Will Elena Kagan Defend the Rule of Law?

When it comes to online smut, privacy matters; when it comes to political speech, it doesn’t, says U.S. Supreme Court

    ChristianNewsWire: “Robert Peters, president of Morality in Media, had the following comments: … ‘In June 2004, the Supreme Court affirmed a lower federal court decision which had upheld a preliminary injunction blocking enforcement of the Child Online Protection Act, a law that would have required websites that commercially distribute pornography to take reasonable steps to keep kids away from the smut. In so doing, the Supreme Court agreed with the trial court’s finding that “blocking or filtering technology may be at least as successful as COPA would be in restricting minors’ access to harmful material online without imposing the burden on constitutionally protected speech that COPA imposes on adult users…” Specifically, the trial court found (in the words of the appellate court) that requiring adults to ‘identify themselves as a precondition to accessing disfavored speech’ would ‘likely…deter many adults from accessing that speech.”‘”


  • Posted: 06/28/2010
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  • Category: Miscellaneous
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  • Source: www.christiannewswire.com

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Law Review: Elena Kagan and the Miracle at Harvard

    Kevin K. Washburn, Elena Kagan and the Miracle at Harvard (June 28, 2010). Available at SSRN: http://ssrn.com/abstract=1631496

    “During Elena Kagan’s tenure as dean, a miracle occurred. Harvard Law School was transformed. Today, students embrace the institution. The professors engage with one another. And the school’s widely discussed dysfunctions are distant memories. Kagan accomplished this miracle by modeling two important and traditional American values: hard work and community. Kagan was known for walking the halls tirelessly to learn the views of her bright and independent colleagues and to seek consensus. She broke the gridlock between faculty political factions that had atrophied the academic life of the institution. Even more importantly. she transformed the student experience. This essay seeks to describe Kagan’s transformational leadership and provide insight as to the specific changes Kagan made to accomplish the miracle.”


  • Posted: 06/28/2010
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  • Category: Bench & Bar
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  • Source: ssrn.com

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Law Review: An Empirical Analysis of the Senate Judiciary Committee Hearings of Supreme Court Nominees, 1939-2009

    Lori A. Ringhand and Paul M. Collins, May it Please the Senate: An Empirical Analysis of the Senate Judiciary Committee Hearings of Supreme Court Nominees, 1939-2009 (June 25, 2010). UGA Legal Studies Research Paper No. 10-12. Available at SSRN: http://ssrn.com/abstract=1630403

    “This paper examines the questions asked and answers given by every Supreme Court nominee who has appeared to testify before the Senate Judiciary Committee since 1939. In doing so, it uses a new dataset developed by the authors. This database, which provides a much-needed empirical foundation for scholarship in emerging areas of constitutional law and political science, captures all of the statements made at the hearings and codes these comments by issue area, subissue area, party of the appointing president, and party of the questioning senator. The dataset allows us to quantify for the fist time such things as which issues are most frequently discussed at the hearings, whether those issues have changed over time, and whether they vary depending on the party of the appointing president and the party of the questioning senator. We also investigate if questioning patterns differ depending on the race or gender of the nominee. Some of our results are unsurprising: for example, the hearings have become longer. Others, however, challenge conventional wisdom: the Bork hearing is less of an outlier in several ways than is frequently assumed, and abortion has not dominated the hearings. We also discover that there is issue area variation over time, and that there are notable disparities in the issues addressed by Democratic versus Republican senators. Finally, we find that female and minority nominees face a significantly different hearing environment than do white male nominees.”


  • Posted: 06/28/2010
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  • Category: Bench & Bar
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  • Source: ssrn.com

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Social conservatives make their case against Kagan

Heather Gebelin Hacker: Christian Legal Society v. Martinez update

Military men to testify at Kagan hearing

How Elena Kagan worked to limit military recruiting at Harvard

    Christian Science Monitor: “When an appeals court issues an opinion, that doesn’t mean the opinion takes immediate effect. The government appealed the Third Circuit’s decision to the US Supreme Court. To facilitate the appeal, the Third Circuit stayed its ruling, and postponed its suggestion than an injunction be issued against enforcement of the Solomon Amendment. Nonetheless, the day after the Third Circuit opinion, Kagan announced that the law school would return to its prior policy sharply limiting the access of military recruiters . . .  In her statement, Kagan said that the Third Circuit ruling had ‘enjoined the enforcement of the Solomon Amendment.’ That statement is true but misleading given that the case would almost certainly be appealed. If appealed, the force of the decision would likely be stayed pending the outcome of the appeal.”


  • Posted: 06/25/2010
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  • Category: Bench & Bar
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  • Source: www.csmonitor.com

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How does Elena Kagan see America’s place in the world? Why the Senate needs to ask some hard questions

    Jeremy Rabkin writing at the Heritage Foundation: “What are Elena Kagan’s views on foreign policy? What does she think about America’s role in the world? At one time, such questions would have seemed irrelevant, if not impudent, for a Supreme Court nominee. Not anymore. Recent Supreme Court decisions, and commonly expressed views among commentators, seem to embrace a new role for international institutions, foreign practices, and foreign opinion in shaping American law. Although very little is known about Kagan’s judicial philosophy, or her opinions on great constitutional issues, her record, such as it is, cries out for questioning on these matters. It remains unlikely that Kagan will jeopardize her confirmation by giving forthright answers to such questions. But Senators should not pass up the opportunity to put her on the spot by pressing for clear and direct responses to fundamental questions about her judicial philosophy. Here are particularly compelling reasons to raise these questions with Elena Kagan.”


  • Posted: 06/25/2010
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  • Category: Bench & Bar
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  • Source: heritage.org

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Is judicial activism in the eye of the beholder?

George F. Will: A few “vapid” questions for Kagan

    George F. Will writing in The Washington Post: “Given Elena Kagan’s aversion to ‘vapid and hollow’ confirmation hearings devoid of ‘legal analysis,’ beginning Monday she might relish answering these questions: … In Federalist 45, James Madison said: ‘The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.’ What did the Father of the Constitution not understand about the Constitution? Are you a Madisonian? Does the doctrine of enumerated powers impose any limits on the federal government? Can you cite some things that, because of that doctrine, the federal government has no constitutional power to do”


  • Posted: 06/25/2010
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  • Category: Bench & Bar
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  • Source: www.washingtonpost.com

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New focus on Elena Kagan’s religious liberty and church-state views

Washington Times: The case against Kagan

Praise for an Israeli judge drives criticism of Kagan

Elena Kagan and the Religion Clauses

Jewish Clergy Group: Elena Kagan Isn’t ‘Kosher’ to Serve on Supreme Court

850 Orthodox Rabbis: Kagan not kosher for any court, threatens Jewish security

Top Democrats won’t say if Kagan should justify abortion views

GOP, conservatives reveal arguments against Kagan

ABA gives Kagan highest rating for judicial nominees

Bork’s revenge: Today’s partisan Supreme Court is an unintended consequence of Roe v. Wade

CWA: Kagan is a liberal political soldier, not an impartial jurist

Polls show Kagan’s support doesn’t run deep

Top Republican: Filibuster of pro-abortion Elena Kagan still possible

Supreme Court issues 7 opinions, CLS v. Martinez expected on Monday

Americans United urges Senate panel to question Kagan on church-state views

Rasmussen poll of US voters: 42% oppose Kagan’s confirmation, 35% favor

Kagan Supreme Court confirmation hearings begin Monday

Kagan submits updated financial disclosure

Predicting an end to Roe v. Wade

Bork takes on Kagan’s “immature theory of judging”

SCOTUSblog: This Term’s pending cases

Fellow law clerks endorse Kagan for court

Former SGs Endorse Kagan for Supreme Court

Republicans May Boycott Kagan Supreme Court Hearings Over Lack of Documents

Kagan sought secrecy in 4 of 5 open gov’t cases

Is Supreme Court Nominee Elena Kagan an Ex-Gay?

Law Review: Justice Sotomayor and Establishment Clause Jurisprudence

    Justice Sotomayor and Establishment Clause Jurisprudence: Which Antiestablishment Standard Will Justice Sotomayor Endorse?
    David M. Estes, 11 Rutgers J. L. & Religion 525 (2010)

    “Over a decade ago Justice Antonin Scalia caricatured the Lemon test as a ‘late night ghoul that refuses to die.’ The Lemon test is the legal standard used to determine whether a government action runs afoul of the Establishment Clause of the First Amendment to the United States Constitution. For years Justice Scalia and his allies on the highest court have worked to build a large enough coalition to overrule the Lemon test, and establish a new standard for determining the constitutionality of a government act under the Establishment Clause of the First Amendment.

    Justice Byron White famously observed that every time a new justice comes to the Supreme Court of the United States ‘it’s a different court.’ So the 2009 appointment of Justice Sonia Sotomayor to the Supreme Court raises the question of how will the Court’s Establishment Clause jurisprudence be affected. Will Justice Sonia Sotomayor, a left of center Catholic, provide the all-powerful fifth vote and finally put to death Justice Scalia’s ghoul?

    To explore this question, this article will (1) summarize and review Establishment Clause jurisprudence, (2) examine Justice Sotomayor’s Establishment Clause record, and (3) identify characteristics of Justice Sotomayor’s jurisprudence that might suggest how her appointment will affect the evolution of Establishment Clause jurisprudence.”


  • Posted: 06/22/2010
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  • Category: Bench & Bar
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  • Source: www.lawandreligion.com

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Holder v. Humanitarian Law Project

Supreme Court Bingo predicts the author of the CLS opinion

Bork to publicly oppose Kagan for Supreme Court

Top Senate Republican Leaves Door Open to Potential Elena Kagan Filibuster

Kagan and Shariah: Supreme court nominee displays selective moral outrage

Kagan notes label KKK and NRA as ‘bad guy’ organizations

ABA Asks High Court To Take Judges’ Pay Raise Suit

    Forbes: “The ABA filed a brief Monday arguing that Congress’ periodic withholding of the judicial cost-of-living increases has resulted in compensation that is ‘now so low that it seriously compromises the independence that life tenure was intended to ensure, and is insufficient to attract and retain well-qualified jurists from diverse economic and societal backgrounds.’”


  • Posted: 06/18/2010
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  • Category: Bench & Bar
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  • Source: blogs.forbes.com

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Judiciary chairman expects July vote for Kagan

Kagan’s e-mails to go public as hearings approach

Senate Republican Accuses Kagan of Staying Silent on Saudi Gift to Harvard

Who’s Writing the Opinion in CLS v Martinez?

Elena Kagan’s Oxford Thesis Has Supreme Court Nominee Praising Activist Judges

Supreme Court OKs search of policeman’s sexy text messages

The Constitution and Souter: Let’s hope Kagan feels otherwise

    David B. Rivkin Jr. and Lee A. Casey write at USA Today: “In fact, former Justice David Souter set the discussion in motion last month in a Harvard commencement address — arguing that seeking to resolve difficult constitutional questions based on an honest effort to construe that document’s words (whether broadly or narrowly) “has only a tenuous connection to reality” and leads to bad decisions. Souter’s candor is commendable but also genuinely troubling — the practical equivalent of a retired cardinal announcing that religion is an opiate for the masses . . . ”


  • Posted: 06/16/2010
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  • Category: Bench & Bar
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  • Source: www.usatoday.com

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The Liberal Mythology of the “Activist” Supreme Court

Jordan Lorence: Elena Kagan and Mrs. Smith

Fellow law school deans embrace Kagan for court

Georgetown Supreme Court Institute seeking Deputy Director

Kagan Worked on Jones Suit for Clinton

Vets ask Obama to restore memorial cross

High court sides with immigrant with minor record

Kagan role in Clinton sex harassment suit withheld

Kagan took broad view of religious freedom

President Obama Names James E. Graves, Jr. to U.S. Court of Appeals for the Fifth Circuit

GOP senators criticize Kagan’s work as court clerk

Kagan Files From Clinton Administration Show Her Backing Human Cloning

Kagan’s threat to gun owners

NY: Local man’s child porn case goes to U.S. Supreme Court

Sotomayor votes reliably with Supreme Court’s liberal wing

Pro-Lifers Worry Kagan Could Push Supreme Court on Assisted Suicide

Dellinger: Kagan is no Souter

Kagan Article Shows She May Use Motive Test to Strike Pro-Life Abortion Laws