Supreme Court Nominee – Solicitor General Elena Kagan

July 1, 2010

By Padmini Arhant

The Senate Judiciary Committee hearing to confirm the Supreme Court Nominee – Solicitor General Elena Kagan is in process.

Solicitor General Elena Kagan upon confirmation would succeed the retired Supreme Court Justice, John Paul Stevens to the United States Supreme Court.

Notably, the appointment would strengthen the female representation to one-third on the current bench.

While it still remains a minority. it’s a significant social progress made in recent years to the highest court on land.

President Barack Obama’s commitment in this respect is praiseworthy.

Since the hearing commencement, the Solicitor General Elena Kagan has responded patiently and diligently to most if not all of the issues raised by the distinguished panel.

The Solicitor General’s disposition conforms to the previous appointees for similar position.

Therefore, it’s not unprecedented in the Senate confirmation hearing.

Although, departure from such tradition would benefit public confidence in the potential lifetime appointee entrusted with judicial duty on life and death matter.

The Senate members posed many important issues to ascertain the nominee’s position. Some were politically motivated and the majority relevant to the cause.

Solicitor General Elena Kagan’s background and credentials has been under scrutiny from the early introduction to until now.

The Supreme Court nominee is profiled for better understanding and in some instances caricatured to place the aspirant in spotlight depending on the critics’ “ethical” standard.

Solicitor General Elena Kagan stellar academic and career achievements have rightfully earned the recognition leading up to the Supreme Court nomination.

The buzz about the nominee from the beginning was her lack of experience in the capacity as a ‘Judge,’ despite the precedence set by the Supreme Court predecessors, the latest being the former Justice William Rehnquist nominated by the Republican President Ronald Reagan.

During the Senate hearing, the nominee, Elena Kagan had to address diverse issues ranging from:

The executive power, Congressional deference, corporate influence, political activism – a common attribute towards the democratic nominee by the opposition, past incidents linked to,

The military recruitment on college campus including clarification on personal statements and memos to determine adaptability to the existing judicial view.

Solicitor General Elena Kagan maintained throughout the session that she would strictly adhere to the Constitutional law and not attempt to interpret it differently for political or any other reason.

Further, the Solicitor General elaborated on personal humility and pledged to respect the precedential settings on historic hearings notwithstanding the Supreme Court recent ruling safeguarding the second amendment.

In addition, some Senate members sought assurance from the nominee on the denial of Habeas Corpus to detained terror suspects apprehended from civil or combat environment.

The nominee in agreement with “battlefield law, including indefinite detention without a trial, could apply outside of traditional battlefields.”

International law was extensively discussed against the Constitutional law to establish the nominee’s priority pertaining to the academic period as the “Dean at Harvard Law School.”

In other controversial social issues such as abortion, gay military personnel and the “Don’t ask, don’t tell,” policy, the Solicitor General confirmed the published views.

Protecting women’s health and highlighting the drawbacks from depriving the gay members to serve the nation on equal basis.

However, in the related subjects the nominee Elena Kagan reportedly stated the following:

Source: – Elena Kagan

“ 1. From 1995 to 1999, Kagan served as President Bill Clinton’s Associate White House Counsel and Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council.

While serving in that position, Kagan co-authored a May 13, 1997 memo to the President urging him to support a ban on late-term abortions stating that, “We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto.”

2. In 1996, she wrote an article in the University of Chicago Law Review entitled, “Private Speech, Public Purpose:

The Role of Governmental Motive in First Amendment Doctrine.” Kagan argued that government has the right, even considering the First Amendment, to restrict free speech, when the government believes the speech is “harmful”, as long as the restriction is done with good intentions.

3. During her solicitor general confirmation hearing, she said that “there is no federal constitutional right to same-sex marriage.”

Also during her solicitor general confirmation, Kagan was asked about the Defense of Marriage Act, under which states don’t have to recognize same-sex marriages from other states. She said she would defend the act.”

In due fairness to the nominee’s statements, the approach to defend the constitution is a primary judicial responsibility.

At the same time, if exercising empathy in the decision-making is characterized as ‘social activism,’ then similar considerations to the authorities in the executive and legislative branches not barring the corporations exceed the judicial power granted within the confines of the law.

Unfortunately, it’s a growing trend hindering justice particularly on ethical misconduct in the democratic system.

Again, the Solicitor General perceptions on the basic human rights – women’s health, freedom of expression superseding the second amendment in the Bill of Rights, and gay rights is lacking in candor consequentially the clarity on the fundamental law that –

“All are created equal and hence qualify for the equal application of law.”

Social injustice based on race, religion, sexual orientation, gender discrimination, economic status…are explicitly prevalent given the human progress in other tangible fields.

The political, economic and religious institutions intrusion in justice has the ‘average’ human life hanging in balance with the hope that justice is served by taking into account,

Obedience to the law as well as the facts and evidences authenticated by the conscionable action to be impartial.

Solicitor General Elena Kagan is regarded for her intellect, consensus building, hard work and thoughtfulness, the valuable assets that would not only contribute to the enriched Supreme Court representation, but also empower the nation’s highest court with additional perspective.

If confirmed, Solicitor General Elena Kagan would have the opportunity to be a superb Supreme Court Justice.

Best Wishes to the Solicitor General Elena Kagan in all her endeavors.

Thank you.

Padmini Arhant

Supreme Court Nominee

May 31, 2009

By Padmini Arhant

President Barack Obama announced his nominee Judge Sonia Sotomayor as the next Justice of the United States Supreme Court replacing Justice David Souter retiring after twenty years of service.

The nomination is currently under scrutiny with intense speculations on the debate expected to unfold during the Senate confirmation hearing in July 2009. United States Supreme Court is the highest judiciary on land, decisions made by the appointees of the judicial system immensely impact human lives, often leading to a landmark ruling for years to come as evidenced in –

Brown vs. Board of education,

Roe v. Wade and,

The 2000 Presidential election between the former President George W. Bush and the former Vice President Al Gore in recent memory.

President Obama’s message reinforce the relevance —

“A nomination for a lifetime appointment to the highest court in the land is one of the most important decisions a President can make. And the discussions that follow will be among the most important we have as a nation.”

Judge Sonia Sotomayor’s extensive career and personal profile appears to represent the essence of the judicial system requiring excellence in all legal faculties prominently the constitution and the general rule of law governing our society. However, impressive academic and career achievements are never without controversies as infallibility is not in human nature.

Considering the Supreme Court justice has an awesome responsibility to be part of the collective decision-making dilemma, confirmation hearing premised on due diligence and forthright presentation would provide necessary clarifications on many pertinent issues concerning society. Further, transparency in recognition of the challenges confronting the highest court whose decisions are “as stated by the President – serious and consequential” minimizes skepticism among the general mass.

Since political representations substantially influence the process, maintaining objectivity is in the republic’s interest. The elected officials are obligatory primarily to the people in a democracy protected by the constitution and the rule of law. There have been several issues brought to attention regarding the nominee, Judge Sonia Sotomayor. While some of them described as ‘caricature’ routinely experienced by aspirants seeking the highest positions on land, other matter deserve attention and unequivocal response from the nominee.

After careful review of reports and editorials, it is clear that both left and right political factions and various women’s groups desire a position related to the opinion, speech and actions of Judge Sonia Sotomayor, given the dynamics of the Supreme Court Justice role in the judicial hearing.

The specific interests in this context are –

1. The conservatives from the right raise the issue about ‘Identity Politics’ in reference to the comment on judicial expertise between a Latina judge and a white male counterpart in light of different life experiences. –

The statement rests on general assumption about distinctive race and lifestyle predicted to impact judgment due to unique background.

In addition, the categorical representation – “A person is what his or her race, ethnicity, gender or sexual preference is, and members of a particular category can be represented – understood, empathized with – only by persons of the same identity.” –

The claim suggests exclusivity in serving a particular segment and alienates the ability of those to relate to an assorted category. Such situation could apply conversely implying the representatives’ inability to deal with groups other than their own.

2. Another contentious matter from the political right is the affirmative action and the constitutionality of racial preferences in university admissions and the criteria of necessity.

Affirmative action was justified and served well for the people deprived of fair and equal opportunities post civil rights period. In the twenty first century though a milestone reached with the first African American as the 44th President of the United States, it’s far from perfection. Nonetheless, remarkable progress made until date in numerous fields and occupation.

Therefore, the status quo affirmative action is more harmful than being helpful with the race rather than merit based criteria. Besides marginalizing the once majority now diminishing with the steep rise of minorities, the preferential treatment is a setback for the intended minority possessing intellectual equivalence to others in equal settings. Even the genuinely qualifying minority likely perceived as the affirmative action beneficiary.

3. As an appellate judge, upholding a district court’s dismissal of the New Haven, Connecticut fire fighters’ complaint denying them promotions because there were no African Americans upset a large group of the conservative and moderate members in the political party crying foul and condemned as reverse discrimination. Judge Sotomayor quoted to have expressed “Appellate courts where the policy made.”

Reports indicate that Judge Sotomayor not only follows and defends the rule of law but also respects precedence applicable to prior rulings.

Court rulings precedence could serve favorably or otherwise as noted in the world famous 2000 Presidential election declaring the former President George W. Bush, the winner.

Senate hearing must seek response from the nominee to clear the air in the fire fighters case –What would be the ruling without any constraints i.e. free of quotas for the minority group?

Unveiling the political left’s fear and frustration in the absence of any view on bona fide issues such as Roe v. Wade, the Presidential Power given the past eight years excessive use of power, Death Penalty and Gay Rights are few among the priorities in societal matter.

In the Pro-Life vs. Pro-choice, the reports reveal accordingly:

Source: Washington Post and San Jose Mercury News, May 28, 2009.

1. “Judge Sotomayor’s ruling on abortion was on the conservative side. In the ruling, she said the Bush administration had the right to prohibit abortions by overseas organizations receiving U.S. funding, as well as the right to prohibit the groups from speaking out against the restrictions.

In this case, the article noted that Judge Sotomayor was following the court’s precedents, something she might not do if she were on the Supreme Court. “There is no doubt that Judge Sotomayor’s philosophy is that she is not only a practitioner of activism, but a defender of it.”

Source: Los Angeles Times, San Jose Mercury News, May 28, 2009.

“In her only abortion-related decision, she did not come down the way abortion-rights groups would have liked:

2. In 2002, Sotomayor rejected a challenge to President George W. Bush’s “Mexico City policy,” which required foreign groups to pledge that they would not support or promote abortion.

Sotomayor spoke for a three-judge panel that upheld the policy as constitutional. The government “is free to favor the anti-abortion position over the pro-choice position and can do so with public funds,” she said.

3. Yet another incident that matter to women’s groups…

Source: Los Angeles Times, San Jose Mercury News May 28, 2009.

Two years ago, Sotomayor joined an appeals court ruling that threw out a challenge to a school district’s policy that required teachers to notify a parent if they knew a girl was pregnant. The court said the teachers had no legal basis for objecting to the policy.”

With respect to overseas organizations receiving U.S. funding for family planning – President Bush’s policy was fortunately overturned by President Obama upon swearing into the office. Nevertheless, the Senate Democrats must pose the question to the nominee in this regard given the incumbent administration’s reversal of the ruling.

President Barack Obama repeatedly pledged to the American electorate on the campaign trail about his pro-choice position and commitment to the constitutional protection granted to women under Roe v. Wade, with an assurance of his Supreme Court nominee reflecting the same.

Meanwhile, during his speech at Notre Dame the President in an effort to strike a chord with the anti-abortion majority approached the controversy through reduction in abortions and exploring adoptions.

Although, abortion is not always the first choice and in most circumstances never a hasty decision by majority of women, all accessible avenues to reduce abortion should be the goal. This must be entertained with the choices made available to every woman entitled to freedom as a human being in a democracy.

There is a correlation between Judge Sonia Sotomayor’s personal background and the conservative ruling in abortion issue with no evidence of her support for Roe v. Wade.

The analysis not directed as a personal attack, the highest court lifetime appointment beckons to scrutinize the possible reason in the coveted pro-choice v. pro-life matter.

Judge Sonia Sotomayor’s cultural and religious background traditionally favors having children and large families are common. Unfortunately, Judge Sotomayor having lost her father at an early age deprived from that experience and combined with a medical condition of juvenile diabetes posing greater risks for pregnancy and complications during childbirth probably advised against child bearing. Judge Sotomayor’s personal profile confirms there are no children.

Judge Sotomayor’s ruling in the abortion matter as cited above leads to the thought of identifying the situation with ‘richness of her life experience,’ while threatening the core constitutional protection of other women’s choice.

Women’s groups for pro-choice are justifiably concerned and urging that –

“All Americans deserve to know where the next Supreme Court justice stands on Roe v. Wade.”

In the 2008 Presidential campaign, Roe v. Wade was the wedge between the Democrats and Republicans in attracting women’s votes. The trend will continue in the 2010 mid-term elections.

Despite the above facts, Judge Sonia Sotomayor’s nomination is historic enriched with a Hispanic heritage, humble beginning, stunning academic and professional record. Judge Sotomayor being a female justice would enhance the gender deficiency in the nation’s highest court.

Judge Sonia Sotomayor’s confirmation subject to clarifications on all of the above issues would strengthen the American diversity in the United States Supreme Court.

I wish Judge Sonia Sotomayor success in the confirmation hearing.

Thank you.

Padmini Arhant