Hypocrisy (or is it Political Advantage?) and Conservative Attacks on the Courts

Just today, the Supreme Court finally handed out its opinion in McDonald v. City of Chicago, the gun control case.  Unsurprisingly, in a 5-4 decision, the Court reversed the Seventh Circuit and remanded the case for further consideration.  Per Justice Alito, the Court concluded that the Second Amendment is in fact incorporated into the 14th and applicable to states and local governments.

This case comes on the heels of the Kagan hearings, and rumblings from Republican senators about their likely course of action on the Kagan nomination.  Their response at the hearings will certainly include attacks on liberal activist judging and might go as far as to filibuster the nomination.

This is when your head starts to spin and you wonder whether people are as stupid as Republicans presume them to be.

The Kagan Network

A few days back, I wondered about Elena Kagan's meteoric rise. My answer was that one cannot underestimate the importance of "privilege and connections." Privilege and connections are also not unrelated to how one becomes the leading candidate for the Supreme Court. One must be smart, work hard,and be focused; all of those qualities must be credited. But "the force of social networks and 'the people you know'" are not only extremely useful but almost necessary. I suggested that some of this explained why Elena Kagan would be nominated for the Court.


According to an insider to the process, this is precisely what happened. The many criticisms on Kagan as a viable candidate did not hurt her prospects. Due to her work in the Clinton administration, an activist suggested that "she has a lot of powerful liberal friends in this town. She has been very effective in using her progressive allies."


This should surprise no one; and yet, paradoxically enough, I am still surprised.

Race, Hiring and the Lessons of Becoming Justice

From the moment that stories about the inevitable nomination of Solicitor General Elena Kagan appeared on blogs everywhere, a picture soon began to emerge.  For me, however, it was not the picture her supporters are trying to paint for her.  For the more I read, the more she looks like the anti-Sotomayor.

The Lessons of Immigration Reform in Arizona for the Court

Late last week, Arizona governor Jan Brewer signed into law one of the toughest, if not the toughest, immigration bill in recent memory. The one feature of the new law that has received a great deal of attention requires police officers to stop anyone they reasonably suspect of being an illegal immigrant. Those who fail to produce a driver's license or documentation showing their legal status could be arrested. What this means for brown people in Arizona should be painfully clear. What could it possibly mean to reasonably suspect that a person is illegally in this country, particularly in the Southwest, other than by the color of her skin, her facial features, his surname or accent? This bill is, in a word, "shameful."

Governor Brewer is mindful of these concerns. Yet, she argued while signing SB 1070 into law:

"I will NOT tolerate racial discrimination or racial profiling in Arizona. Because I feel so strongly on this subject, I worked for weeks with legislators to amend SB 1070, to strengthen its civil rights protections. That effort led to new language in the bill, language prohibiting law enforcement officers from “solely considering race, color, or national origin in implementing the requirements of this section."

I do not doubt for a moment the governor's sincerity. But how can the law not lead to racial profiling? In fact, it may be said that the law encourages precisely that, the targeting of people within the state on the basis of race.


Responses to the law have ranged from direct protest to promises of litigation. I think both are important. But the more I think about litigation as an alternative, the more I keep coming back to the upcoming nomination of Justice Stevens' replacement on the Court.

Some Questions About Elena Kagan

Elena Kagan, currently the Solicitor General of the United States, is widely rumored to be President Obama's top choice to succeed Justice Stevens on the Supreme Court. The most compelling and least compelling aspect of a Kagan nomination is that we do not know where she stands on many of the issues that would come before the Court. For those of us who would prefer a strong left-of-center nominee, the basic message is that we should trust that Kagan will not be the left's version of David Souter. I understand why Kagan is politically attractive as a nominee. But I am nevertheless left with some questions.