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That’s the Way She Likes to Judge: Luther Campbell Backs Kagan
01 year ago
Big SCOTUS news today: Luther Campbell of 2 Live Crew has officially endorsed Elena Kagan.
In Campbell’s column in today’s Miami New Times, he casts Kagan as a strong woman willing to make unpopular decision–such as defending his group’s album As Nasty as They Wanna Be during a 1989 obscenity case. Kagan wrote a brief on behalf of the recording industry during the case’s appeal. In it, she argues that the album is not obscene by established standards, since “Nasty does not physically excite anyone who hears it, much less arouse a shameful and morbid sexual response.” She also cites a Supreme Court ruling written by Justice Scalia stating that all music has inherent value.
Standing up for the men who gave the world “If You Believe in Sex,” a song I’m referencing because the title can appear here, wasn’t a popular choice with D.C. kingmakers, then or now. But the appeals court vindicated Kagan and Campbell and overturned the ban on the album.
In today’s column, Campbell goes on to take Senate Republicans to task for their anxiety-driven demonizing of late Supreme Court Justice Thurgood Marshall, for whom Kagan clerked:
With the late justice’s son Thurgood Jr. in the audience, [Alabama Sen. Jeff] Sessions criticized Kagan for associating herself with “well-known activist judges who have used their powers to redefine the meaning of our constitution.” He named Marshall. I guess when Sessions refers to “our constitution,” he’s referring to the version before the 13th and 14th amendments were passed and when his great-grandparents owned a plantation stocked with slaves.
Ouch. (Incidentally, those Senate Republicans can’t name any Marshall decisions with which they disagree.) So, while Kagan’s still not popular with civil rights groups, she’s solidly Campbell’s homegirl.
Civil Rights Groups Not as Hot for Kagan as She Is for Marshall
01 year ago
If you’ve tuned in to Elena Kagan’s Senate confirmation hearings, you may have found it odd that the GOP has tried to radicalize Kagan through her work and affinity for Thurgood Marshall. But before the GOP mind-bogglingly attempted to align Kagan’s judicial philosophy with one of the most iconic figures in civil rights’ history, perhaps they should have paid attention to which civil rights groups are actually in the Kagan corner. Because not too many of them are eager to back her nomination whole-heartedly.
In a statement today, the National Bar Association deemed Kagan “qualified” to serve as a Supreme Court justice but withheld an endorsement “due to the insufficient information to ensure that Ms. Kagan’s views are consistent with the core mission of the organization.” Said NBA President Mavins Thompson: “Solicitor General Kagan has not yet established a demonstrated track record of vigorously applying the law to uphold civil rights and personal freedoms.”
Meanwhile, in a Washington Post article, Barabara R. Arnwine, executive director of the Lawyers’ Committee for Civil Rights Under Law, said “There isn’t a judicial record to review, indicating her views on critical civil rights matters.”
The NAACP and the NAACP Legal Defense Fund and Eduction Fund indicated their support for Kagan’s nomination in a detailed report on Kagan’s record, citing her “professional credentials” and “independence of mind.” But they also relayed their “concerns” for the nominee.
While serving in the Clinton administration, Kagan worked on President Clinton’s Initiative on Race, a yearlong project to assess the state of race relations in the United States. Of her work on the initiative, the NAACP report states that “while her work on civil rights issues during this period is interesting, there is a question concerning what it reveals about her own views on the myriad problems in achieving justice for all Americans.”
The NAACP Legal Defense and Educational Fund report also paid particular attention to Kagan’s teaching appointments when she was dean at Harvard University Law School. It called her hiring record “deeply disappointing”: Of the 32 tenured and tenure track appointments made, “Twenty-five were white men, six were white women and one was an Asian-American woman.” Kagan did hire two women, two African-American males and one Indian male, but they were not in tenure track jobs. Although Kagan failed to diversify the faculty at Harvard Law, she did manage to attract a diverse student body, the report states.
Today, the Congressional Black Congress submitted questions to Senate Judiciary Chairman Patrick Leahy to be relayed to Kagan during the review, to address her views on affirmative action, sentencing disparities between crack and powder cocaine, racial profiling, and other issues of importance to African Americans. Thus far, none of these questions have come up. Indeed, for all the talk about Marshall’s judicial philosophy, no senator has shown interest in Kagan’s views on the racial justice and economic equality concerns that so defined Marshall’s career.
For clarity on Kagan’s views on issues of race, we may just have to hope for the best.
Photo by Getty Images/Alex Wong
Kagan Hearings: Thurgood Marshall Goes on Trial
01 year ago
Update @ 12:22 ET: Elena Kagan finally seems to have run out of patience with the Thurgood Marshall line of attack (which, again, is bizarre given her thin civil rights record). Arizona Sen. Jon Kyl’s questions today followed up on his obsession with Marshall in yesterday opening statements. As Kyle wound into his Marshall questions, Kagan snapped back that, if she’s confirmed, “You’ll get Justice Kagan, you won’t get Justice Marshall.”
Kyl persisted, again raising the famous Marshall quote that his judicial philosophy is to “do what you think is right and let the law catch up.” Kagan parried tartly, “I actually never heard Justice Marshall say that,” but rather saw it attributed to a clerk. Either way, she added, “Justice Marshall was a man who spent many decades of his life fighting for the eradication of Jim Crow segregation and you can kind of see why he would work as hard as he can” to make the law “catch up.”
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Alabama Sen. Jeff Sessions delivered on expectations that he’d be the Republican bad guy at Elena Kagan’s hearings this morning, while Sen. Orrin Hatch used Kagan as a sounding board for his lengthy defense of the Roberts court’s Citizens United ruling. But the big story remains the Republicans’ decision yesterday to tar Kagan by association with Thurgood Marshall. Washington Post columnist Dana Milbank rounded up the thrusts succinctly:
“Justice Marshall’s judicial philosophy,” said Sen. Jon Kyl (Ariz.), the No. 2 Republican in the Senate, “is not what I would consider to be mainstream.” Kyl — the lone member of the panel in shirtsleeves for the big event — was ready for a scrap. Marshall “might be the epitome of a results-oriented judge,” he said.
Sen. Jeff Sessions (Ala.), the ranking Republican on the panel, branded Marshall a “well-known activist.” Sen. Chuck Grassley (R-Iowa) said Marshall’s legal view “does not comport with the proper role of a judge or judicial method.” Sen. John Cornyn (R-Tex.) pronounced Marshall “a judicial activist” with a “judicial philosophy that concerns me.”
As the Republicans marshaled their anti-Marshall forces, staffers circulated to reporters details of the late justice’s offenses: “Justice Marshall endorsed ‘judicial activism,’ supported abortion rights, and believed the death penalty was unconstitutional.”
Milbank and others have found the approach bizarre. As the famously snarky Milbank quipped, perhaps Nelson Mandela and Mother Teresa are next on the GOP hit list. And as Dom Apollon wrote in ColorLines, all the talk about Kagan and Marshall is particularly strange given that Kagan’s career bears no resemblance to Marshall’s judicial philosophy. But the Republican senators are swiping at Marshall for good reasons–at least for both their short-term political strategy and long-term effort to game the judicial confirmation process.
In the immediate, the Kagan-as-Marshall line of attack is just the latest example of the modern GOP’s hearty embrace of the southern strategy. From John McCain’s presidential campaign forward, the party has plainly calculated that its future turns on a motivated–read: scared and angry–southern, white base. When they thrash at Marshall, they’re not speaking to Kagan, their Senate colleagues or national journalists. They’re speaking to the base, where few legacies would be more villainous than Marshall’s. Brown and Marshall’s subsequent role on the bench represent the ultimate example of using federal authority to disrupt the corrupt local power bases.
But there’s a bigger, more lasting picture as well. The Republican Senators aim not to assault Kagan but to skew the definition of a non-controversial nominee further still to the right. The goal remains to define an originalist interpretation of the Constitution as a mainstream idea. Marshall would seem the most obvious proof of that view’s flaws–as Kagan implied in her opening statements, Marshall’s understanding of the law as a work-in-progress informed his leadership in killing off Jim Crow. Nonetheless, you can’t defend strict originalism without first discrediting Marshall’s supposed activism. And nobody ever accused today’s right of being afraid of swinging for the fences. So here we are, arguing over whether Thurgood Marshall was a dangerous judicial radical.
It’s also a fight the Democrats have picked. The Roberts court surely is a standout as an example of an activist court, ranging from Citizens United through to this week’s gun control ruling, it has reached out to change the law as meets the rightwing justices’ perspectives. As Slate’s Dahlia Lithwick wrote, Democrats have done their best to use the Kagan nomination to put that record on trial. The Republican attack on Marshall is, in part, the GOP’s counter.
Photo: Getty/Mark Wilson
Kyl Shoots and Misses on Kagan Immigration Brief
01 year ago
Day one of Elena Kagan’s confirmation hearings have wrapped up and she’s already heard a mouthful of criticism, some of which is plain inaccurate. In a notable example, Arizona Sen. John Kyl, while suggesting that President Obama picked Kagan because “he wants justices who will use the bench to advance progressive goals,” pointed to a brief from the solicitor general’s office clarifying the government’s position on U.S. Chamber of Commerce v. Candelaria. The case, recently taken up by the Supreme Court, challenges a 2006 Arizona law that punishes businesses for hiring undocumented immigrants.
In his comments, Kyl said he is “deeply troubled” by a brief released by the solicitor general calling for the Court to overturn the 2006 law, which takes business licenses away from employers found to have hired undocumented workers. But Kagan did not write the brief. The brief was released by an acting SG after Kagan’s recusal, following her nomination to the court.
Perhaps Kyl was cribbing from the conservative National Review Online’s Mark Krikorian (the head of the right-wing Center for Immigration Studies). Krikorian also lambasted Kagan last week for the Candelaria brief. In addition to being wrong about her responsibility for the brief, since it was issued after Kagan’s recusal, Krikorian’s argument is wrong substantively. He claims that the brief calls for the courts to rule against the federal “E-Verify” program for employers. In fact, the brief says the court should not rule on that program but rather let the “political branches” deal with it. The brief is about the implementation of additional state-level sanctions if an employer is found to have hired an undocumented immigrant. Krikorian is confusing the matter.
What are actually at issue in the case are significant questions about the extent to which states can implement immigration laws beyond federal laws. The preemption question, of course, is also a central part of legal challenges to the more recent and well known Arizona immigration law, SB 1070.
According to ImmigrationProf Blog, Candelaria raises three questions:
(1) whether an Arizona statute that imposes sanctions on employers who hire unauthorized immigrants is invalid under a federal statute that expressly “preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens”;
(2) whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system, is preempted by a federal law that specifically makes that system voluntary;
(3) whether the Arizona statute is impliedly preempted because it undermines the “comprehensive scheme” that Congress created to regulate the employment of immigrants.
So the case is about whether Arizona can attach additional state level penalties on employers who are found to have hired undocumented immigrants. The federal government’s E-verify program, which is a database of names and social security numbers, already checks the immigration status of new hires. The Arizona law takes this program a step further by imposing an additional state level sanction.
According to the Center for American Progress, which is not really progressive on matters of immigration:
The acting solicitor general of the United States argued (correctly) that Arizona had overstepped its authority by establishing a parallel employer-sanctions law. He stated that the state law was explicitly preempted by federal law and that the underlying court decision should be reversed. This is an important signal and a critical first step in halting the growth of state and local immigration legislation. Given the current developments in Arizona and elsewhere in the country, the administration now has an opportunity, and a responsibility, to provide a more expansive articulation of its views on federal preemption of immigration regulation and enforcement by the states.
Photo: Sen. Jon Kyl (R-AZ) during confirmation hearings for U.S. Supreme Court Justice nominee Elena Kagan on Capitol Hill June 28, 2010 in Washington, DC. (Photo by Brendan Smialowski/Getty Images)
Friday Twitterbreak: Ethnic Studies, Schmethnic Studies
01 year ago
I couldn’t find a screengrabbable tweet of my favorite quote of the week, so I just have to tell you about it manually. Here it is:
Nobody taught me anything about my cultural heritage in school.
That’s white right-wing blogger Jammie Wearing Fool, and yes, that link goes to Pandagon blogger Jesse Taylor’s teardown of the statement, rather than to the statement itself. Buffer zones, y’all.
On to the tweets! Law & Order is being canceled after 20 years! Mary J. Blige as Nina Simone! Elena Kagan played softball! And the hits keep coming!
As always, you can follow us on Twitter at @racialjustice. The ColorLines Tumblr is also highly recommended. Like the magazine, but with more charts and funny videos.
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And finally:
Nice work this week, everyone.
Waiting for Kagan on Immigration and Arizona
01 year ago
On many civil rights issues, Supreme Court tap Elena Kagan remains something of an enigma, troubling for critics on the left and right alike. But an upcoming SCOTUS case and an old memo published in the New York Times might offer a sneak preview of the paper-trail-challenged nominee’s position on immigrant rights.
In a recently unearthed 1987 memo, drafted during Kagan’s clerkship with Justice Thurgood Marshall, Kagan evaluated a judge’s decision to shield an immigrant from deportation by dismissing a past guilty plea for a petty crime. The Justice Department argued that the court had overstepped its authority. Kagan agreed with that legal reasoning, reports the Times. Granted, the political climate surrounding this case back in 1987 might have differed from the restrictionist rancor flooding Washington these days. But the case resonates with due process issues that immigrants still continue to struggle against in the courts.
Just weeks ago, the Supreme Court ruled in Padilla v. Kentucky that lawyers have an obligation to fully inform immigrants of the possible consequences of a guilty plea under immigration law. That case involved a pot trafficking charge that resulted in mandatory deportation. The crime that Kagan considered seems arguably milder: “unlawfully dealing in food stamps.” (Trafficking in food benefits, as ARC’s Seth Wessler recently explained in a Colorlines investigation, is an ethical can of worms worthy of its own debate.)
More of Kagan’s views on immigration may come to light soon as the Supreme Court prepares to hear another potentially far-reaching immigration case, Chamber of Commerce of the United States v. Candelaria (h/t ImmigrationProf). The case stems from a challenge to the precursor to Arizona’s infamous SB 1070: a 2007 law that penalizes employers who hire undocumented workers. Ironically, current Homeland Security Chief Janet Napolitano was the original defendant, as the former Arizona governor. If the court takes up the case, its opinion would have a major ripple effect for Arizona and other states that have tried to legislate their own anti-immigrant restrictions to augment (or further distort) broken federal laws.
The Los Angeles Times reports that the court has been waiting for Solicitor General Kagan to weigh in on the case before it decides whether to take it up. That, of course, leaves the Obama administration in a political bind. As the Times put it:
She could urge the justices to overturn the Arizona law on the grounds that it conflicts with federal responsibility over immigration, and thereby provoke the wrath of conservatives across the nation. Or, she could say the Arizona measure does not interfere with federal immigration law — a stand that would provoke outrage among Latinos, civil libertarians and the U.S. Chamber of Commerce, which sponsored the appeal to the high court.
It’s hard to imagine this won’t come up in Kagan’s nomination hearings. Regardless of when and how the administration weighs in on the pending case, senators on both sides of the isle are sure to draw her out on the question of immigration enforcement generally and Arizona’s laws specifically.
Photo: Creative Commons/Harvard Law Record
Kagan’s Harvard Hiring Record a Vision in White
01 year ago
President Obama pointed out this morning that Solicitor General Elena Kagan, his pick to replace Justice Stevens, was the first woman to lead Harvard Law School. He noted Kagan’s reputation for broadening Harvard’s faculty to include more conservative viewpoints, to challenge the school’s caricature as a liberal bastion. Many have praised that record. But over at Salon, where Glenn Greenwald has been panning Kagan for weeks, a group of law professors have pointed out another fact about her hiring record: Kagan hired just one non-white faculty member for tenured or tenure-track positions in her years as dean, from 2003 to 2009.
When Kagan was dean of Harvard Law School, four-out-of-every five hires to its faculty were white men. She did not hire a single African American, Latino, or Native American tenured or tenure track academic law professor. She hired 25 men, all of whom were white, and seven women, six of whom were white and one Asian American. Just 3 percent of her hires were non-white — a statistic that should raise eyebrows in the 21st Century.
All those white men were, no doubt, the result of Kagan’s effort to recruit conservatives. Nonetheless, the professors make a fair point. It’s a point that the White House has already begun parrying. After Duke University law professor Guy-Uriel Charles first raised the critique in an April blog post, the administration circulated a memo arguing that Charles overlooked promotions and appointments inside the school as well as the offers Kagan made to non-white faculty — people she tried and failed to hire.
Charles and his Salon co-authors were unimpressed:
Do women and people of color find a tenured or tenure-track professorship at Harvard Law School less attractive than white men? Do they really prefer to teach at less prestigious schools? Or if they only prefer not to teach at Harvard because of perceived hostilities to women and people of color, why is it that Kagan could somehow overcome these perceptions when it came to conservatives, but not women and people of color?
No doubt the subject will come up during the coming Senate confirmation hearings, so we’ll surely get to hear Kagan speak for herself on why should couldn’t hire non-whites. In the meantime, we’re working on details of what to expect from Kagan as a jurist on racial justice questions.