Federal Judiciary

Overlooked points in the coverage of the Kagan nomination

By Akin Gump Supreme Court Practice Group

Three days into the nomination, not much has changed.  No Democrat has opposed Elena Kagan; no Republican has endorsed her.  No Senator or serious commentator has suggested that she won?t be confirmed, or that the nomination should or would be filibustered.

In an effort to break through the mass of coverage, I did want to highlight three points that have gotten some attention, but less than they deserve, because they have the chance to shift the dynamic of the nomination.  None will determine whether Kagan will be confirmed, but each is likely to take on more prominence in the coming weeks and could shift some Republican votes.

First, as Nina Totenberg first reported, Kagan signed this letter in 2005 strongly protesting Lindsay Graham?s amendment to limit the Guantanamo Bay detainees? access to federal courts.  This is far more direct evidence of Kagan?s views on executive powers in foreign affairs than the isolated statement in her confirmation hearings that has been invoked as supposedly showing her support for Bush-era policies.  The letter should assuage liberal opponents, but raises the question whether Graham and other moderate Republicans may vote against her.

Second, as the New York Times reported, Miguel Estrada unambiguously endorsed Kagan?s confirmation.  Estrada is a hero of conservatives, given his treatment when he was nominated by President Bush to the D.C. Circuit.  The endorsement gives Democrats and the White House ammunition to argue that Republicans are simply playing politics.

Third, as Jim Oliphant reported, Kagan signed a memo while working in the White House stating that President should sign an assault weapons ban.  And as Greg Stohr of Bloomberg has reported (no link is available), while clerking for Thurgood Marshall, Kagan wrote that she was ?not sympathetic? to the claim that the District of Columbia?s handgun ban violates the Second Amendment; that is the claim the Supreme Court accepted in the Heller case.  Both statements by Kagan reflected the position of her employers ? the White House and Justice Marshall ? and her brief statement as a law clerk about the Second Amendment claim (literally a single short sentence) represented the view of every court of appeals.  But those statements will almost certainly be enough to cause the NRA, with its considerable influence, to formally oppose the nomination.

Full post as published by SCOTUSBLOG on May 12, 2010 (boomark / email).