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Justice Kagan Confirmed

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As expected, the Senate today confirmed Elena Kagan as the 112th Justice of the U.S. Supreme Court. The vote was 63-37.  Paul Kane has this story in the WaPo.

I do not expect anyone nominated by the present administration to be a positive force in criminal law, but I am more concerned about Justice Kagan than Justice Sotomayor. The latter's experience as a deputy district attorney and trial judge assured us that she had looked evil in the face and knew how bad violent criminals really are. A career spent in the ivory tower provides no such assurance. It is too easy to be blase about crime and wring your hands over the poor, unfortunate torturer-rapist-murderer when you only read the facts in a transcript or opinion and then go home to your safe, leafy neighborhood.

I hope these apprehensions prove unfounded. We will see.

7 Comments

Kent, did your concern extend to CJ Roberts? He never served as a trial judge and the closest he came to being a prosecutor was serving as special assistant to AG William French Smith.
Justice Scalia has spent considerable time in multiple ivory towers, also never served as a trial judge, and the closest he came to looking evil in the face was when he supported Nixon's claim to ownership of certain infamous tapes while serving with the Office of Legal Counsel for the Justice Dept.
Justice Thomas was never a trial judge and while he worked with in the Missouri AG's Office, I understand that it was in the tax division.
Justice Kennedy took over his father's private law firm and was chiefly known in Sacramento as an effective lobbyist, giver of lavish parties and drafting a state initiative on spending before going to the 9th Circuit.

I certainly would agree with you that we should have more Supreme Court Justices that had actually served in the trenches of criminal law, like Alito, Sotomayor or O'Connor. Perhaps then we would not see such ivory tower opinions like the much-lamented (by us prosecutors, anyway) Crawford case where Justice Scalia infamously "[left] for another day the any effort to spell out a comprehensive definition of testimonial". You may recall that Justice O'Connor (a former prosecutor) had a great deal to say in her dissent about that rather airy detail.

Until that day comes, I hope that you will permit an observation that your apprehension appears driven more by ideology than any lack of experience in looking evil in the face.

It is the combination of left-wing ideology and ivory tower background that has me most concerned. Sotomayor's real-world experience may moderate the pro-defendant leanings that generally come with a left-leaning orientation. An ivory-tower background is far less of a concern with conservative nominees because they (generally) do not have a pro-defendant leaning in need of moderating.

Is there any evidence so far that suggests Sotomayor's real world experience has "moderate[d] the pro-defendant leanings that generally come with a left-leaning orientation"? It seems to me that so far her prosecutorial experience has done no such thing.

I was encouraged by her opinion in Wood v. Allen. Although narrower than I had hoped, it was still a win for the prosecution in a capital case. Blackmun would have voted for the murderer.

Remember this is all relative. My expectation for appointments by this administration is absolute zero -- a judge who will vote for the criminal straight down the line in the Brennan-Marshall tradition.

But Kent, why is your expectation for this administration so low? None of the three current Justices appointed by Democrats are as liberal in criminal matters as Brennan or Marshall. Nothing in Elena Kagan’s background suggests that she would be, either.

I am sure you are aware that it is a gross exaggeration to suggest that Brennan and Marshall always “voted with the criminal.”

But Kent, why is your expectation for this administration so low? None of the three current Justices appointed by Democrats are as liberal in criminal matters as Brennan or Marshall.

Only one was nominated by Obama. Clinton's nominations are irrelevant to the point. Was I not clear that Sotomayor's nomination was a pleasant surprise relative to what I expected?

Why is my expectation so low? Because Barack Obama is more than just a liberal or a Democrat. He comes from the lefter wing of the Democratic Party, entirely different from Clinton.

I am sure you are aware that it is a gross exaggeration to suggest that Brennan and Marshall always “voted with the criminal.”

Exaggeration, yes. Gross, no.

I think that a lot of left-wing soft on crime types think it a badge of honor to handwring over the poor unfortunate soul who committed what the rest of us think a heinous crime. And there's cachet in opposing the death penalty. But at the end of the day, all that's left is moral preening.

Kagan thought nothing of treating military recruiters like second class citizens at Harvard; she studiously avoided lambasting the Clinton Administration or Congress when it came to DADT, despite her hatred of the policy (which she disingenuously called the "military's policy"), and when push came to shove, she caved on the recruiters. I'm sure this paragon of moral courage will have zero qualms about freeing criminals because of prosecutoral action which offends her sensibilities.

Kagan is a disgrace.

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