Kagan

Obama's second SCOTUS nominee, Elena Kagan, heads to The Hill today for her first grilling.

Much has been made of her "lack of paper trail" and that she is not a judge (I'd point out that O'Connor wasn't a judge until she was appointed to SCOTUS either), so I did some sniffing around for the "body of work" that people claim she lacks and found Volokh article. Though I disagree with Volokh on many issues (despite the fact that I can't hold a candle to his arguments!), I at least trust his analysis and find that 90% of the time, he makes spot-on, in-depth remarks (for instance, I disagreed with his rant about racial IQ differences).

Of Kagan, Volokh says:

[Elena Kagan's]articles go behind glib generalizations and formalistic distinctions and deal with the actual reality on the ground, such as the actual likely effects of speech restrictions, and of First Amendment doctrine...This is legal scholarship as it should be, and as it too rarely is.

He disagrees with her 1st amendment works, ultimately, but admires them for their clarity of argument.

I bet, however, we don't get that line of questioning from teh august body of Congress. I bet we get a lot of "why do you hate the military" and "are you teh ghey."

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Sotomayor and Fundamental Rights

Randy Barnett, over on Volokh, has a good take on part of the Sotomayor hearings. It deals with a line of questions from Orrin Hatch and Russ Feingold. Unlike some past hearings, these were really good, substantive question, especially the ones from Feingold. Barnett points out that:

more than once she said a right was "fundamental" if it was "incorporated" into the fourteenth amendment.

I agree with the author...that is backwards. A right is incorporated if it is fundamental. I am not sure if she just didn't understand the question or it is her belief that a right isn't fundamental unless a court says the 14th Amendment "incorporates" it. I hope it is not the latter, because that would most certainly go against majority opinion.

Read the excerpts from the article. Again, I tend to agree with the author. Sotomayor gives responses that are totally lacking in substance. I can understand a desire to be cautious, but the questions being asked here are fair, relevant, and important. She owes us a decent effort and well-thought out answers.

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Sotomayor and the Ricci Case

The Supreme Court handed down a major decision a few days ago that pertains to Title VII and racial discrimination. The case, Ricci et al. v. DeStefano et al., has been getting a lot of press. The case can be found here. It is a long one, at 93 pages, so I will forgive you if you don't read it. Scotusblog has one of the more objective views of the case and summarizes the main points and holdings. The Court has long held that any kind of race-based selection criteria will not be allowed unless there is a substantial amount of evidence that it is necessary to remedy a past discrimination. In applying this to the Ricci case, they said an employer may not refuse to hire or promote whites unless the criteria is skewed against minorities and they are at risk of being sued. In this case, the Court felt that the fire department did not meet this criteria.

Volokh has some good analyses here and here. The second article is especially interesting, in that it uses this case to refute the notion that the Roberts Court is pro-business. Another factor that has popped up is how this will influence the Sotomayor nomination. She was part of the 2nd Circuit Panel that was overturned by the Supreme Court. One complaint is that panel she was part of initially wanted to dispose of this case with an unpublished, unsigned summary order. Eventually, they settled on a one paragraph opinion. The fact that the Supreme Court had such a difficult time with this issue (in both the majority and dissenting opinions) suggests that it may not have been the no-brainer that Sotomayor's panel thought it was.

That being said, there are plenty of legal scholars that support her position and 4 of the liberal Justices agreed with her. She has not really surprised anyone here. I think her lack of analysis on this issue isn't good, but it doesn't rise to the level of a disqualification. It would be different if this was part of a pattern, but I don't think it is. Obama has the votes in the Senate to get this nomination through. Unless it is discovered that she has been taking trips with Gov. Sanford, I think it is inevitable that she will be on the Court.

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Is this really the best person for the job?

Despite some hiccups in the process, Obama has done a mostly good job when it comes to appointing skilled people for various positions. He has certainly done a better job than the previous President. In almost all instances, while I may have some serious philosophical differences, I can't find any problems with the appointees' intelligence or experience, which is why I was disappointed with his nomination of Mary Smith to head the DOJ Tax Division.

I know this doesn't hold the same level of scrutiny as Cabinet level post or a Supreme Court nomination, but this is still an important position. Not surprising, Republicans are mad about her lack of experience. Unlike some of their problems with Sotomayor, they seem to have a legitimate complaint. Ms. Smith's resume can be found on her firm's website. It is very impressive. She did well in school and has published a variety of articles. She also seems to be a very skilled litigator and has extensive experience in securities law. Unfortunately, I can't find anything in there that shows a high level of expertise in tax law.

Now I am no expert in tax law. I took two classes in tax law, one in income taxes and the other in estate and gift taxes. It wasn't my cup of tea and will readily admit that I struggled with much of it. In my opinion, tax law is a very complex field that has frequent, major changes. This is one reason that the most popular LL.M. degree is offered in taxation. Mary Smith may turn out to be a great choice, but I would prefer that he pick a person with a stronger tax background.

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