Patterico's Pontifications


Kagan vs Miers (vs Estrada)

Filed under: Judiciary — DRJ @ 7:06 pm

[Guest post by DRJ]

Which Supreme Court nominee has the most diverse experience?

October 2005 — Harriet Miers:

“Ms. Miers was the first woman to become a partner at a major Texas law firm and the first woman to be president of the State Bar of Texas. In 1995, Mr. Bush, then governor of Texas, named her chairwoman of the Texas Lottery Commission and gave her the task of cleaning up that scandal-plagued agency.

Ms. Miers has also served Mr. Bush in the posts of assistant to the president, staff secretary and as deputy chief of staff. Previously, she had been president of a Texas law firm, Locke, Purnell, Rain & Harrell, and when it merged with another Texas firm to become Locke Liddell & Sapp, she became its co-managing partner.

She was the first woman elected as president of the Texas bar in 1992, and the first female to be president of the Dallas Bar Association in 1985. Ms. Miers, who received her bachelor’s and law degrees from Southern Methodist University, was also an at-large member of the Dallas City Council.”

May 2010 — Elena Kagan:

“BLITZER: … at all the various judges out there, and you decided this time you didn’t want a judge?

AXELROD: Well, first of all, Wolf, that’s not the breadth of her experience. In fact, she’s probably got more diverse experience than — than most of the appointees that we’ve seen. She’s worked in all branches of government. She clerked for a very distinguished appellate court judge. She clerked for Justice Thurgood Marshall, a — a legend on the Supreme Court.

She’s represented the United States of America before the Supreme Court for the last 15 months. And, you know, she’s referred to — the solicitor general is referred to as the tenth justice, because they spend so much time working with the court. So she’s well qualified. And I think you’ll have a hard time find observers of the court and legal scholars who would argue otherwise.”

Robert Gibbs has a hard time understanding any Kagan-Miers analogy. When it comes to experience, so do I.


UPDATE BY PATTERICO: You know who Kagan reminds me of a little, in terms of qualifications and experience? Miguel Estrada.

Ivy League undergradate work with honors, Harvard Law school with a position on the law review, clerk at the U.S. Court of Appeals, and clerk at the Supreme Court. Big law firm experience and work at the Solicitor General’s Office.

Sure, there are differences. Kagan is the Solicitor General; Estrada was the Assistant to the Solicitor General. Kagan was a big law firm associate; Estrada was a partner. But the background is quite similar.

I think Republicans should ask Kagan the same questions — and demand from her the same sort of documents — that were asked of and demanded from Estrada. Compare her responses and answers to his — and if they are at all similar, raise holy hell on that basis.

They probably can’t defeat her, but they could have some fun in the process.

UPDATE BY DRJ: The Washington Post is collecting links to Kagan’s writings and other statements.

Mullah Omar Captured???

Filed under: General — Patterico @ 6:05 pm

So says Brad Thor at Big Government. I read it three times to see if he was kidding. Doesn’t look like it.

Allah comes with the skepticism, which I assume will be treated by Glenn Greenwald in two days as naive repetition of the story.

Obama Administration Relaxes Transport Union Rules

Filed under: Obama — DRJ @ 1:31 pm

[Guest post by DRJ]

The Obama Administration has changed a 76-year-old union rule applicable to airlines and railroads:

“Labor unions will have an easier time organizing workers at U.S. airline and railroad companies after the Obama administration on Monday changed a 76-year-old rule on union elections.

The change is a major victory for unions that have struggled to reverse years of decline in membership. And it’s the most significant so far in a string of White House moves designed to boost organized labor.

The new rule, announced by the three-member National Mediation Board, would recognize a union if a simple majority of workers who cast ballots approve organizing. The previous rule required a majority of the entire work force to favor unionizing. That meant workers choosing not to vote at all were effectively treated as “no” votes.”

The article suggests the rule is designed to make it easier to unionize Delta, as well as regional and small carriers.

Thus, it’s bad when the Supreme Court changes a 63-year-old campaign finance rule in the Citizens United case, and the Justices deserve to be scolded by President Obama at his State of the Union address. Meanwhile, it’s good when the Obama Administration changes a 76-year-old union rule, making it easier for one of the Democrats’ biggest contributors to increase their membership.

Got it.


The Will to Live

Filed under: General — DRJ @ 11:46 am

[Guest post by DRJ]

Al Hayes knows his wife Katy has a will to live:

“[Al’s] daily online musings began not long after he witnessed the home birth of their third child Feb. 10. But the joy of that moment was quickly overshadowed when he found himself giving doctors permission to amputate his wife’s legs and arms. To stop a raging infection spreading from her uterus, doctors said her limbs had to be sacrificed or she would die.

He wrote later that signing the permission papers while Katy was in a coma was the hardest thing he ever did.

“I hope everyone will understand why I did this. I hope Katy will forgive me,” he wrote.

To the dozen who wrote him that he should have just “let Katy go” or that “Katy wouldn’t want to live like this,” he responded: “You really don’t know my wife.”

Read the whole thing.


This Weekend’s Posts on Intentionalism and Legal Interpretation

Filed under: General — Patterico @ 7:30 am

With the nomination of a potential Supreme Court justice, the issue of legal interpretation is thrust back into the spotlight again. I wrote a couple of posts about this over the weekend; if you missed them, please check them out now.

  • Why Intentionalism Cannot Determine Legal Interpretation — And Why It Matters sets forth the basic argument, hopefully without getting lost in abstractions. “Simply put, let’s say you accept everything the intentionalists say about the meaning of language, in theory. It still doesn’t tell you anything about how to make real-life decisions about how a judge should rule when litigants disagree in their interpretations of legal language.”
  • The Quick Chat on Intentionalism turned out not to be so quick after all. DRJ, Leviticus, and I discussed many of these topics with dicentra and Jeff Goldstein in real time — at first with a couple of amusing hecklers on the side, whom I eventually banished. The discussion was remarkable. Read it and see why.


Kagan: Forming a Majority Against a Constitutional Right to Same-Sex Marriage?

Filed under: Constitutional Law,Judiciary — Patterico @ 6:25 am

William Jacobson notes that Elena Kagan has declared: “There is no federal constitutional right to same-sex marriage.” That is, if she was telling the truth when she answered a questionnaire from Sen. John Cornyn (p. 28 at this .pdf link) during her confirmation process to become Solicitor General:

a. Given your rhetoric about the Don’t Ask, Don’t Tell policy—you called it “a profound wrong—a moral injustice of the first order”—let me ask this basic question: Do you believe that there is a federal constitutional right to samesex marriage?

Answer: There is no federal constitutional right to same-sex marriage.

Prof. Jacobson notes: “Reasonably assuming the four conservative judges share Kagan’s view, there now will be a definite majority on the Court against recognizing a constitutional right to gay marriage.” This is relevant because that case started by David Boies and Ted Olson will be percolating its way through the system towards the Supreme Court at some point.

I pretty firmly believe that Justice Kennedy would also be a vote against putting gay marriage in the Constitution, which I think he would see as a step too far. But you never know for sure. If Kennedy decided to find this right among those encompassed by what Justice Scalia has called the “famed sweet-mystery-of-life passage,” then Kagan would be a fifth vote against him.

If she told the truth.

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