Judiciary Judiciary

  • October 4, 2010

    Court Packing 2010

    When President Franklin Roosevelt faced a Supreme Court that questioned the constitutionality of some of his policies, he infamously sought authority to appoint additional justices to the Court. The proposal was rightly derided as politically-motivated “court packing,” and in 1937 the Democrat-controlled Judiciary Committee dealt the Administration a serious blow when it rejected the plan by a 10-8 vote. The Committee issued a scathing report on the bill saying, “It violates all precedents in the history of our Government and would in itself be a dangerous precedent,” motivated by a desire “to change the course of judicial decision.” The Committee concluded that the bill constituted “an invasion of judicial power such as has never been attempted in this country.” (The full report is available here.)
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  • August 5, 2010

    Senator Thune on Kagan Nomination


    It is clear to me that Ms. Kagan considers herself a “real Democrat” committed to liberal principles and has, at no time, shown an ability to separate her personal beliefs from the job at hand.  Again, practical judicial and courtroom experience is not necessary, but what is critical is the ability to serve with impartiality.

    Unfortunately, I have nothing but Ms. Kagan’s word to indicate that she will be able to do so, nothing to show that she can apply the law to the facts and not her ideology to the law.  And at this time in our nation’s history, when the size of government has exploded and spending is out of control, we need more than her word.

    We need concrete evidence that she will be more than a politically motivated ideologue on our highest court.  We need a Supreme Court Justice that is willing to apply the Constitutional principles of a limited government with limited powers.  We need a Supreme Court Justice that does not believe Congress has the right to pass overreaching laws requiring Americans to eat three fruits and three vegetables a day, something she suggested at her hearing Congress has the power to do.

     

  • August 2, 2010

    Securing Our Nation’s Borders

    Rhetoric and Political Posturing Will Not Solve the Illegal Immigration Problem

    Americans have differing views on immigration, but the overwhelming majority agree that our current immigration system is broken and the government is not doing enough to solve the problem. The President is blaming Republicans for his failure to secure our borders and solve these problems. But the facts show that the responsibility for these failures lies with the President and his allies, who are more interested in scoring political points than fixing a problem of national concern.
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  • August 2, 2010

    The Case Against the Kagan Nomination

    The central question before the Senate in providing advice and consent on the nomination of Elena Kagan is the following: has the nominee demonstrated, by her background and testimony, that she is prepared to put her personal political agenda aside in order to apply the law as written? Unfortunately, the record suggests that she has not. Ms. Kagan has a long history of partisan political advocacy that subordinates an even-handed reading of the law. When the advancement of her personal political agenda conflicted with an objective reading of the law or medical science, Ms. Kagan appears to have chosen her political agenda. To make matters worse, her testimony before the Senate was less than candid about these issues.
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  • July 13, 2010

    Vacuity, Farce, and the Kagan Hearings

    Drawing on her experience as a Democratic Judiciary Committee staffer in the early 1990s, Elena Kagan wrote forcefully that Senators should expect judicial nominees to be more forthcoming in their confirmation hearings. She said that recent hearings have become “a vapid and hollow charade in which repetition of platitudes have replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis.” She called on the Senate to insist on “the essential rightness – the legitimacy and the desirability – of exploring a Supreme Court nominee’s set of constitutional views and commitments.”
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  • July 1, 2010

    AP: What Happened to the Kagan Standard?

    The Associated Press has a nice piece today summarizing Ms. Kagan’s persistent evasiveness and “rhetorical dances” over her two days of questioning. Her testimony bears no resemblance to the substantive exchanges she once advocated.
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  • July 1, 2010

    Elena Kagan and the Protection of Life

    Would She Bring a Radical Agenda to the Bench?

    The Supreme Court, originally thought to be the “least dangerous” branch, has claimed vast powers for itself, far outreaching its proper place in our constitutional system. One of the most striking bits of overreach came in the case of Roe v. Wade, where the Court took it upon itself to write abortion policy for the nation. At a time when more Americans than ever call themselves pro-life, it is worth examining whether nominees to the Supreme Court understand that the Constitution is silent on abortion, euthanasia, and many other contentious policy issues surrounding the beginning and end of life. Any Supreme Court justice should respect the judiciary’s proper role and leave to the American people and their elected representatives the difficult task of working out which laws should govern these situations. No justice should bring to the Court a zeal to impose his or her own agenda through the courts, in this or any other area. Unfortunately, Ms. Kagan’s record suggests she may have just such an agenda.
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  • June 30, 2010

    Specter, Kagan, and what’s "inadequate for confirmation purposes"

    Again today, Senator Specter pressed Kagan on a range of questions, again he was repeatedly rebuffed. Specter made his frustration quite clear.

    Recall that Specter voted against Ms. Kagan’s confirmation as Solicitor General for her failure to be forthcoming. In his words at the time, in a letter addressed to Ms. Kagan, he considered her answers “inadequate for confirmation purposes.”
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  • June 30, 2010

    Dr. Coburn Exposes Kagan's Views on Federal Power

    Kagan Says Feds Can Make You Eat Your Vegetables

    Late in yesterday’s portion of Elena Kagan’s confirmation hearing, Senator Coburn engaged her in a lengthy discussion of the scope of federal power under the Constitution. In it, Ms. Kagan, who has been remarkably tight lipped to date, tipped her hand and confessed that she saw nearly no limits to federal power. Ms. Kagan repeatedly resisted Senator Coburn’s suggestion that the federal government does not have the authority to tell you what to eat.
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  • June 29, 2010

    “Vacuity and Farce”

    Elena Kagan comes before the Judiciary Committee today as someone who has previously written that Supreme Court nominees should be more forthcoming in the confirmation process. Otherwise, she said, the hearings can “take on an air of vacuity and farce.” Straightforward testimony is especially important in the case of Ms. Kagan, who has no judicial record and relatively few academic writings by which Senators can assess her likely approach to judging.
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  • June 28, 2010

    McConnell: Kagan’s Resume and the Art of Politics

    Shortly after the first day of the Kagan hearings wrapped, the Republican Leader delivered the below comments on the Senate floor.

    “Some of Ms. Kagan’s supporters would like us to focus on her personality. They like to point out that she has a knack for making friends and for getting along well with different kinds of people in academia and among the political class. Once again, these are all fine qualities. No one has any doubt that Ms. Kagan is bright and personable and easy to get along with. But the Supreme Court is not a dinner club. If getting along in polite society were enough reason to put someone on the Supreme Court, then we wouldn’t need confirmation hearings at all.

    “The goal here is not to determine whether we think someone will get along well with the other eight justices; it’s whether someone can be expected to be a neutral and independent arbiter of the law rather than a rubber stamp for any administration.”

    Read the complete statement

  • June 28, 2010

    McDonald, Sotomayor, and Kagan

    Today’s ruling in McDonald is important in its own right, but it is also may be instructive as to what we can expect from President Obama’s judicial nominees. That is, professed fealty to the Rule of Law during confirmation hearings, followed by consistent hard left judicial activism once vested with lifetime tenure.
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  • June 25, 2010

    Elena Kagan and the Second Amendment

    Will President Obama’s Nominee to the Supreme Court Uphold Gun Rights?

    The right to “keep and bear arms” is a cherished feature of American liberty and is enshrined in the Second Amendment to the United States Constitution. Nonetheless, this right has been the subject of steady attacks from the left for decades. Recently, supporters of the Second Amendment won an important victory when the Supreme Court struck down the Washington, D.C., gun ban. Any day now, with the pending McDonald case, the Court is expected to rule on whether the right to bear arms protects against encroachment by state and local governments as well.
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  • June 21, 2010

    Examining Elena Kagan’s Political Philosophy

    Her Record Suggests a Liberal Political Lawyer with Activist Judicial Sympathies

    During the Bush Administration, many Democrats argued that a judicial nominee’s personal political ideology should play a prominent role in the Senate’s determination of whether or not the nominee should be confirmed.[i] While the proposition that a nominee should be disqualified based simply on their private, personal views is contestable, in the case of Ms. Kagan, her political background and policy views may be relevant, for two key reasons.
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  • June 17, 2010

    Elena Kagan and Experience

    Does Kagan have the Requisite Legal Experience to Serve on the Supreme Court?

    An important question to ask of any Supreme Court nominee is whether, and how, his or her career to date has prepared them to serve on the bench.

    Most agree that serving as a judge is excellent prior experience to serving as a Supreme Court Justice. The overwhelming majority of Americans say that prior judicial experience is a positive factor for the Court.[i] In fact, asked about the favorability of a number of qualities a nominee might possess, Americans put prior judicial experience at the top of the list.[ii]
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  • June 10, 2010

    Senate Judiciary Committee Dems give Chatigny thumbs up

    At this morning’s markup, after extended debate, the Judiciary Committee reported the Chatigny nomination to the floor. All Republicans voted no, Senator Feinstein passed, and the remaining Democrats voted yes. Senator Klobuchar took the lead in defending the nomination. Other than cursory remarks from Senator Leahy, other Democrats were silent.
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  • June 9, 2010

    Judiciary Committee Vote Expected on Troubling Nomination


    Tomorrow at 10 a.m. the Judiciary Committee will consider the nomination of district court judge Robert Chatigny, who is up for a promotion to the Second Circuit Court of Appeals. This is one of President Obama’s most controversial nominations to date and strong opposition is expected.

    Judge Chatigny has a history of extreme leniency in criminal sentencing, particularly in the field of sex crimes. In the 12 child porn cases Judge Chatigny handled as a judge, he issued a sentence less than the recommended minimum eight times and issued the minimum the other four times. Frequently, his downward departures were based on factors not considered relevant under the sentencing guidelines.

    Emblematic of Judge Chatigny’s activist judging is his handling of the “Roadside Strangler” case, involving a Connecticut serial killer who raped and murdered eight women and girls in the early 1980s. The execution occurred- but only after repeated stays were issued by Chatigny, who expressed sympathy for the killer, saying he suffered from “death row syndrome” and that his “sexual sadism” was a mitigating factor. The Roadside Strangler, he said, “may be the least culpable, the least, of the people on death row.” Chatigny also attempted to strong arm the defense attorney into disregarding his client’s wishes to drop further appeals, going so far as threatening the attorney’s law license. In addition, the judge failed to disclose a direct conflict in the case on the basis of which he should have recused himself.

    A clip of Senator Coburn questioning Judge Chatigny is available here.  (Please be warned, this exchange includes an extended quotation from the killer’s own description of his brutal crimes.)

    RPC Analyst Gregg Nunziata

  • June 9, 2010

    Advice and Consent on the Kagan Nomination

    Baseless Attacks on Sitting Justices Should not Distract the Senate from its Duty

    Providing advice and consent on presidential nominations to the Supreme Court is among the most important functions of the United States Senate. To fulfill its duty, the Senate must engage in a thorough evaluation of a nominee’s record and his or her fitness for the bench. Yet just two days after the nomination of Elena Kagan to the Supreme Court, Judiciary Committee Chairman Patrick Leahy “sounded more eager to talk about what he thinks is wrong with the current justices than what he thinks is right about Elena Kagan."
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  • May 27, 2010

    Evaluating the Kagan Nomination

    What is known, so far, about President Obama’s choice for the Supreme Court

    Two weeks ago the President announced that he would nominate his friend, U.S. Solicitor General Elena Kagan, to the United States Supreme Court. Judiciary Committee Chairman Leahy has indicated his intention to hold hearings on the nomination just one month from now.
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  • May 7, 2010

    What America Deserves in a Supreme Court Justice

    Any Supreme Court nominee must have a demonstrated commitment to impartially applying the law, not legislating from the bench. A Justice must make decisions based on the law – not emotions, personal experience, or opinion.A Justice must never be a rubber stamp.
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