This is burning up memeorandum:
Elena Kagan said as a U.S. Supreme Court law clerk in 1987 that she was “not sympathetic” toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed pistol.
Kagan, whom President Barack Obama nominated to the high court this week, made the comment to Justice Thurgood Marshall, urging him in a one-paragraph memo to vote against hearing the District of Columbia man’s appeal.
The man’s “sole contention is that the District of Columbia’s firearms statutes violate his constitutional right to ‘keep and bear arms,’” Kagan wrote. “I’m not sympathetic.”
Kagan, currently the U.S. solicitor general, has made few public remarks about the Constitution’s Second Amendment. The Supreme Court in 2008 ruled, in a case that overturned the District of Columbia’s handgun ban, that the Constitution protects individual gun rights.
Oddly enough, I am not very sympathetic towards someone who was convicted of violating gun laws, either! In fact, I can think of any number of people far more deserving of my sympathy.
I assume this is a big deal because of the recent DC gun decision, but I’m not seeing the controversy.
Poopyman
I think it’s a big deal partly because they actually found something she stated an opinion on, and partly because that opinion touched on a hot-button issue, albeit obliquely.
And a tiny bit because just maybe the right wing noise machine will take this and start screaming that she wants to take all of your guns away OMG OMG OMG.
And thus the cycle will be complete.
flukebucket
Will this hurt her or help her with “the left”?
For the right this will be proof positive that Obama is coming for our gunz.
PaulW
It was either this or complaining about how Kagan ties her shoelaces.
GambitRF
It’s a controversy because empathy is very important for a supreme court nominee in even-numbered years, just as it’s the absolutely worst quality a nominee can show in odd-numbered years (see: Sotomayor)
Maude
Obama is going to take away our guns.
OMG, Kagen is going to put us in jail.
/wingnut
Mark S.
Because you’re supposed to anticipate Supreme Court decisions twenty years in the future.
This is a lot like the flak Sotomayor got in the firefighter case.
kid bitzer
but john, this report leaves out the only important question:
was he black?
because obviously if he was black, then he was a drug-dealing young buck who was probably an islamic terrorist as well, and so he should be prosecuted to the full extent of the law.
whereas if he was white, then he was a patriotic freedom-fighting all-american who was being persecuted by liberal elites.
so can we get all of the facts on the table here?
4tehlulz
She probably thinks you shouldn’t ice dogs in front of children either. Fucking hippie.
Cacti
Wow.
A young Kagan some 23 years ago already had a better understanding of the Second Amendment than Justices Scalia, Kennedy, Thomas, Roberts, and Alito.
smijer
It coulda been Heller 20 years earlier. I don’t know the details & I don’t know how DC’s laws were then, but I’d almost hazard a “shoulda been”. It isn’t beyond belief to think that without Kagan’s bad advice it woulda been.
Normally if someone exercises a constitutional right and is convicted for a crime as a result, I am pretty sympathetic.
It pisses me off that Kagan isn’t sympathetic toward a man imprisoned for exercising his constitutional right to self-defense.
Scott
Oh noez, not sympathetic to criminals?! This is worse than Hitler.
geg6
Well, I’d go even further if it were me. I’d like to see all handguns and assault weapons (automatic and semi-automatic) banned.
Guess I’ll never be a Supreme Court justice now. And I was so looking forward to it.
Sentient Puddle
It’s a controversy for the same reason that it’s considered reasonable discourse to state that we should not be infringing upon a terrorist’s rights to buy guns.
J.W. Hamner
Well, if you don’t tell anybody about the guns you own then they can’t come and take them. Thus Kagan’s lack of sympathy proves that proves she wants to take your guns so that she can round you up and put you in FEMA camps.
Gregory
Silly, the “controversy” is whatever the GOP, Drudge and the so-called “liberal media” — as if there’s a difference — say is the controversy. Regardless of whether it’s something perfectly acceptable five minutes ago or espoused by Republicans themselves ten minutes ago.
They just keep flinging stuff at the wall hoping something will stick. Those fundraising emails won’t write themselves!
Anne
This. Exactly this.
BombIranForChrist
Man, people are really scraping the bottom of the barrel to find something on this woman.
It almost makes you wonder if this whole “nominee with no paper trail” is the boon that everyone seems to think it is. I would almost rather have a nominee that just comes out and says “I think all men are pigs and will vote accordingly” and let everyone freak about something substantive than let the freaks in the media decide what your big issue or fault is.
Also, Kagan is an Islamo-lesbian.
Kthxbye
bifc
Joseph Nobles
Obviously she wasn’t sympathetic to the constitutional argument excusing the man carrying an unlicensed weapon. And in the SG questionaire linked by Bloomberg, she said this:
In other words, the Supreme Court has ruled on the nature of the Second Amendment guarantee of gun rights and she would uphold the precedent. That still wouldn’t excuse the man having an unlicensed weapon. She wouldn’t be sympathetic to the argument today.
James Joyner
Given how commonly held her view of the 2nd Amendment is, I don’t think it’s a big deal, either.
But I would like to think a Supreme Court justice would at least be “sympathetic” to a citizen’s not unreasonable claim that his Constitutional rights are being violated. She could disagree with his interpretation of said right, of course, but she should at least be sympathetic to the argument.
El Cid
The only Constushull Amendents that count are the 2nd and 10th, all the others are librul soshullist Hitler inventions and are imposed by activist judges.
Rick Taylor
There’s that empathy thing again.
__
I admit I wasn’t thrilled with Kagan as a pick, but the stupid attacks on her from the light and right have endeared her to me.
Ash Can
A Supreme Court nominee who believes in upholding the rule of law?? WE CAN’T HAVE THAT::sputterflail::
Cacti
It’s a big deal since the Far-Right Five took out the old SCOTUS sharpie and drew a big black line through the part of the Second Amendment that reads:
“A well regulated Militia, being necessary to the security of a free State…”
jl
@Gregory:
I agree. IMO it is merely a pretext for a purely manufactured controversy.
I am not a lawyer, but, how can Kagan’s advice be seen as controversial or proving anything?
The Heller decision concerned a ban. The Heller decision allowed room for regulation, including licensing (seems to me that the Bloomberg story Cole linked to said as much).
The case Kagan commented on concerned someone who was in violation of licensing law.
So?
How is Kagan out of line with anything?
Unless the guy was a terrorist, in which case, apparently the new GOP cause is that they should retain the right to buy and bear arms, even if all their other rights are stripped away.
A sizeable minority in this country has gone insane, or is pretending to go insane for cynical political reasons.
ajr22
OT: Sarah Palin was in Illinois giving a speech and she took shots at my High School for not sending our girls basketball team to Arizona for a tournament. Our school has a large Hispanic population something clearly Palin is not sympathetic to. I just really hate that succubus, and wish she would keep my old school’s name out of her mouth.
aimai
@PaulW:
Exactly right.
aimai
Rick Taylor
And I do find it striking how obvious Republican hypocrisy has become. Empathy for brown people is putting feelings above the law; judges should call balls and strikes impartially. But empathy for white people who don’t like gun laws, or a white firefighter who didn’t get a job are essential!
Rick Taylor
And I do find it striking how obvious Republican hypocrisy has become. Empathy for brown people is putting feelings above the law; judges should call balls and strikes impartially. But empathy for white people who don’t like gun laws, or a white firefighter who didn’t get a job are essential!
LittlePig
So, let’s sum up.
Licensing guns – bad!
Licensing people – good!
Ladies and gentlemen, today’s Republican party. You will never find a more wretched hive of scum and villainy.
El Cid
By the way, speaking of large scale criminal policies, this from the AP itself (which will probably be forced to apologize and/or retract shortly):
No amount of harsh and punitive policies and “aid” to Mexico will prevent the narco-paramilitary spillover into the U.S. as long as there’s a multi-billion dollar market for illegal narcotics.
If we don’t wise up and decriminalize, this is about to get uglier than it ever has been.
But, of course, what’s important is that right wing crazies and politicians get to brag about sending darkies to prison and how many new prisons they’re opening, while Mexican and U.S. border officials have a nice new revenue stream of payments by narco-barons.
jibeaux
They hate empathy, but like sympathy. Apparently.
smijer
@jl
The Heller decision concerned DCs licensing requirements that amounted to a ban as it was near impossible to get licensed.
I’m with everyone here who feels some of the attacks on Kagan are stupid.
I am not with those who say that Kagan’s 2nd amendment views were already well known. I’ve been following it and this is the first disappointing evidence that her views are weak.
I am not with those who complain about rightists who say amdendments 2 and 10 are the only ones that matter, but then seem only to care about 1 and 4 themselves.
They all matter.
Rick Taylor
I do not particularly approve of the strategy of choosing a justice with a thin paper trail, which results in the opposition making fools of themselves as they look for something, anything to pin their opposition on. I must admit however, it is highly effective.
slag
@Rick Taylor: See…she said “not sympathetic”. That’s the controversy. If she had said “I’m not empathetic”, no problem.
Or what jl said.
jl
I hate to say it, since I have discouraged Cole from endangering his fragile mental constitution by paying attention to this nonsense, but he might consider reissuing his list of dimwit and silly reasons why Kagan is unfit.
He missed some, and there are new ones popping up each day:
she is Algore fat,
she is not a WASP (that is she is a Catholic and/or Jew)
she held beliefs on the second amendment not inconsistent with a later Supreme Court ruling.
Where are the Know Nothings when we need them. We need some experts playng this game.
Cacti
@El Cid:
I disagree.
In terms of expanding police powers, militarizing police forces, and eviscerating 4th Amendment protections, the War on Drugs has been a rousing success.
Did Nixon have another goal?
Martin
@GambitRF: This. The problem for the GOP is here Kagan is going with a strict ‘apply the law’ approach and not being empathetic to a cause they care about. It’s exactly what they demanded but with the outcome they don’t want.
At the same time, they know their right flank will want them to make the ‘originalist’ argument that the 2nd amendment never intended to allow the government to license firearms, but they know that politically that’s completely untenable.
They just don’t know what the fuck to do with this.
LittlePig
__
Exactly. Of course Doofus McDoofusson needed a license for the gun, the moldering corpse of Charlton Heston to the contrary.
Ash Can
@James Joyner: Maybe she felt that someone whining about unrestricted access to his precious handgun wasn’t quite as reasonable as a municipality taking steps to curb a high rate of violent crime.
cleek
being sympathetic to an argument isn’t the same thing as being sympathetic to a person.
the former means you are in agreement with the argument. the latter means you can understand the person’s feelings. it’s easy to distinguish between them because arguments don’t have feelings for you to understand.
i think Bloomberg is confusing the two meanings here.
that “sympathetic” seems to be about his contention, not the man himself.
anyone have a link to the actual document ?
jl
@smijer: Thank you for the clarification.
Now we have a basis to investigate the relevant facts.
Kagan made her comment in 1987. Where the DC regulations discussed in the Heller case similar? Did the 1987 regulations amount to a de fact ban?
Anyone know?
b-psycho
@Sentient Puddle: A large part of the reason why cross-referencing terrorist watch lists when it comes to background checks isn’t considered a no-brainer is because of how vague the standard is for ending up on one. But the Right will never address that, since blanket suspicion is a plus for their base.
Gregory
@James Joyner:
Of course, she might express her disagreement with said interpretation of said right by saying she wasn’t sympathetic with the claim. Sheesh.
Ash Can
@ajr22: I’ll repeat what I said in the previous thread about this: I wonder what Mark Kirk would have to say to his North Shore constituents about this today.
Alan in SF
Any position short of Obama’s “We need lots more guns everywhere” position is toxic.
b-psycho
@Ash Can: I consider poverty & the War on Drugs to be more important factors in violent crime than the availability of guns. Is that wingnutty?
ThatLeftTurnInABQ
@El Cid:
Jan 2012: President Palin is sworn into office
Feb 2012: US invasion of Mexico begins. Secretary of State Tom Tancredo predicts we will be greeted with piñatas and tamales. ¡Viva La
Reconquista!Martin
@James Joyner: But the man wasn’t suing DC for violating that right. He was arrested breaking the law. How do you tell the difference between someone protesting an unjust law and someone knowingly breaking that law when it’s so easy for the latter to claim the former? Should we be sympathetic to every gang member picked up with an illegal MAC-10 pointed out of his window, because he was clearly just making a 2nd amendment protest?
jl
Wikipedia says that Heller decision struck down this law:
The Firearms Control Regulations Act of 1975 was passed by the District of Columbia city council on September 24, 1976
So, Kagan was not troubled by same regulations struck down by Heller, seems to me.
So, this one is not obviously silly.
I wish they had tried ‘Kagan is Algore fat’ again.
Martin
@cleek: Excellent point.
smijer
@jl – not an expert but the internets suggest that the law that was struck down in Heller was passed in ’76. That suggests the answer is yes.
Again, my hair isn’t on fire about this. I suspect Kagan was wrong to suggest Marshall deny cert on this, and the world would be a better place today if a Heller-esque decision had come about then. So, I count it as a mark against her, but with the understanding that the world is complex and this was a pretty minor infraction on her part.
smijer
@jl – ’87 came after ’76 on my calendar (??)
jl
@Martin: Or any person suspected or accused of terrorism, except when he or she wants to buy and own a gun?
mr. whipple
This is clear evidence she’ll move the court to the right as well as Obama is going to take your guns.
LittlePig
@b-psycho: No, that’s common sense. Unfortunately common sense loses out to hysteria and prudishness the vast majority of the time.
Legalize drugs, and the Mexican problems go away (how many bootleg cigarette dealers have been shooting it out on your block lately?). But that would offend the fainting couch set and the buy-a-police-captain-a-second-home crowd, so we can’t have that.
Citizen Alan
@smijer:
I’m gonna go out on a limb and assume you’re serious and not being satirical. Heller said that the government can’t ban guns completely. It certainly did not say that the government has no power to require licensing of gun owners, and based on the majority opinion in Heller, I doubt that petitioner would fare any better today.
kommrade reproductive vigor
Are you crazy?!? A scary femi-Nazi who isn’t sympathetic to claims a man can violate gun laws won’t rest until she’s chopped off all our wee-wees!
EconWatcher
Cacti, I suppose you can make a semi-plausible argument that the Second Amendment was not meant to protect an individual’s right to keep and bear arms. But the biggest names in constitutional scholarship–including liberals who don’t necessarily like the policy of widespread gun ownership–have concuded that it does protect individual ownership. Examples: Larry Tribe, Akhil Amar, and Sanford Levinson.
You’re way out of date in claiming that an individual right is some kind of crackpot theory or wingnut fancy. It’s the mainstream and predominant constitutional theory–as well as the law of the land after Heller.
The biggest problem with your counter theory is that “the people” wouldn’t really mean “the people” in the Second Amendment if it didn’t confer an individual right. And “the people” would mean something different in the Second and Fourth Amendments, which is untenable because they were ratified as part of a package.
So you’re entitled to your opinion. But don’t pretend that anyone who disagrees is a wingnut or misinformed. Ain’t so.
Midnight Marauder
@Martin:
You can pretty much apply these words as a description of the Republican Party on almost every single major issue of the day.
Energy issues: President Obama (and
an act of GodBP) took away offshore drilling. Now they just don’t know what the fuck to do.Financial regulation: Can’t ride the populist tiger without upsetting the Master of the Universe. Now they just don’t know what the fuck to do.
The increasing Latino population: No one on their side likes those brown skin fence jumpers, but damn if they don’t represent the future of politics in this country. Now they just don’t know what the fuck to do.
Lather, rinse, repeat.
@James Joyner:
@cleek:
That should clear things up for you, James.
Ash Can
@b-psycho: Don’t ask me, ask the inner-city cops what they think about completely unrestricted personal access to any and every kind of firearm and ammo. You can start with DC Southeast if you want, or maybe Englewood here in Chicago.
El Cid
@ThatLeftTurnInABQ:
June 2015: U.S. military commanders warn public that the situation in Mexico is not sustainable enough to withdraw troops quite yet. Questions about paying for the $40 trillion operation are postponed.
September 2019: U.S. military commanders and admired political leaders proclaim a ‘new military strategy’ in Mexico, and celebrate recent successes in ‘clearing and holding’ several cities in central and southeastern Mexico. At press conferences, uniformly military leaders and politicians vehemently deny any connection between the Mexican occupation and a 700% increase in drugs shipments and addictions in the U.S.
jl
@smijer: Yes, the law passed in 76, and Kagan was not troubled by it in 87, so she was not troubled by same law struck down by Heller. Seems to me that we agree on this point, right?
libarbarian
This issue is THIS:
Pro-gun people are, right or wrong, going to see this as another sign of their “pariah” status among liberals and that the liberals don’t really want judges to be “empathetic” to everyone but only to certain people/groups. Obama says he wants empathetic judges and liberals defend this on principle and yet, when it comes to a gun owner this judge displays nothing of the kind.
El Cid
Attitudes on gun ownership and public carrying will vary quite seriously when it appears that black people and Latinos being embracing this philosophy. (See Reagan and Black Panthers.)
SpotWeld
These are the same right wing nut jobs that were complaining before about how “empathy” was a bad thing?
taylormattd
@smijer: Jesus, how fucking stupid.
Yes, it’s a “mark against her” that she said she isn’t sympathetic to a guy who broke a gun law and asks for cert to the United States Supreme Court on an issue that had been settled for like 100 years.
libarbarian
@SpotWeld:
Yes, but they will also rightly point out that “You are the guys who were proclaiming that empathy is a GOOD thing”
The truth is that we don’t really know what she meant by “no sympathy” or why she had it, but that just allows people to read in to it what they want to read in to it.
Davis X. Machina
They’re still pikers. What you need is a second amendment like the one in Maine’s constitution:
Every citizen has a right to keep and bear arms and this right shall never be questioned …
None of that ‘well-regulated militia’ crap. And no wise-ass kids in high-school debate running gun control as an affirmative plan, either.
Martin
@El Cid: Wouldn’t that be a cool campaign – a PR campaign to encourage Arizona’s Latino population to only show their carry concealed permit if they get asked for proof of citizenship. Don’t have one? Go get one!
Tom
It’s not a big deal. Nothing the right has dug up on her has been a big deal. The fun part is watching them try and make a big deal out of it.
Gregory
@El Cid:
Fixed for probability.
burnspbesq
@smijer:
Fuck off, ya idjit. There is no Constitnutional right to self-defense. If a state wants to change its criminal law to eliminate sell-defense as a defense to any or all crimes, nothing in the Constitution stands in its way.
Midnight Marauder
@libarbarian:
No, I think we have a very clear idea of what she meant.
Granfalloon
In the hopes that the income tax will be declared unconstitutional in 2029, I’m going to stop paying them now. Let’s see how sympathetic Roberts’s law clerk will be to my plight.
Poopyman
I can has open thread so we can talk about Al Franken scoring again in the Senate?
Joseph Nobles
@Granfalloon: This.
@Poopyman: “Shares of Moody’s fell 0.5 percent after the Senate votes, and Standard & Poor’s parent, McGraw-Hill Cos, fell 1.6 percent.”
Looks like the market just did what Franken’s amendment would do – but it took Franken’s amendment to shake that out of the market.
bago
To quote the estimable “SayItWithWookies”:
licensed to kill time
I guess this means there won’t always be a space in her parking lot
when you need a little gun and sympathy
BenA
OT: But it seems to me the Republicans really screwed the pooch by not negotiating in good faith with the Dems in committee with the financial reform bill.
We’re getting a Fed audit, Franken’s Ratings Agency reform, etc.
It SEEMS like we’re going to get a stronger bill than a lot of people thought because there weren’t
anyas many backroom deals.mikeyes
In the first place being granted cert in SCOTUS is a very difficult process. Secondly, she was a law clerk to Justice Marshall. Her memo would have been accompanied by a lot of face to face talking and most likely was written after the fact. Her language was well understood by the person it was meant for even if a little ambigious to others.
According to right leaning students at Harvard, before she was dean she talked to the HLS gun club and was well received. Taking one sentence out of a private memo to a liberal judge is hardly proof positive of her possible tendency to take all of our guns away. To say otherwise is to make a foolish statement.
I am not anti-gun, in fact was nominated for the Outstanding Handgunner Award in 1983 (along with Ted Nugent), but it does little good to make broad statements like this with little proof.
Besides, elections have consequences, this is one.
Mark S.
@smijer:
I really doubt it. I’m not saying Heller was wrongly decided, but it was, shall we say, an innovation. I highly doubt there were five justices in 1987 who would have ruled that way.
bago
@jibeaux: Pathetic.
QDC
I think I dug up the opinion on Lexis.*
The case appears to be Sandidge v. U.S., 520 A.2d 1057 (D.C. Court App. 1987), cert. denied 484 U.S. 868 (1987).
The only facts stated are procedural. Defendant Sandidge was convicted of possessing an unlicensed handgun and ammunition. He was fined $150 and received a suspended jail sentence and 2 years probation.
On appeal he argued that the District of Columbia firearms statute was unconstitutional under the Second Amendment. This was the only basis for appeal. The court cited about 4 parallel appellate opinions holding otherwise and dismissed the appeal.
The best part, though, is a concurring opinion arguing that even if such a statute would be unconstitutional in one of the 50-states, it would not bar such a law in the District of Columbia. Reason being that the preamble to the amendment states that a well regulated militia is essential to “the security of a free State.” D.C., not being a state, would be immune from such considerations. That’s some oustanding originalism and close reading right there! Seriously, I love it.
Anyway, no one who knows how the Supreme Court operates would be shocked to find that this is one of the 99% of cases denied cert every year. It didn’t raise a novel legal question, nor did it involve any sort of split.
The work of the Clerks (the bad part of it, anyway) is to slog through the thousands of appeals every year in search of the handful of cases that merit a hearing. This one was not a close call.
*(I might be wrong, but it looks like the right time frame and no other obvious candidates. Not everyone is going to appeal a no-jail conviction to the Supreme Court.)
Steve
I’m pretty sure Thurgood Marshall knew whether he was interested in hearing a pure 2nd Amendment argument. People who actually think he might have been swayed one way or the other by a law clerk saying “I’m not sympathetic” are being very silly.
rumpole
@Joseph Nobles: “respecting” precedent doesn’t mean that you can’t overturn it. Her answer doesn’t say how she will vote. Stare decisis has exceptions, and sometimes you can just make them up (see eg, citizens u).
Granfalloon
In all seriousness, we need to take a close look at the background and content of this memo.
It is clear that this is a cert memo from a clerk to a Justice – meaning that it is a brief memorandum, written by a clerk, expressing a viewpoint on whether the Justice should vote in conference about whether to grant cert. Justices attend these conferences and, if memory serves, if 4 vote for cert then cert is granted and the Court hears the case.
This is important, because it sets the tone for this memo. This is not a Supreme Court written opinion with precedential value. This involves a matter that is neither Kagan’s decision nor even her opinion, in truth. Clerks plow through hundreds of petitions and distill them down for the Justice who has to vote on many of them at conference. Marshall needed to know something and needed it expressed quickly and clearly, so he could go about the other business of the Court. Marshall likely gave standing instructions to his clerks, like “don’t bother me with habeas petitions where the petitioner complains that no raisins on the salad bar at Leavenworth constitutes cruel and unusual punishment,” “don’t bother me with Republic of Texas trying to secede,” and most of all “don’t bother me with criminals trying to rob a convenience store who claim that gun control laws violate the 2d Amendment.”
The current meme ignores this, in the hopes of painting Kagan to be a gun-hating liberal. In truth, it is most likely the way that a good SCOTUS clerk works with her judge – giving him a clear, concise, direct summary of what was in the Cert petition. SHE knew that HE would like to know what was up, so that he would know how to vote. She and the co-clerks probably reviewed thousands of 2d Am. petitions during their tenure there, and she knew precisely what Marshall wanted to know, and gave it to him.
And read closely – and don’t miss the word “sole.” As in, “he’s got nothing more than a hackneyed constitutional challenge to a previously-tested law.” If it’s been done before, there’s no need to revisit, and hence she’s not impressed – and most importantly, not impressed to the point that it should sway Justice Marshall’s opinion with respect to how to vote at Cert conference.
Mark S.
@QDC:
Nice find! And that is some outstanding originalism in the concurring opinion. Robert Bork would be proud!
Tzal
UNLICENSED
Martin
@Granfalloon: You know who else “knew precisely what their boss wanted to know, and gave it to him”? Joseph Goebbels. I’m just sayin’
kid bitzer
” Reason being that the preamble to the amendment states that a well regulated militia is essential to “the security of a free State.””
jesus f’ing christ that is dumb.
of course, you can already tell that the writer is dumb when they refer to a “preamble” to an amendment. the second amendment has an adverbial clause. it does not have a “preamble”. this is just wing-nut mythology, trying to win an argument by inventing labels.
Granfalloon
@Martin. Not to mention J. Edgar Hoover’s chief of staff.
Wait – are we talking about frilly panties?
QDC
@Mark S.:
Thanks! The concurrence is short, so I’ll quote the whole thing. It really made my day.
Now, if I had a lifetime appointment on the Supreme Court, and wanted to use that status to torture gun rights types, I would have adopted the above position in Heller, and then–also on originalist grounds–declined to incorporate the 2nd amendment against the states (still an open question). Outflank them from the right! Jurisprudence as performance art.
Dungheap
To be a little fair, this is what happens with a nominee with little track record regarding her personal opinions on important constitutional questions – a single paragraph memorandum for an audience of one gets blow way out of proportion.
I’d like to see the entirety of the memorandum. Anyone know if has been posted anywheres?
mistersnrub
@ajr22: already beat you to the punch, broheim.
Gregory
@Dungheap:
Fixed. Remember the stupid “wise Latina” flap during the Sotomayor nomination, taken from one line from one speech?
smijer
@jl – 62 – yeah – I think I misread you before.
cat48
Meme is interesting today..finally got over GAY. I like the story below it Liu got out of the Judiciary Com today…..hope he can get out of the Senate. He looks like a fine candidate for the SC but he is only 40 & has already written alot. He needs to stop doing that for a while.
Also2 the prez got molested at a restaurant today: got called a “hottie with a smokin’ little boy.” Indeed…
I’m not sympathetic with an unlicensed gun either.
valdivia
@cat48:
our Prez was molested? has linky?
Dungheap
@Gregory:
Fair enough. If it weren’t this memorandum it would be something else equally inconsequential.
Joseph Nobles
If the case Kagan recommended a denial of cert was Sandidge, then I’d say that she was sympathetic to the argument of the Second Amendment being a collective right, not an individual right. Heller decided differently, and Stevens was part of the four-vote dissent on that opinion. If Stevens couldn’t get Kennedy, I doubt Kagan could.
So what this boils down to is the fight over the next nominee to the Court. Heller couldn’t be overturned (if indeed Kagan was sympathetic to doing so) without a brand new fifth vote replacing one of the Heller majority.
Calliope Jane
Reading the whole article — I like her more. Justice Marshall was having his clerks go through the petitions for cert and “channel” what they thought he would do / would like to do with those cases. Fascinating; he was really, in a sense, empowering his clerks to think beyond mere jurisdictional issues when thinking about whether or not to grant cert. He was teaching them to look at the effects of the case and to think about whether the Supreme Court could do some “good” in the area at issue (“good” being from J Marshall’s perspective, which is a perspective I agree with). Her one-paragraph memo (one paragraph! amazing!) seems to have amounted to “bad cases make bad law.” This man didn’t follow the law at the time and he was caught. Did the Supreme Court want to take up a case that looked at whether the 2nd Amendment supported individual gun rights? Was this particular case an appropriate one to address that issue (and overturn years? decades? of precedent)? The lower court was affirming current law; was there a split in the circuits that would justify hearing this case? And would J Marshall like the potential outcome, considering the makeup of the Court at the time, or is this one of those “defensive denials” (like I seem to remember J Stevens doing in the past few years because he didn’t trust the conservative coalition not to grant the president even greater authority)? Moreover, Justice Marshall was one of at least four other Justices to deny cert in this case; he wasn’t that all-powerful.
Listening to many former Supreme Court clerks (and a few Justices), it seems that a great deal of pressure is placed on clerks to recommend a denial of cert. One former clerk said it would be embarrassing (and was for one of Scalia’s or Thomas’s clerks, I forget which, when this clerk was there) to recommend granting cert and then find out later there was a jurisdictional issue that barred the Court from hearing the case in the first place. With that in mind, most clerks recommend “no.” The thing we’re losing with Justice Stevens (and this comment is probably too long and too much in the weeds already, so I apologize) is that he required all of his clerks to read all of the petitions for cert. All the other justices combine their clerks into a pool and they divide the reading (the pool concept seems to have encouraged the “just say no” tendencies). Justice Stevens’s clerks had to divide the petitions among themselves — and, no doubt, make personal recommendations. I don’t know what Justice Sotomayor is having her clerks do. I certainly hope that a Justice Kagan would not include her clerks into the pool — or that some Justice — Ginsburg? Breyer? — would pull their clerks out of the pool. These are supposed to be bright individuals; I always thought it was a little whiny of the clerks to pity J Stevens’s clerks for having “so much reading” to do. You’re clerking for a Supreme Court Justice; if you don’t want to work incredibly hard, don’t do it. Plenty of people want to take your place. And considering all the perks that come with clerking, for crying out loud stop whining about it.
BlueMan
Won’t be a problem, because the Republicans always say we should enforce the gun laws that are on the books before we need any new ones.
jl
Never mind about this gun stuff. That was yesterday’s wingnut crusade.
GOP has decided that European and IMF bailout of Greece should proceed without any help or contribution of any kind the US, even if that means, apparently that the US should boycott the IMF, or not pay its dues, or something.
Is Greece the new France? Or the new AIG?
Ezra Klein, WaPo
May 13, 2010
http://voices.washingtonpost.com/ezra-klein/2010/05/is_greece_the_new_france_or_th.html
I guess the GOP doesn’t need the Greek vote either.
found this via Krugman blog, but for once Krugman’s reasoning and metaphors are so strained, it is Tom Friedmanesque, so no link
bemused
Often I think about the many millions/billions of dollars spent & the energy exerted by hordes of conservatives working 24/7 over decades to wipe out any semblance of democracy in this country that could have been used to make this a decent place for us all to live in. Then I have to go out for a walk in the woods where things make sense.
Randy P
@valdivia:
http://voices.washingtonpost.com/44/2010/05/citizen-to-obama-youre-a-hotti.html?wprss=44
Halp, halp, I’m being oppressed!
Culture of Truth
NO SYMPATHY!!!!!!!!!
cat48
@valdivia: Exaggeration on my part :) I haven’t learned how to link but it is on the Memorandum.com or The Hill/probably a lot more places now. Sorry for delay replying…..cooking. Unfortunately I don’t think they have video.
Poopyman
@Randy P:
Byline of Michael D. Shear? Dunno who he is. That article has Dana Milbank’s fingerprints all over it.
licensed to kill time
@Randy P:
Well, I’m glad you cleared that up because what cat48 said kinda worried me:
Linda Featheringill
Yes, I know that this is off topic but . . . .
A blizzard of calculations [about the amount of oil flowing out] emerging from newly released video of main oil leak
http://tinyurl.com/3622sjk
That came from Skytruth but the link will take you to a discussion on DailyKos.
What I found interesting is that the calculations reported to DK, taken from the video of the gusher, are closer to the estimates of Skytruth, taken from satellite photos, than they are to the official estimate of 5000 barrels/day.
Meanwhile, back in the Dead Sea of the South . . . .
valdivia
@cat48:
@Randy P:
thank you guys made my day.
cleek
i’m a little sad you didn’t title this one “Sympathy For The Dickhead” or “…Dillweed” or “…Dimwit”, or something like that.
cat48
@licensed to kill time: Sorry, missed the “d”. Have to start editing.
Eric
What don’t you understand?
Sympathy = America/freedom
Empathy = Socialism/Muslims
It’s easy!
QDC
@Joseph Nobles:
I’d argue the real underlying issue for gun rights advocates is whether the 2nd amendment right identified in Heller applies against the states. I believe that this issue was explicitly reserved in the Heller opinion.
Applying Bill of Rights protections against the states is a rather activist thing to do, in the sense of requiring judicial creativity We are used to it for most of the bill of rights protections, but adding another incorporated right would be novel, and whether Kennedy will be on board is anybody’s guess. Kagan might persuade him not to join such an opn(though I’m skeptical of the whole persuasion thing).
If the 2nd amendment doesn’t apply against the states, then it only limits federal gun restrictions, and stiff laws like in NYC would remain untouched. It would only be the weird status of DC that controlled the outcome and Heller would mean a little, but not a lot.
Holding that the 2nd amendment applies against the states would be an act of non-federalist judicial activism of an even higher order than Heller. Kennedy has a hard-on for state sovereign immunity, which isn’t directly related, but it’s not exactly compatible with enforcing federal limits on the states when it’s avoidable. He’d certainly be the justice most likely to decide that this was a bridge too far.
licensed to kill time
@cat48: No worries, figured that was the case. There’s just so many possibilities with that sentence, though ;-)
Cacti
It should be mentioned that it takes only 4 out of 9 Justices to grant Cert. And in 1987, there weren’t even 4 Justices sitting on SCOTUS who found this case worthy of a hearing.
valdivia
Sulli is off the deep end again with Kagan. What an idiot.
Granfalloon
Here’s something to chew on.
Some might recall that William Rehnquist, poster boy for “conservative” jurisprudence, was a law clerk for Justice Jackson, who, it turned out, origianlly voted against desegregation in Brown v. Board of Education and only changed his mind (as recounted in the private papers of Justice Douglas et al.) after much persuasion by the liberal wing of the Court. From Rehnquist’s research memo to Jackson:
This actually came up in his confirmation hearing. Rehnquist defended himself by saying “this was Justice Jackson’s view, not mine, and I was simply articulating my boss’s view,” or words to that effect (Jackson’s chief of staff called this a smear by Rehnquist, incidentally).
In a later personal memo to Jackson, Rehnquist wrote:
Where is the outrage about this?
Sly
@Joseph Nobles:
Except that Heller didn’t incorporate the second amendment, because it pertained to laws in D.C. and D.C. is not a state. Kagan’s statement is really irrelevant in this respect. She’s basically stating that she’ll treat Heller as precedent if Guam decides to enact tough gun laws, because that would be one of the few other places that Heller applies.
Gun Rights groups are basically hoping that the court will be more open to hearing a challenge to state gun regulations because they heard Heller and decided the way they did. But the court stated rather plainly, in the Heller majority opinion:
It wasn’t even relevant to the fucking case and the Court explicitly stated that a 100+ year precedent concerning state gun laws was still binding.
Elie
@valdivia:
Agree totally! What a hoot!
Its true — He IS a hottie with a smokin little body…
Joseph Nobles
@QDC: Thanks for that.
I don’t see how the Court can avoid incorporating an individual right guaranteed in its very own constitutional amendment.
Honus
@smijer: It coulda been Heller 20 years earlier, and it would have been decided differently. Heller’s legal reasoning is a joke. The second amendment has absolutely no reference to “self-defense” but that’s what those “original intent” hypocrites (I’m looking at you Scalia) hung their hat on.
Sly
@Joseph Nobles:
Hugo Black said the same thing, arguing that the 14th Amendment incorporates the Bill of Rights based on framer’s intent. But other members of the court generally disagreed with that approach. So what we’ve had for the better part of a century has been selective incorporation, where the court has essentially incorporated certain amendments, or parts thereof, based on competing notions of how far judicial restraint actually goes.
It’s seems completely weird, but makes sense when you account for the fact that the court changes over time and different justices have had different opinions on how things should be decided.
One of the greatest ironies of the court, incidentally, is that the justices who encapsulated both ends of the incorporation spectrum, Rutledge and Frankfurter, were appointed by the same President (FDR). Frankfurter was all about judicial restraint and giving the states a pretty wide berth when it came to what was and was not acceptable under the constitution, while Rutledge (as well as Murphy and Douglas, who were also appointed by FDR) believed that the 14th Amendment incorporated rights that weren’t even explicit.
ChrisB
@PaulW: Kagan wears shoes with laces? How butch!
Nancy Irving
Republicans should be glad that Kagan is devoid of empathy. Wasn’t empathy what they didn’t like about Sotomayor?