President Obama Nominates Solicitor General Elena Kagan to Supreme Court

[rushmc 23]

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I absolutely think that article makes up part of her body of work, and it should generate of a decent number of questions.

One quote to show her thoughts on governmental intent:

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She defined improper intent as prohibiting or restricting speech merely because Congress or a public majority dislikes either the message or the messenger, or because the message or messenger may be harmful to elected officials or their political priorities.

That's pretty broad, which is what I'd like the limits on the government's power to be. I'd expect definitions of harmful speech to be pretty narrow (which they are now).

And, remember, that her job description as a faculty member was to explore the boundaries of legal thought. Her job description as a justice would be to interpret the Constitution in cases where there is still doubt after all previous appeals: i.e. where there really isn't a clear path.

When former district attorneys become defense lawyers and vice versa, they are able to fulfill their new jobs even though the description has changed radically.

Wendy P.

I havent seen anything really that alarming (Not sure what the hell Dan G is talking about)

The only thing I wounder about in this is that definition of harm. What some consider to be harmful others may not. If as you say, that definition remains very narrow then there really is no issue
Good reading though

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[NewGuy2005 53]

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Do the R's want a fillibuster? They would show their pathetic side to the max if they do. I almost hope they do.

Of course you do.

[NewGuy2005 53]

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I know very little about the SCOTUS candidacy. The fact that she hasn't actually been a judge raises a big red flag with me. Am I the only one that thinks that a Supreme Court judge should have at least a little time on the bench? Or is the Supreme Court so much different than regular courts that it doesn't really matter?

Rehnquist had no bench experience either. Yet Nixon appointed him and Reagan raised him to Chief.

There have been many Justices that have never served on the bench. "Requiring" it has been a fairly recent phenomenon, if I am not mistaken.

[DanG 1]

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Not sure what the hell Dan G is talking about

I'm talking about the comments posted on the cns site below the article you linked. They are mostly fine examples of people bleating out what they've been told to think.

- Dan G

[kallend 2,184]

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I know very little about the SCOTUS candidacy. The fact that she hasn't actually been a judge raises a big red flag with me. Am I the only one that thinks that a Supreme Court judge should have at least a little time on the bench? Or is the Supreme Court so much different than regular courts that it doesn't really matter?

Rehnquist had no bench experience either. Yet Nixon appointed him and Reagan raised him to Chief.

There have been many Justices that have never served on the bench. "Requiring" it has been a fairly recent phenomenon, if I am not mistaken.

It's just one more of those GOP double standard issues.

...

The only sure way to survive a canopy collision is not to have one.

[rushmc 23]

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Not sure what the hell Dan G is talking about

I'm talking about the comments posted on the cns site below the article you linked. They are mostly fine examples of people bleating out what they've been told to think.

I dont read the comments on any site
Just the ones here

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[lawrocket 3]

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>in the end, who can really decide when someones speech is harmful?

A court. Some examples:

Yelling "FIRE!" in a crowded theater.

Going to the press and announcing that an opponent politician raped your teenage daughter, when that accusation has absolutely no basis in fact.

Telling a cop "someone just shot at me and then ran into that building with a bomb!" when that did not happen.

All those will either cause harm or have a high probability of causing harm.

The issue is not about penalizing harmful language. It is about prior restraints of speech.

"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable" (Texas v. Johnson (1989) 491 U.S. 397, 414)

Prior restraints of speech are particularly nasty because they do not merely place a burden on the speaker's ability to communicate a message; rather they erase that message before its effects can be assessed. "All those will either cause harm or have a high probability of causing harm." Let them speak and assess the effect and make the person fix the damage.


Think of the efforts in the 1900's in the US to stamp out expression of communist speech because of the potential for harm and the damage it could cause. Thankfully, eventually the courts stomped these restrictions out. A government that dictates what its citizens may or may not say leads to a government that tells its citizens what they may or may not think.

Speech causes harm? to whom? Potential harm? To whom? What is injurious to me may be empowering to another.

Banning on the basis of "harm to society" is what happened during the HUAC era. The McCarthy Era. People were imprisoned.

And we wish to repeat that?

My wife is hotter than your wife.

[billvon 3,133]

>And we wish to repeat that?

Not at all. The government may not express its disfavor with an opinion or speaker by burdening them with restrictions or prohibitions, unless it can show that their speech is causing some type of public harm. (Not might cause, IS causing.) Telling people to fight for your rights, or to throw bricks through the windows of local politicians offices, or even to overthrow the government, may cause harm, but does not immediately cause harm. Yelling "FIRE!" when there is no fire in a theater DOES cause immediate harm, and thus such action can be outlawed.

[idrankwhat 0]

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I know very little about the SCOTUS candidacy. The fact that she hasn't actually been a judge raises a big red flag with me. Am I the only one that thinks that a Supreme Court judge should have at least a little time on the bench? Or is the Supreme Court so much different than regular courts that it doesn't really matter?

Rehnquist had no bench experience either. Yet Nixon appointed him and Reagan raised him to Chief.

There have been many Justices that have never served on the bench. "Requiring" it has been a fairly recent phenomenon, if I am not mistaken.

NPR had a good piece on this yesterday.



http://www.npr.org/templates/story/story.php?storyId=126764692

Supreme Court nominee Elena Kagan's lack of judicial experience is front and center as an issue as she starts meeting with senators Wednesday.

Historically, judicial experience has not been deemed a major qualification for service on the U.S. Supreme Court, but Republicans have been highlighting Kagan's lack of it this week.

U.S. Senate Republican Leader Mitch McConnell, in a floor speech, declared: "The American people instinctively know that a lifetime position on the Supreme Court does not lend itself to on-the-job training."

Texas Republican Sen. John Cornyn, in a statement, said Kagan had spent her "entire professional career in Harvard Square, [Chicago's] Hyde Park and the D.C. Beltway."

"We have someone who has obviously a stellar academic background, but someone with no real-world experience and someone with no judicial experience," Cornyn said.

Judicial Experience

The current Supreme Court is composed of men and women who all served previously on the lower federal appeals courts. But in historical terms, this is the first time the court has had such a uniform professional pedigree.

"The court that decided Brown v. Board of Education in 1954 did not have a single justice who had been a judge," noted Walter Dellinger, a constitutional law professor and Supreme Court advocate. "It had three former attorneys general, three former U.S. senators, a former governor of California [and] an early chairman of the Securities and Exchange Commission."

In fact, as Dellinger observes, of the 111 justices who have served, 40 had no prior judicial experience.

"The ranks of those who have not been judges before include some of our most illustrious Supreme Court justices," he said. "I think, in fact, if you compare the justices who have not been judges, they stand out as a more distinguished group in their work on the Supreme Court than those who had previously been judges."

'Narrow Technical Skills'

Certainly, the list includes many of the most important justices, some conservative, some liberal. Among them, Chief Justice John Marshall, widely credited with establishing the judiciary as a genuinely co-equal branch of government; Chief Justice Earl Warren, who led the court in a period of expanding individual and civil rights; Chief Justice William Rehnquist, who led the court in reversing that direction; Justice Joseph Story, considered, along with Justice Marshall, to be one of the formative figures in early American jurisprudence; Justice Robert Jackson, a former attorney general whose Supreme Court opinions on the limits of executive power are routinely cited at Supreme Court confirmation hearings by the nominees and the senators; and Justices Louis Brandeis and Felix Frankfurter, to name just two more.

So why are the big names in American jurisprudence so often people who came to the court with no prior judicial experience?

"People who have been judges for a long time develop very narrow technical skills, which are quite suitable for lower court positions," Dellinger said. "But cases come to the Supreme Court precisely because there is no clear legal answer, and justices have to use judgment and all the tools of a Supreme Court justice to come up with a sense of the history and structure of the Constitution and what makes a workable legal rule."

That, at least, is a good theory. But one of the reasons presidents in the past 25 years have sought out lower court judges for promotion to the Supreme Court is that by looking at a lower court record, a president, or a senator for that matter, can get a reasonably good idea of what a nominee's views are. It is a lot harder to make that kind of a determination for someone who has never been a judge.

[NewGuy2005 53]

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I know very little about the SCOTUS candidacy. The fact that she hasn't actually been a judge raises a big red flag with me. Am I the only one that thinks that a Supreme Court judge should have at least a little time on the bench? Or is the Supreme Court so much different than regular courts that it doesn't really matter?

Rehnquist had no bench experience either. Yet Nixon appointed him and Reagan raised him to Chief.

There have been many Justices that have never served on the bench. "Requiring" it has been a fairly recent phenomenon, if I am not mistaken.

It's just one more of those GOP double standard issues.

Yeah, but you guys are worse!!

[rushmc 23]

More on Kagan


http://www.bloomberg.com/apps/news?pid=20601087&sid=aPI35t8uR6Gs

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[lawrocket 3]

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>And we wish to repeat that?

Not at all. The government may not express its disfavor with an opinion or speaker by burdening them with restrictions or prohibitions, unless it can show that their speech is causing some type of public harm. (Not might cause, IS causing.) Telling people to fight for your rights, or to throw bricks through the windows of local politicians offices, or even to overthrow the government, may cause harm, but does not immediately cause harm. Yelling "FIRE!" when there is no fire in a theater DOES cause immediate harm, and thus such action can be outlawed.

I highlighted the important point here - falsehood. Falsehoods are not protected speech. For example, fraud, liable, slander, etc. There are laws against them. Interestingly, many of these retraints do not carry criminal sanction. Rather, they often create a cause of action in civil courts. Still, criminal sanctions are available. Indeed, falsehoods can be regulated in things like commercial speech (FCC standards, false advertising, etc.)

The issue that I refer to is quite narrow. Should speech that could cause harm (for example, that speech propounded by communists) be banned?

It comes down to "who will decide what speech is permissible?" Many people think that hate speech should be banned because of the prospective harm. "People may retaliate violently against it." This, of course, creates a bit of a problem - assault, battery, vandalism, etc. are also banned. So because the law doesn't work that bans people from this, we've got to ban perhaps causing it.

Back on point - should facts be banned if the fact would be the sort to put people at risk? What about, say, opinions considered "dangerous?" Plenty of people discuss that militias are dangerous, etc. How about those?

Somebody will have to decide what is "dangerous." Frankly, I don't want that.

Falsehoods can already be banned. libel and slander can be banned. And every politician could therefore be imprisoned. Hmmm. Come to think of it...

My wife is hotter than your wife.