karpowitz are skeptical, and I tend to agree. I doubt that presidents, Senators, interest groups, and others would suddenly stop caring as much if justices served only 6 or 8 or 12 years. A lot of the divisiveness stems from party polarization in Congress, which is not likely to go away anytime soon. Under term limits, I would foresee an increasing number of equally divisive Court battles. Indeed, they might become even more divisive because leaders would know exactly when vacancies would arise, making them even more a dominant consideration in campaigns.

Andrew Gelman:

I tentatively disagree with John on this one. It’s not that I think any of his points are wrong, exactly, and I’m sure that John is much more knowledgeable about the political science literature than I am. It’s more a matter of emphasis. One thing I’ve noticed over the years is that political scientists, at least those studying American politics, are often skeptical about proposed reforms, perhaps in reaction to the overselling of such proposals by activists.

In this case, John has a bunch of reasonable arguments but it seems to me that he’s spinning them in the skeptical direction, but they could just as well be spun in the direction of reform. Let me go through the arguments in turn:

1. Long-term and short-term judges. John writes:

Any changes in the tenure of justices over time is not due to an increase in the number of justices serving long terms. There have always been those justices on the Court. Instead, there has been a decrease in the number of short-term justices.

That’s fine, but it doesn’t at all counter the argument that term limits will reduce the long terms.

2. Changes in working conditions. John writes:

Justices have more power and prestige than they used to. No wonder few want to leave the bench quickly.

This makes sense to me, and it seems related to the general pattern in our society that life is getting better for people at the top. I agree with John that this is evidence neither in favor nor against judicial term limits.

3. Divisive politics. John writes:

Other advocates of term limits argue that they would reduce the divisive politics of Court appointments. . . . Crowe and Karpowitz are skeptical, and I tend to agree. I doubt that presidents, Senators, interest groups, and others would suddenly stop caring as much if justices served only 6 or 8 or 12 years.

John seems to be making a reasonable point here. With the current partisan polarization and the current huge power of the Supreme Court, it makes sense to see ideological battles over judicial nominees. The surprise, maybe, is that this hasn’t happened more already.

4. Age. John writes:

The last argument is that the Court would benefit from youthful vigor. Advocates of this argument also point to the decline in mental acuity that some older justices have faced. Crowe and Karpowitz note, however, that if acuity is the criterion, then term limits are a not an ideal solution, since mental decline could strike even at a younger age. Coming up with an acuity test for justices would be challenging, to say the least.

I don’t buy this argument at all. Yes, mental decline could strike even at a younger age. But there’s a correlation with age, no? It seems silly to dismiss this argument just because the correlation isn’t 100%.

Beyond this, one argument I’ve heard for term limits is that, under the current system, presidents are motivated to nominate youngsters because then they can be on the court forever. With a fixed term, this motivation would be reduced (even if not completely removed).

Matthew Yglesias:

Andrew Gelman and John Sides have an interesting exchange about the merits of creating fixed tenure for Supreme Court justices. I agree with Gelman that seems like a case where Sides is suffering a bit from an occupational hazard of political scientists confronted with proposals for reform—proponents oversell them, and political scientists become unreasonably skeptical in response.

At any rate, I’m a proponent of this reform. The strongest argument I can make in favor is that it would create a less-random relationship between election outcomes and the composition of the judiciary. Right now, if John Roberts and Samuel Alito decided to go out on a double-date with their wives, and a drunk driver hits their car killing all four passengers, Barack Obama would wind up reshaping the course of American law for decades. If instead he merely found himself appointing replacements to serve out their terms we’d much reduce this kind of arbitrariness.

Then there are two related points. One is that the current system creates too many incentives for a physically or mentally incapacitated justice to try to hang on to his seat until someone more ideologically congenial gets into the White House. Conversely, the current system causes the age of a nominee to loom too large in the decision-making calculus. In exchange, life tenure accomplishes basically nothing that a longish fixed term plus a pension wouldn’t accomplish. America makes it hard to tinker with the constitution (a mixed bag, in my view) so this almost certainly won’t happen unless some turn of events focuses national attention on the potential problems embedded in the current system. But I think making the point that this is a bad system is important anyway, since there’s always the risk that foreign countries engaged in democratic transitions will decide to emulate our model.

Jonathan Bernstein:

As I’ve said, I tend to be very conservative about institutional design.  I’m suspicious of Seligism — Bud Selig, the current baseball commissioner, is constantly supporting changing long-standing design because some minor flaw turned up, without stopping to consider how various portions of the design are interrelated, or that minor flaws are inevitable regardless of design.  I’m even more suspicious of those who turn frustrations with losing in a democracy into enthusiasm for changing the system.  On the other hand, I’m not against all reform.  Serious institutional breakdown, especially with a good case for inherent design flaws, should be met with reform — the current most obvious case within American politics is California, with its impossible budget politics and destructive initiative process.  Another reason to support reform is when the underlying reality that the rules are designed for changes, so that stable rules yield an unstable political system.

One can make a pretty good argument, I think, that lifetime appointments for Supreme Court Justices fit that last category.  As Linda Greenhouse reported back in 2007, the actual length of terms for Justices has gone up dramatically since 1970 (from an average of about 15 years before then to an average of about 26 years since).  Since life expectancy continues to grow, I expect that number to only continue to increase in the future.  And the longer each appointment lasts, the more valuable it becomes, which pushes presidents to choose younger and younger nominees (although I think we’re fairly close to the lower limit on that).  Elena Kagan, should she be confirmed, may well be on the court for forty years.  At some point, I think that’s a very different system than that the Constitution envisioned.

As far as the advantages and disadvantages of the present system, Yglesias identifies two problems.  The first one, which has to do with the process in which Justices are groomed and selected, doesn’t really bother me much; as far as I can tell, the most recent selections under Bill Clinton, George W. Bush, and Barack Obama are all highly qualified and capable, so I’m not really worried about what they had to do to get there or about those who were blocked because the system works against them.  It is true, however, that the high value of each pick creates incentives to selected a certain kind of nominee: young, ideologically reliable, and ambitious enough for the Court that he or she has known from an early age to avoid saying potentially controversial things.

The second problem is that the system produces a lot of random results.  I do think is a serious flaw.  There’s no reason that the election of Jimmy Carter (who had no Court openings) should be worth less than George H.W. Bush.  Nor is it reasonable that a president can be far more influential because his nominee lives another forty years, while that of another drops dead after a decade.  Both of these always existed, but they matter far more when average tenure doubles.

The third problem is that it’s not exactly clear why the results of elections decades ago should have so much influence in governing us today.  Justice Stevens was nominated by President Ford (and for what it’s worth, that’s Unelected President Ford) and confirmed by an extremely liberal Senate.  And then Americans elected Carter, and then Reagan, and then Bush, Clinton, Bush…and still, the dead hand of the 1972 presidential electorate and the 1970, 1972 and 1974 electorates and the Senators they chose controlled 1/9th of one of three coequal branches.  Abortion is important, right?  Roe vs. Wade was decided after Nixon was reelected, and after two-thirds of the Senators who confirmed Stevens were chosen.  Of course, the nature of the Constitutional system, including not only lifetime judicial appointments but also long terms for the president and Senators, imply that the Framers intended at least some of our past decisions to govern the present and the future.  But again, at some point a difference in degree becomes a difference in kind.

More Sides:

After my post, Andy and then Matt Yglesias took issue. Let me respond briefly. (NB: All of this debate necessarily entails the willing suspension of disbelief: we’re not enacting term limits for Supreme Court justices any time soon. But it’s still fruitful to debate the idea on its merits.)

Andy’s got 4 points. The first is on the Crowe and Karpowitz finding that it’s the short-term justices who have disappeared. Andy writes:

That’s fine, but it doesn’t at all counter the argument that term limits will reduce the long terms.

Actually, it does counter the argument, if the proposal is rotating eighteen-year terms.

Only his fourth point really represents a disagreement with anything I wrote. Andy suggests that age could be a useful proxy for mental acuity:

Yes, mental decline could strike even at a younger age. But there’s a correlation with age, no? It seems silly to dismiss this argument just because the correlation isn’t 100%.

It just seems to me that term limits are a pretty blunt instrument for ensuring mental acuity. See also Frank Cross’s comment.

Yglesias suggests these reasons for supporting term limits:

…a less-random relationship between election outcomes and the composition of the judiciary.

…the current system creates too many incentives for a physically or mentally incapacitated justice to try to hang on to his seat until someone more ideologically congenial gets into the White House.

Conversely, the current system causes the age of a nominee to loom too large in the decision-making calculus.

Let’s tackle these in reverse order. This concern about the emphasis on young nominees is ubiquitous — see also Jon Bernstein and commenter Zorro for the Common Good. But the average age of the nominees isn’t really any different now than in the past. Go to p.801 of the Calabresi and Lindgren piece that James Fallows cites in his post on this subject. The average age of nominees was lower in the initial years of the Republic (about 48), but since then it’s varied between 52 and 57. The average in the period from 1971-2006 is 53 — down a little bit from the first half of the 20th century, but no different than it was for most of the 19th century. I doubt it can go much lower. It’s hard for potential nominees to be seen as sufficiently qualified for the Court otherwise.

Life tenure could create an incentive to nominate younger people, but it doesn’t seem to be happening in a real significant way. An average of 53 certainly doesn’t strike me as “too young.”

On the incentives for an incapacitated judge to hang on. It seems likely that this happens every once in a while. How serious a problem this is, I really don’t know.

More Gelman:

In my previous entry I framed John’s skepticism about term limits as an example of a more general pattern of political scientists being all too ready to dismiss proposed reforms, perhaps in reaction to the overselling of such proposals by activists. I see political scientists, as a group, as often being too committed to whatever the current system is, for example pooh-poohing campaign finance reform because it can be evaded or dismissing open primaries because there’s no convincing evidence that they will get rid of partisan polarization.

In contrast, I often feel that a reform can be a good idea, even if it doesn’t solve all the problems.it’s intended to address. For example, I think gerrymandering is way overrated as a political problem—in 1994, Gary and I even wrote a paper called Enhancing Democracy Through Legislative Redistricting in which we showed that existing redistricting (gerrymandering and all) led to more competitive elections—but I’d still support a move toward nonpartisan redistricting.

From the other direction, though, it can make sense to ask why a particular reform is being suggested at a particular time. In some cases, it’s clear: for example, the recent proposals to change Senate rules are a direct response to the sharp increase in the use of the filibuster in recent years. I’m not sure if there’s anything so topical motivating the Supreme Court discussion; maybe it’s just an issue that comes up from time to time. In any case, in response to my generic reaction that John is being a typical political scientist by reflexively dismissing a reform proposal, John might well respond that I am showing the generic reaction of naive reformers to give a default positive view to whatever flavor-of-the-month reform happens to be talked about by pundits right now.

As I noted above, my differences with John on this issue seem more of a matter of emphasis than anything else. Are lifetime appointments and long terms basically OK, given that this system has been in place for more than two centuries (as John says), or would it make sense to change the rules (as I’m inclined to think)? In any case, the data that John and others bring to the table help us to understand these arguments.

UPDATE: Andrew Gelman at FrumForum

Elena! We’ve Just Confirmed A Girl Named Elena… And Suddenly That Name Will Never Be The Same To Us

Paul Kane at The Washington Post:

The Senate confirmed U.S. Solicitor General Elena Kagan on Thursday as the 112th justice to the Supreme Court, making her the fourth woman ever to sit on the high court.

On a 63 to 37 vote, Kagan became President Obama‘s second lifetime appointment to the court in the past year — the vote was held a year after Sonia Sotomayor won 68 votes for her confirmation as the court’s first Latina justice.

Five Republicans supported Kagan, 50, to succeed retired justice John Paul Stevens. One Democrat, Ben Nelson (Neb.), was opposed. Kagan, a self-described progressive, is not likely to tilt the balance of the court, given Stevens’s role as a leading liberal jurist the past three decades.

Steve Benen:

By modern standards, Justice Kagan’s 63 confirmation votes isn’t exactly an overwhelming display of support. Of the Supreme Court’s nine current justices, 63 ranks fairly low — Stevens (98), Kennedy (97), Scalia (98), Ginsburg (96), Breyer (87), Roberts (78), Sotomayor (68) had more, while only Thomas (52) and Alito (58) had fewer.

As for the politics, I’m reminded of something Sen. John McCain (R-Ariz.) said two years ago about the Senate and high court nominees: “When President Bill Clinton nominated Stephen Breyer and Ruth Bader Ginsberg to serve on the high court, I voted for their confirmation, as did all but a few of my fellow Republicans. Why? For the simple reason that the nominees were qualified, and it would have been petty, and partisan, and disingenuous to insist otherwise. Those nominees represented the considered judgment of the president of the United States. And under our Constitution, it is the president’s call to make.”

In the last 12 months, McCain voted against Sotomayor and Kagan.

Allah Pundit:

Truth be told, though, the final margin here was kabuki in the same way that the final votes on ObamaCare were kabuki: Once the margin needed for passage was secured, everyone else was free to vote however they needed to in order to protect themselves at the polls. The GOP clearly didn’t want to risk a filibuster on someone as bland as Kagan, preferring to preserve the novelty of the nuclear option for maximum effect in case The One nominates a bombthrower next time, so people like Scott Brown got to vote no today even though I bet he would have been a yes had Reid really needed him. Speaking of which, why did Scotty B. vote no? Looks like he’s more worried about a tea-party primary challenge at this point than he is about pissing off centrist Massachusetts Dems in the general. Eeenteresting.

With Stevens gone, the oldest justice on the Court now is Ginsburg at 77. Which means it might be awhile yet before we get a truly atomic confirmation hearing involving The One trying to replace a Republican appointee. Apres Ruth, le deluge

Michelle Malkin:

The confirmation took place as a thunderstorm raged outside, prompting several wry Tweets as the votes were tallied:

@keithcrc: SuperStorm pounds DC just as #Kagan confirmation vote is taken #someonesnothappy

@kathyrnlopez: the thunderstorms over dc echo my kagan-vote mood this afternoon.

@Winghunter: @michellemalkin If they think that’s a storm, they ain’t seen nuthin’ yet.

Here’s hoping…

Damon Root at Reason:

It’s official. The U.S. Senate has confirmed Elena Kagan to the Supreme Court by a vote of 63-37. What sort of justice will she turn out to be? For some sobering predictions, here’s a sampling of Reason’s coverage of Kagan’s ideas and her Senate confirmation hearing:

Natural Reluctance. Elena Kagan’s disturbing refusal to acknowledge pre-existing rights. By Jacob Sullum.

Elena Kagan on Free Speech, Executive Power, and Judicial Restraint. Will Obama’s Supreme Court pick show too much deference to the government? By Damon Root.

Will Elena Kagan Allow Books to be Banned? Understanding the Supreme Court nominee’s chilling argument in Citizens United. By Daniel Shuchman.

“She is certainly a fan of presidential power.” By Radley Balko.

Jonathan Bernstein at The New Republic:

I didn’t post (or tweet) much during the floor debate, because, well, it was pretty dull. Look, this isn’t a partisan blog, so unlike United States Senators I can be honest about these things. This is politics. The Supreme Court is part of the political system; their decisions, while certainly driven by law and precedent, are nonetheless political actions. Elena Kagan was chosen because the president believes she’ll be a reliable vote on the Supreme Court, and because he hopes that she’ll be so for a long time — exactly the same reason that every nominee has been chosen for at least the last couple decades. Republicans opposed her because they think she’ll be a reliable vote for a long time. However, there’s a lot of pretense about the Court not being political, and most everyone believes in retaining that pretense. All of which leads to a lot of convoluted statements on both sides. The Republicans spent an hour (at least) on guns this morning, arguing that Kagan didn’t believe in Second Amendment rights…but she claimed she did, so she couldn’t be trusted. At one point, one of the Senators (sorry, I forgot to make a note of it. Sessions?) proclaimed his incredulity at Kagan’s claims to have not studied the historical record surrounding the Second Amendment. And so he had to vote against her, not because she’s not a reliable vote on guns, but because her lack of honesty on that issue disqualified her. It was, of course, the mirror image of Democrats who said the same things when Republican nominees claimed in the past to never have given any thought to abortion. Of course, the truth is that Republicans support gun rights, Kagan probably doesn’t agree with them, and that — and not questions of trust or lofty judicial philosophy or, certainly, the “empathy standard” that the GOP goes on about — is why they oppose her. It’s fine, but it doesn’t make for very interesting floor debate.

One Is The Loneliest Number

Josh Gerstein at Politico:

Elena Kagan’s Supreme Court nomination cleared the Senate Judiciary Committee on a 13-6 vote Tuesday, with only Sen. Lindsey Graham (R-S.C.) crossing party lines to vote in favor of the nominee.

Before the vote, however, Republicans and a few Democrats criticized Kagan for a lack of candor during her confirmation hearings earlier this month — despite a 1995 article she wrote calling the process vacuous. But Graham said his support for Kagan is a byproduct of his view that “the last election had consequences” and that senators ought to defer to President Barack Obama’s prerogative to pick judges in most circumstances.

“There’s plenty of reasons for conservatives to vote no, plenty of good reasons, but I also think there’s a good reason for conservatives to vote yes, and that’s provided in the Constitution,” Graham said of Kagan’s nomination. “I understood we lost; President Obama won. And I’ve got a lot of opportunity to disagree with him. But the Constitution, in my view, puts a responsibility on me, a senator, not to replace my judgment for his.”

Obama, in a written statement, applauded the committee’s “bipartisan affirmation” of Kagan, his solicitor general. He called her “one of this country’s leading legal minds” who would be “a fair and impartial Supreme Court justice” who understands that the law affects everyone.

Chris Cillizza at WaPo:

South Carolina Sen. Lindsey Graham‘s (R) announcement that he will vote in favor of Elena Kagan‘s nomination to the Supreme Court is likely to further incite conservatives already unhappy with him and, according to close observers of the state’s politics, ensures he will face a serious primary challenge in 2014.

“I think there’s a good reason for a conservative to vote yes,” Graham said this morning.

Graham’s apostasy on Kagan comes after other high profile breaks with conservatives in his state (and nationally) over climate change and immigration reform and will likely make him a central target of those tea party Republicans who helped oust Utah Sen. Bob Bennett in his bid for renomination earlier this year.

“It’s no longer a question of ‘if’ but ‘who’ and ‘how many’,” said one South Carolina Republican operative about a Graham primary challenge. The source added that Graham’s approach on high profile issues of late is “putting Lindsey’s friends and supporters in a really tough place.”

Steve Benen:

There wasn’t any doubt that the Senate Judiciary Committee would approve Solicitor General Elena Kagan’s nomination to the Supreme Court today. There was interest, however, in how the vote would go.

The committee endorsed Kagan on a 13-to-6 vote, with every Democrat supporting the nominee. The surprise came when Sen. Lindsey Graham (R-S.C.), joined with the majority.

The South Carolina conservative delivered a fairly lengthy speech on the nomination, and conceded he could think of “100 reasons” to oppose Kagan. But he would back her anyway, because of her qualifications and character. “At the end of the day, after the hearing, it was not a hard decision for me to make,” Graham explained.

As for what’s next for Kagan, her nomination now heads to the Senate floor, where final confirmation is expected before members break for their summer recess.

Paul Mirengoff at Powerline:

Obama got to the heart of the matter when he added that Kagan’s work as a Justice would reflect that she “understands how decisions made by the Court affect the lives of everyday Americans.” This is Obama’s way of saying that Kagan’s decisions will be just as expansively leftist as Obama’s vision of what’s good for “everyday Americans.”

I’m pretty sure Obama is right. And, given Kagan’s sense of humor, that seems to be just fine with Lindsey Graham, who once again earned his title, “the Arlen Specter of the South.”

Graham is up for re-election in 2014. By then Elena Kagan (and for that matter Sonia Sotomayor) will have a substantial record through which South Carolina Republicans can assess the judgment of their senior Senator, assuming he runs for re-election. In the meantime, let’s hope that Kagan includes some good one-liners in her left-wing opinions.

But perhaps Graham is right in predicting that this whole Tea Party thing will blow over. Perhaps in 2014 South Carolina will return Graham to Washington because he too is funny and the Washington Post likes him.

Allah Pundit:

WaPo’s already gaming out how many primary challengers Graham will face in 2014; among the possibilities is … Mark Sanford. A quote from one of Graham’s consultants: “He’s a thinking person’s conservative. I expect him to do well among voters with IQ’s in triple digits.” Thinking strategically, his vote here is potentially useful to Republicans down the line if/when another vacancy opens on the Court and The One decides to go for broke by appointing a lefty bomb-thrower. Because Graham’s now positioned himself as the principled moderate, willing to vote for both Kagan and Sotomayor in the name of deference to the president, a no vote on some future nominee would be a devastating judgment that he/she really is way out of the mainstream. Kagan’s not going to be filibustered — but the next one might be, especially if Grahamnesty signals to other moderates that it’s okay to do so by opposing him/her, so maybe he’s just keeping his powder dry. And, er, maybe Dick Durbin’s really had a change of heart. Exit question via Pat Leahy: Why does the GOP hate women?

Michael O’Brien at The Hill:

Senate Majority Leader Harry Reid (D-Nev.) said Tuesday that he planned a vote on Elena Kagan’s appointment to the Supreme Court before the August recess.

Reid said he planned to bring Kagan’s nomination up for a vote “before we leave for August recess.”

Joe Gandelman at Moderate Voice:

It was originally said by pundits that Kagan would sail through in what they predicted would be yawningly boring hearings with little opposition even from GOPers. Although hearings were relatively low-key, they weren’t boring.

And political skirmishes in the 21st century aren’t political skirmishes without the entry of over the top talk show political culture rhetoric.

In Kagan’s case, it recently came in the assertion of commentor Eric Ericson’s assertion that “Senators would be committing a high act of confirmation treason if they allow this nominee to go on the court without attempting to filibuster her nomination.”

As melodramatic and demonizing as some Supreme Court nominations have been in recent decades, no credible partisan has suggested that not filbustering a nominee named by another party would be an act of treason, no matter how it is argued or described. So now votes come down to treason (not just being RINOs or DINOs) for those who might dare not listen to talk show hosts and commentors?

But, then again, this is 2010 where the gut and the desire for readership or audience often trump the apparently atrophying logical part of the brain.

Good, ‘Cause The Kagan Hearings Nearly Put The Country Into A Coma

Thomas DeFrank at New York Daily News:

President Obama may get liberal Elena Kagan on the Supreme Court, but conservative swing-voter Anthony Kennedy says he’s not going anywhere anytime soon.

Justice Kennedy, who turns 74 this month, has told relatives and friends he plans to stay on the high court for at least three more years – through the end of Obama’s first term, sources said.

That means Kennedy will be around to provide a fifth vote for the court’s conservative bloc through the 2012 presidential election. If Obama loses, Kennedy could retire and expect a Republican President to choose a conservative justice.

Kennedy, appointed by President Ronald Reagan, has been on the court 22 years. He has become a bit of a political nemesis at the White House for his increasing tendency to side with the court’s four rock-ribbed conservative justices.

Ed Morrissey:

In fact, as the New York Daily News implies, Kennedy may have made that decision after this year’s State of the Union address:

Without naming Kennedy, Obama was unusually critical of his majority opinion in the Citizens United case, handed down last January. That 5-4 decision struck down limits on contributions to political campaigns as an abridgement of free speech.

Obama called the ruling “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power … in Washington to drown out the voices of everyday Americans.”

He was so angry that he took the unusual step of blasting the decision in his Jan. 27 State of the Union address, with Kennedy and five other justices looking on.

Obama certainly reveled in his prime-time, televised, cheap-shot attack at jurists who couldn’t fire back.  Samuel Alito took fire from the media for having just mouthed a rebuttal.  The only revenge any of them can take is to make sure that they stay in place until Obama leaves office.  The “at least” part of the report almost certainly means that retirement at 80 may be just as possible as retirement at 76.  After all, John Paul Stevens didn’t decide to retire until he was almost 90 years old.

Perhaps the timing is just a coincidence and Kennedy didn’t have plans to retire any earlier even prior to the 2008 election.  However, this looks more like a quiet revenge, and a reminder to Obama that Kennedy will likely remain relevant longer than the President.

John McCormack at The Weekly Standard:

Kennedy has sided with the liberal activists on cases that held the Constitution grants habeas rights to enemy combatants, prohibits the death penalty for those under 18, and guarantees a right to abortion-on-demand. Kennedy has sided with the textualist/originalist bloc on 2nd Amendment and campaign finance/free speech cases. The 2012 election could determine whether these rulings and many others are upheld or overturned.

Jonah Goldberg at The Corner:

So far Obama has replaced one old liberal with a younger (wise Latina) liberal and is about to do it again (minus the wise Latina part). But if Justice Kennedy were to retire before 2012 he would throw the current Supreme Court balance completely over to the liberal bloc for years to come. I don’t fetishize the notions of “balance” or “centrism” on the court, but I value them greatly if the alternative is giving over the last branch of government to liberalism for years to come. So thanks very muchJustice Kennedy.

Doug Mataconis:

Kennedy isn’t the only justice who might be expected to retire sometime in the next six years. By 2012, four Justices — Kennedy, Scalia, Ginsburg, and Breyer — will be over 75 and while we might see one more retirement in Obama’s first term the changes that are likely to occur in the Senate after November make it unlikely that Obama will be able to appoint candidates even as liberal as Sotomayor or Kagan.

Nikki Schwab at The Washington Examiner

Wonkette:

Supreme Court Justice Anthony Kennedy has told “relatives and friends” that he is staying on the court until at least the end of President Obama’s term. Kennedy, of course, is the “swinger” vote on the Supreme Court—the guy who is conservative but less so than the other four on the court, so he sometimes joins the liberals, so he is more powerful than Obama and Justin Bieber put together. And thus for at least a couple-point-five more years, the entire nation will have to kiss up to Anthony Kennedy if they have a parking ticket they want waived or want their state not to kill them with death chemicals.

Of course, Anthony Kennedy could stay on for yet another four years if MaoBama gets another term. That is, if he doesn’t die; he is turning 74 this month. But he could probably just sell his soul like Dick Cheney to stay alive until another Republican takes office and ensure the Supreme Court will be reactionary for another half century or so.

That Memo Smokes Three Packs A Day

Shannen Coffin at National Review Online:

The documents involved date from the Clinton White House. They show Miss Kagan’s willingness to manipulate medical science to fit the Democratic party’s political agenda on the hot-button issue of abortion. As such, they reflect poorly on both the author and the president who nominated her to the Supreme Court.

There is no better example of this distortion of science than the language the United States Supreme Court cited in striking down Nebraska’s ban on partial-birth abortion in 2000. This language purported to come from a “select panel” of the American College of Obstetricians and Gynecologists (ACOG), a supposedly nonpartisan physicians’ group. ACOG declared that the partial-birth-abortion procedure “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.” The Court relied on the ACOG statement as a key example ofmedical opinion supporting the abortion method.

Years later, when President Bush signed a federal partial-birth-abortion ban (something President Clinton had vetoed), the ACOG official policy statement was front and center in the attack on the legislation. 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.

Like the Supreme Court majority in the prior dispute over the Nebraska ban, Judge Kopf asserted that the ACOG policy statement was entitled to judicial deference because it was the result of an inscrutable collaborative process among expertmedical professionals. “Before and during the task force meeting,” he concluded, “neither ACOG nor the task force members conversed with other individuals or organizations, including congressmen and doctors who provided congressional testimony, concerning the topics addressed” in the ACOG statement.

In other words, what medical science has pronounced, let no court dare question. The problem is that the critical language of the ACOG statement was not drafted by scientists and doctors. Rather, it was inserted into ACOG’s policy statement at the suggestion of then–Clinton White House policy adviser Elena Kagan.

John Hinderaker at Powerline:

A Smoking Gun in the Kagan Case?

[…]

Here is the shocking part: the ACOG report, as originally drafted, said almost exactly the opposite. The initial draft said that the ACOG panel “could identify no circumstances under which this procedure . . . would be the only option to save the life or preserve the health of the woman.” That language horrified the rabidly pro-abortion Elena Kagan, then a deputy assistant to President Clinton for domestic policy. This is what Kagan wrote in a memo to her superiors in the Clinton White House:

Todd Stern just discovered that the American College of Obstetricians and Gynecologists (ACOG) is thinking about issuing a statement (attached) that includes the following sentence: “[A] select panel convened by ACOG could identify no circumstances under which [the partial-birth] procedure … would be the only option to save the life or preserve the health of the woman.” This, of course, would be disaster — not the less so (in fact, the more so) because ACOG continues to oppose the legislation. It is unclear whether ACOG will issue the statement; even if it does not, there is obviously a chance that the draft will become public.

So Kagan took matters into her own hands: incredibly, she herself appears to have written the key language that eventually appeared in the ACOG report. Coffin writes:

So Kagan set about solving the problem. Her notes, produced by the White House to the Senate Judiciary Committee, show that she herself drafted the critical language hedging ACOG’s position. On a document [PDF] captioned “Suggested Options” — which she apparently faxed to the legislative director at ACOG — Kagan proposed that ACOG include the following language: “An intact D&X [the medical term for the procedure], however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.”

Kagan’s language was copied verbatim by the ACOG executive board into its final statement, where it then became one of the greatest evidentiary hurdles faced by Justice Department lawyers (of whom I was one) in defending the federal ban. (Kagan’s role was never disclosed to the courts.)

This is an image of Kagan’s “suggested options” note; click to enlarge:

The note does appear to be in Kagan’s handwriting; you can see a sample of her writing here.

Unless there is some other interpretation of these documents that does not occur to me, it appears that Elena Kagan participated in a gigantic scientific deception.

Yuval Levin at The Corner:

What’s described in these memos is easily the most serious and flagrant violation of the boundary between scientific expertise and politics I have ever encountered. AWhite House official formulating a substantive policy position for a supposedly impartial physicians’ group, and a position at odds with what that group’s own policy committee had actually concluded?  You have to wonder where all the defenders of science—those intrepid guardians of the freedom of inquiry who throughout the Bush years wailed about the supposed politicization of scientific research and expertise—are now. If the BushWhite House (in which I served as a domestic policy staffer) had ever done anything even close to this it would have been declared a monumental scandal, and rightly so.

Apparently scientific integrity only matters as long as it doesn’t somehow infringe on abortion. That, of course, was always the lesson of the stem-cell debate in the Bush years anyhow. But clearly it started earlier. It’s good to know where Kagan’s priorities are. Let’s hope senators are paying attention.

Jennifer Rubin at Commentary:

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.

Joseph Lawler at The American Spectator:

Given the memos Coffin provides in his article, it’s hard to see how Kagan could explain away her significant rewriting of the statement, which directly affected policy relating to partial-birth abortion. But maybe she can. A senator should give her the opportunity during the hearings.

Byron York at The Washington Examiner:

Before the Senate Judiciary Committee a short time ago, Supreme Court nominee Elena Kagan appeared reluctant to admit that she wrote a 1996 Clinton White House memo aimed at altering a key medical group’s opinion of whether partial birth abortion is medically necessary.  The memo, reported yesterday by National Review, has caused a stir in conservative circles because it appeared that Kagan, then a White House policy aide, put words in the medical group’s mouth in order to soften its position on the controversial procedure. But when Republican Sen. Orrin Hatch brought the subject up with Kagan, he had a hard time getting her to admit that she did, in fact, write the document in question.

“Did you write that memo?” Hatch asked.

“Senator, with respect,” Kagan began, “I don’t think that that’s what happened — ”

“Did you write that memo?”

“I’m sorry — the memo which is?”

“The memo that caused them to go back to the language of ‘medically necessary,’ which was the big issue to begin with — ”

“Yes, well, I’ve seen the document — ”

“But did you write it?”

“The document is certainly in my handwriting.”

Although Kagan later explained her thinking in the memo — she said she was only trying to help the medical group express its true opinion — and it was clear that she did write the memo, she looked slippery in her attempt to avoid openly admitting that she did so.  That won’t sit well with skeptical senators.

UPDATE: William Saletan at Slate

UPDATE #2: Ross Douthat

Ann Althouse

Day 2: So Far, So Thurgood

Dana Milbank at WaPo:

Oppo researchers digging into Elena Kagan‘s past didn’t get the goods on the Supreme Court nominee — but they did get the Thurgood.

As confirmation hearings opened Monday afternoon, Republicans on the Senate Judiciary Committee took the unusual approach of attacking Kagan because she admired the late justice Thurgood Marshall, for whom she clerked more than two decades ago.

“Justice Marshall’s judicial philosophy,” said Sen. Jon Kyl (Ariz.), the No. 2 Republican in the Senate, “is not what I would consider to be mainstream.” Kyl — the lone member of the panel in shirtsleeves for the big event — was ready for a scrap. Marshall “might be the epitome of a results-oriented judge,” he said.

It was, to say the least, a curious strategy to go after Marshall, the iconic civil rights lawyer who successfully argued Brown vs. Board of Education. Did Republicans think it would help their cause to criticize the first African American on the Supreme Court, a revered figure who has been celebrated with an airport, a postage stamp and a Broadway show? The guy is a saint — literally. Marshall this spring was added to the Episcopal Church’s list of “Holy Women and Holy Men,” which the Episcopal Diocese of New York says “is akin to being granted sainthood.”

With Kagan’s confirmation hearings expected to last most of the week, Republicans may still have time to make cases against Nelson Mandela, Mother Teresa and Gandhi.

Charles Johnson at Little Green Footballs:

The GOP in Texas pushed hard to get Thurgood Marshall removed from social studies textbooks, and today I watched in absolute disgust as the GOP in Washington actually smeared Thurgood Marshall during Kagan’s nomination hearing.

Steve Benen:

I often find Republican ideology to be rather twisted, but it simply never occurred to me that GOP senators would spend the first day of the confirmation hearings condemning one of the most venerated Supreme Court justices in American history.

But condemn they did. Sen. John Cornyn (R-Tex.) declared Marshall “a judicial activist.” So did Sen. Jeff Sessions (R-Ala.). Sen. Chuck Grassley (R-Iowa) said Marshall’s approach to the law “does not comport with the proper role of a judge or judicial method.”

Better yet, this was a coordinated attack — Republican aides circulated materials to reporters during the hearing detailing all of the things the GOP doesn’t like about Thurgood Marshall.

Christina Bellantoni put together an interesting count — while President Obama’s name came up 14 times yesterday, Thurgood Marshall’s name came up 35 times.

It’s quite a strategy Republicans have put together here, isn’t it? Unable to come up with a coherent line of attack to undermine this nominee, the GOP has decided to turn its guns on an iconic civil rights attorney and one of the more celebrated American heroes of the 20th century.

And the Republican Party’s outreach to minority communities suffers yet another setback.

Jules Crittenden:

Various mystified parties are denouncing GOP attacks on Thurgood Marshall’s expansive judicial activism … on the bizarre grounds that his status as the nation’s first black Supreme Court justice has literally made him a saint and makes his positions unassailable* … and are wondering what any of that has to do with his former law clerk in the current Judiciary Committee confirmation hearings. Though when you consider her own position — a sort of looking-glass support for discrimination vs. discrimination at Harvard — it gets to the heart of the matter. Does she in fact think some forms of discrimination are constitutional, and some political positions are not only above the law, but above the interests of national security in wartime, and as Harvard apparently thinks given its willingness to accept federal money and ROTC tuitions despite its active opposition to the military over the federal government’s congressionally passed, Clinton-signed DADT policy, that principles are principles and money is money, and one shouldn’t get in the way of the other?

* Milbank has a point, though. Hagiophobia will get the GOP nowhere in this case.

John McCormack at The Weekly Standard:

During questioning by Judiciary chairman Patrick Leahy this morning, Elena Kagan defended the policy she upheld at Harvard of keeping military recruiters out of the office of career services.

“I’m confident that the military had access to our students and our students had access to the military throughout my entire deanship,” Kagan said. She defended the anti-military policy:

“This was a balance for the law school because on the one hand we wanted to make abo sure that our students did have access to the military at all times, but we did have a very longstanding, going back to the 1970s, anti-discrimination policy, which said that no employer could use the office of career services if that employer would not sign a non-discrimination pledge, that applied to many categories–race, and gender and sexual orientation, and actually veteran status as well. And the military could not sign that pledge … because of the Don’t Ask/Don’t Tell policy.”

As many people have pointed out, the military’s policy on gays in the military is based on a law passed by Congress and signed into law by President Bill Clinton, for whom Kagan worked. Why were other federal government officials not similarly discriminated against by Harvard?

Jonathan Adler:

I’ve contributed some initial reactions to the Washington Post’s online “Topic A” feature on the Kagan nomination hearings.  The general thrust of my remarks is that the Kagan hearings, thus far, are much like what we’ve come to expect in that she’s dutifully avoided revealing much about her personal legal views, despite her 1995 essay urging greater candor by nominees and more searching interrogation by Senators.  I also note that Kagan, much like Sotomayor, has refused to defend a “progressive” constitutional vision, whether that articulated by the President or her onetime-mentor Justice Thurgood Marshall.

One of the other contributors to the feature, Walter Dellinger, has a contrary view. I suspect part of our difference comes from the fact that Kagan has not offered the stilted, almost scripted, responses to questions about judicial philosophy that made her sound like a John Roberts wannabe (and demoralized some liberal legal thinkers).  Kagan has spoken more broadly about the judicial role, but without saying much that could be used to pin her down on her views of constitutional interpretation, let alone specific issues or cases.  She’s also proclaimed that “we are all originalists” and that empathy should not play much of a role in judicial decision-making because “it’s law all the way down.”

The most interesting parts of the hearings to me thus far — and it’s still early — have been the exchanges discussing Citizens United and other cases she’s handled as Solicitor General.  Here Kagan sought to discuss her decisions in these cases without revealing too much about how she might view similar cases that might come before the Court.  I’ve found these exchanges more interesting than those on, say, her handling of the military at Harvard or her various White House memos.

On The First Day Of Kagan Hearings, My True Love Gave To Me…

Marc Ambinder at The Atlantic:

KAGAN: Supreme Court confirmation hearings begin for Elena Kagan. They are expected to be the opposite of nasty and brutish, and with the former senior senator from Delaware now occupying his time elsewhere, they will be short. (That is, of course, a kind-hearted jab.) Kagan’s active participation in Clinton-era policy debates and the controversy over Harvard’s military recruitment policy will no doubt be flashpoints, but they’ll be of little consequence. Kagan’s confirmation is virtually assured.

Charlie Savage at NYT:

Solicitor General Elena Kagan pledged on Monday that if the Senate confirms her nomination to the Supreme Court, she will adopt a “modest” stance toward her power and will be “properly deferential” to the policy decisions of Congress and the president, according to excerpts from her prepared opening statement released by the White House.

On the first day of her confirmation hearings before the Senate Judiciary Committee, Ms. Kagan referred to the years she spent in the other branches of government — including four years in the White House during the Clinton administration — to reassure lawmakers she would not trample on the role of elected political leaders.

The democratic process “is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests,” she said. “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.”

Jay Newton-Small at Swampland at Time:

Day 1 is done in Solicitor General Elena Kagan’s hearings to become the 112^th Supreme Court justice. Thus far there has been relatively little about Kagan herself. In between memorials for Senator Bobby Byrd and Sandra Day O’Connor’s husband, Republicans griped that no matter what Kagan says, they don’t think they’ll be able to trust her responses given their experience with Sonia Sotomayor last year. Sotomayor’s answers, Senator Jeff Sessions, the ranking Republican on the Judiciary Committee, were bland and reassuring. “And now she’s demonstrated herself to be one of the most liberal activist justices on the court,” Sessions told reporters during a break in Monday’s proceedings. Kagan, he asserted, would do the same no matter what questions they pose of her.

John McCormack at The Weekly Standard:

“As Kagan confirmation hearings begin, Republicans struggle for line of attack.”  That’s the headline of today’s Washington Post front-page report by Anne Kornblut and Paul Kane on the Elena Kagan hearings. Isn’t it strange how a story by objective Washington Post reporters mirrors the opinion of the Democratic president?

The analysis that the news cycle has crowded out stories on Kagan is fair enough, but the reporters go out of their way to dismiss Republican criticism of Kagan. If you doubt that this story, which neatly frames hapless Republicans versus a near-perfect nominee, is biased, consider this: Kagan’s discrimination against military recruiters at Harvard is never once explicitly mentioned. Kornblut and Kane merely allude to the discrimination: “Republicans have tried to make an issue of her years as law dean at Harvard.” You see, whatever it is that Kagan did at Harvard is not really an issue–Republicans are simply trying to “make an issue” out of nothing.

Never mind that liberal writer Peter Beinart called Kagan’s discrimination against the military her “Achilles heel” and wrote: “Barring the military from campus is a bit like barring the president or even the flag. It’s more than a statement of criticism; it’s a statement of national estrangement.” And never mind that Jeff Sessions, ranking Republican on the judiciary committee, laid out the case against Kagan last week, arguing that it was hypocritical of Kagan to discriminate against the military while keeping quiet about the Saudi gifts Harvard was receiving.

Michelle Malkin:

Places, places everyone.

Today, the curtain officially opens on the Senate “battle” over Obama Supreme Court nominee Elena Kagan. “Battle” gets ghost quotes because all the poohbahs on Capitol Hill are already treating her confirmation as a “foregone conclusion.”

Beltway Republicans will put up just enough of a fight to placate grass-roots conservative activists on Kagan’s radical social views, while the nutroots will pout (but not too loudly) that Kagan isn’t enough of a liberal activist for them. And GOP Sen. Lindsay Graham, after several minutes of obligatory grandstanding mixed with obsequious suck-uppage, will cast his vote with Kagan and Obama — as he did with Sonia Sotomayor (whom he praised as “bold” and edgy”).

Erick Erickson at Redstate:

Internal Senate emails confirmed by NRA Board Members are highlighting just how far the National Rifle Association has fallen.

The organization recently collaborated with the left to obtain a carve out of the DISCLOSE Act, legislation designed to silence bloggers and outside interest groups like tea party activists. This was a first amendment issue and the NRA gladly took a position and campaigned for its members to take a position on the DISCLOSE Act.

One of the NRA’s chief arguments was that it needed the carve out to be effective in its advocacy of Second Amendment issues. But here’s the problem: these internal Senate emails confirmed by NRA Board Members show that the National Rifle Association’s management team has explicitly and directly told the NRA’s board they are prohibited from testifying about second amendment issues during the Elena Kagan confirmation hearings.

That’s right: the foremost gun rights lobby in the nation is prohibiting its board from testifying in the Elena Kagan confirmation hearings about the second amendment.

The NRA did issue a statement on Friday after the internal Senate email began leaking out informing people of the gag order. The statement noted Kagan’s problematic record on guns, but that’s just smoke and mirrors. Don’t believe them when they say they are working with Senators to investigate her record. If they were really working with Senators, they would have accepted an invitation to testify on the Kagan nomination when they were invited. The gag order on board members is not limited to providing testimony, but it prohibits board members from coming out against Kagan in their individual capacity.