Patterico's Pontifications


Jan Crawford on Elena Kagan’s First Day

Filed under: Judiciary — Patterico @ 11:28 pm

The report carries no good news for conservatives, but the writing is excellent and memorable:

[S]he showed why many people think she’ll be a true force on the Court: She effectively drew in other the justices with her questions–asking a follow up to a question by Justice Ruth Bader Ginsburg, for example, and then striking true gold by piquing the interest of human jump ball Justice Anthony Kennedy.

“Human jump ball”!! Heh. I’m going to remember that one. Next time I use that, remember where it came from.

When Justice Kennedy perks up and tells a lawyer, ” I want to know your answer to Justice Kagan’s question,” that means one thing. Justice Kagan is having a Very Good Day.

. . . .

Her questions were clear, concise and exactly on point. She pulled together various points other justices were making, and her demeanor was at once sincere and respectful, yet also forceful and confident.

Granted, it was just the first case on the first day. And the case–a technical, somewhat trivial bankruptcy dispute–wasn’t much to speak of. Reading too much into it would be like saying Boise State should be #1 because they beat Virginia Tech to start the season. (Ahem. No.)

But it was a good start for the newest justice. If you’re a liberal who hopes she will be an intellectual force who builds coalitions, you had to like what you saw. And if you’re a conservative, you had reasons to feel nervous.

Yes — especially because Crawford gives it to you straight, and isn’t some crazed liberal wowed by Kagan simply because Kagan is a leftist.

Still. “Human jump ball.” Great stuff.

20 Responses to “Jan Crawford on Elena Kagan’s First Day”

  1. — Human magic 8-ball
    — Human coin flip

    Icy Texan (d999b8)

  2. from what i read about the S.C. they intentionally try to have her have a good time early on. Before they stick the knives in.

    so to me it is just buzzing of no significance, good or bad.

    Aaron Worthing (e7d72e)

  3. Getting back to why obama appointed her and the other female judge…..but what did she FEEL about the case? And does she have true empathy in this case? We don’t really want any application of law in these cases, that would NOT be the reason why she was appointed.

    J (2946f2)

  4. “Human Coin Flip” is more like it. A jump ball often goes to the team with the highest jumper. A Coin Flip can’t be predicted, no matter what Wall Street says.

    dfbaskwill (ca54bb)

  5. Icy Texan. Sorry, I see you were first with that. Kudos.

    dfbaskwill (ca54bb)

  6. Have there ever been a C-judge on the SC who drew such breadth-less coverage their first day on the job?

    Ever? Even one article?

    Sycophantshateme (4f78d0)

  7. but what did she FEEL about the case

    The way only a Wise Latina can feel about a case, whatever the frack that means.

    Dmac (84da91)

  8. Reading too much into it would be like saying Boise State should be #1 because they beat Virginia Tech to start the season. (Ahem. No.)

    Actually, thanks to the “would be” this is still a correct statement. Though the writer probably didn’t intend for their hypothetical to extend to the secondary part of the statement, there isn’t anything there which says it’s NOT included, either.

    Ergo, it’s still true even though BSU didn’t play VT in their opener.

    IgotBupkis (9eeb86)

  9. Greetings:

    I imagine that it will take a number of these “success” stories to cover over the fact that our newest “female” justice has had to recuse herself from roughly half of the court’s cases for this term.

    I wonder what her opinion is on “equal pay for equal work”.

    11B40 (f21766)

  10. Whenever I link to your site, Firefox identifies it as “a possible attack site”.

    Richard (e41c54)

  11. Well, it is fair warning for the troll content.

    AD-RtR/OS! (adf61c)

  12. I’m also a fan of Jan Crawford — her writing and her analysis — but this is much ado about not very much.

    Oral argument is when clever judges secure admissions and concessions from the side they want to see lose. They then use those in their written opinions, but typically only as a coup de grâce for an issue on which that side was probably going to lose anyway. (Typical construction, at or near the end of a paragraph or section of the opinion, is “Even counsel for the petitioner admitted at oral argument that ….”) But such admissions and concessions don’t happen very often by the time a given case’s advocates have reached the SCOTUS level.

    Appellate judges do indeed sometimes persuade each other to points of view that the advocates alone can’t manage. But it’s not done in public during oral arguments.

    Kennedy is indeed a human jump ball, but I’m not sure the extent to which it’s other humans that determine his trajectory, or even very much influence it. I would be very, very surprised if he’s “captured” or “controlled” or even “tipped” by another Justice’s questions during oral argument. If another Justice manages to do that — to Kennedy or any other member of the Court — it’s instead going to be during the Justices’ private conferences or, even more likely, through internal court memoranda and draft opinions that the public never, ever sees.

    Beldar (e255e8)

  13. (By the way, it’s vastly easier being a judge, asking the questions at oral argument, than being an advocate who has to answer them. If you want to rate Kagan’s performance as a persuader during oral argument, I’d suggest you listen to her oral argument on behalf of the United States of America in Citizens United, which was shockingly amateurish, dramatically below the standards of the typical next-to-last finisher in a moot court competition at a not very selective law school.

    Beldar (e255e8)

  14. Beldar

    100% agreed on her crap argument in Citizens United.

    But i have been on the record in that for a long time. i honestly had felt for a long time that she was our best case scenario–a really unpersuasive liberal. i eventually came out against her, because i felt later she was also dubious in her competance. when she was asked about a law regarding “eat your vegetables” in the hearings, she completely missed the federalism issue. i don’t mean she didn’t agree with me, she showed no signs she even understood there was a problem. that was too incompetant for me to support, even knowing that the danger was she might be replaced with a persuasive liberal.

    Aaron Worthing (b1db52)

  15. Mr. Worthing, I think we basically agree. Ms. Crawford wrote,

    When Justice Kennedy perks up and tells a lawyer, “I want to know your answer to Justice Kagan’s question,” that means one thing. Justice Kagan is having a Very Good Day.

    I just don’t think that’s so. I think the more obvious, and more likely, explanation is that Justice Kennedy — who is by everyone’s account a gracious and well-mannered gentleman — was going only slightly out of his way, at no cost to himself or anyone, to deliver a small but public back-pat of recognition to the Court’s newest member. This may, in other words, have been completely nonsubstantive, nothing more than a display of good manners and, perhaps, a bit of old-fashioned chivalry. (Cf. the famously close personal ties between Justices Ginsberg and Scalia and, until recently, their respective spouses, even though those two Justices may aptly be described as polar opposites in their legal philosophies and voting patterns.)

    Then there’s also the possibility that new Justice Kagan — or a very bright law clerk or two who are suggesting questions for her to ask at oral argument — actually stumbled upon something important (or that Kennedy, at least, thinks is important) that the advocate was indeed trying to side-step. Someone less gentlemanly than Justice Kennedy might then put this anecdote into the “Even a blind hog occasionally finds an acorn” category.

    Beldar (e255e8)

  16. (Bah. I can’t manage to get Justice Ginsburg’s name spelled right. My apologies to her for misspelling it, again.)

    Beldar (e255e8)

  17. i always liked the phrase “even a broken clock is right twice a day” better. but then i suspect pretty soon no one will understand that metaphor with all the digital timepieces.

    Aaron Worthing (e7d72e)

  18. What? Everyone has set their digital clocks to the Mil-time setting?

    AD-RtR/OS! (adf61c)

  19. I love Jan Crawford but her naked ‘bama partisanship undermines her normally excellent legal analysis. It’s hard to trust the judgment of someone who can’t see that “Satan” and “Saban” are only one letter apart. Coincidence? Hah!

    Linus (c8f7e9)

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