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Senate Confirms Elena Kagan's Appointment To SCOTUS 618

eldavojohn writes "As expected, by a vote of 63 to 37 Elena Kagan has been appointed as the 112th member of the Supreme Court of the United States. Kagan, only 50 years old, has no judicial experience. The Washington Post explains: 'Other justices have corporate law backgrounds or a long record of arguing before the court. Kagan worked briefly for a law firm and argued her first case before an appellate court 11 months ago. It happened to be before the Supreme Court, the first of six cases she argued as the nation's first female solicitor general.' Her fair use views and free speech views have made her a focus of Slashdot recently."
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Senate Confirms Elena Kagan's Appointment To SCOTUS

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  • lulz (Score:5, Insightful)

    by Pojut ( 1027544 ) on Friday August 06, 2010 @12:49PM (#33163876) Homepage

    I found it hilarious how pissed people were that she gave textbook answers during her hearings while simultaneously complaining that she would judge based on her opinions.

    Aren't textbook answers the opposite of opinions?

    PS: An activist judge is a judge who makes a ruling that you disagree with.

    • Re:lulz (Score:4, Insightful)

      by interkin3tic ( 1469267 ) on Friday August 06, 2010 @12:58PM (#33164084)

      PS: An activist judge is a judge who makes a ruling that you disagree with.

      Exactly. Makes you wonder about the sanity of politicians and pundits who, upon hearing that one of the three branches of government does something they don't like, their inclination is to neuter that whole branch of the government. Not only that, but many of the same people were happy to see executive powers expanded when their guy was in office, apparently not thinking about the day when someone they -didn't- like inherited those powers.

  • by ShadowRangerRIT ( 1301549 ) on Friday August 06, 2010 @12:53PM (#33163958)
    It's only recently that it became a major concern, largely because they use it as a proxy for competence to try and fend off ideological attacks. According to Media Matters, out of 111 Supreme Court Justices, 40 of them had no prior judicial experience. Hell, Rehnquist and Warren (relatively recent Chief Justices) had no prior judicial experience, and Rehnquist only died a couple years back. Personally, I'd be happy with a few more non-judges (ideally a couple non-lawyers) on the Court (not a majority, but two or three), just to provide a touch of humanity. Sometimes, the law isn't clear, and the Constitution almost never is, and having people who are inclined to sympathize with people rather than arcane precedents is a good thing. Yeah, it's not calling balls and strikes, but then, if you really believe any Supreme Court Justice is able to do that, you're delusional.
    • by Darkness404 ( 1287218 ) on Friday August 06, 2010 @01:01PM (#33164152)

      and the Constitution almost never is,

      What are you talking about? The Constitution of the US is -very- clear if you don't try to view it in tinted glasses of various political affiliations. The founders didn't just write a constitution and nothing else, they all wrote lots of books, lots of papers. If there was one document that was written in the 1700s that is the clearest, it would have to be the constitution. What is so unclear about the constitution?

      • Re: (Score:3, Insightful)

        by GooberToo ( 74388 )

        I couldn't agree more!

        All too often we have reams of context in which we can place these well written documents. All too often interpretation is not required in the least. All too often, interpretation, and a poor one, if not flat out wrong, is what we get.

        The US Constitution is one of the easiest to comprehend legal documents around. It was purposely made so. When judges can't understand the US Constitution or don't know where they should refer about ambiguity, its their way of saying they are unfit to sit

      • by DragonWriter ( 970822 ) on Friday August 06, 2010 @01:17PM (#33164422)

        The Constitution of the US is -very- clear if you don't try to view it in tinted glasses of various political affiliations.

        Actually, its clear only when you try to do that, because then the tint you choose to use resolves all the inherent ambiguities and conflicts for you -- in the favor of whatever ideological tint you've selected.

        The founders didn't just write a constitution and nothing else, they all wrote lots of books, lots of papers.

        Yes, and in some of those books and papers, some of them write about how they were deliberately vague in writing some provisions of the Constitution, in order to let some aspects be resolved by experience because of the inability to come to a consensus on resolution on some points. Because, believe it or not, the political elites of the United States were no more united and homogenous in their ideology of government in the late 18th Century than they are in the early 21st; they were more able to work together, perhaps, but largely because they were more keenly aware of the potential consequences if they failed to do so.

        • Re: (Score:3, Interesting)

          Show me an example of constantly unresolved point of the constitution.

          Yes, some of it was deliberately vague, but the majority of the time its very specific. For example, how the hell do you take the ninth amendment along with the fourteenth and suddenly create another right, the right to an abortion? If you read both of those amendments, the same logic used to create a right to an abortion can be used to overrule just about every single state law.

          The problem is, people take the specific parts of
          • by DrgnDancer ( 137700 ) on Friday August 06, 2010 @02:46PM (#33166072) Homepage

            "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

            It seems to be a popular one. It seems that some people believe it indicates an inborn right amongst all people to posses any weapon (up to and including tanks) that they can afford. Other seem to believe that it implies a right to be armed, but not necessarily a right to any weapon one might chose to own. Still others seem to think it is an abridgeable right, and those guilty of certain types of crimes forfeit it. Others still believe that it implies nothing at all for those who don't happen to be in a "well regulated Militia". I'm not going to go into what I think, but the fact remains that the amendment itself is awful damned vague and a reasonable argument can be made for any of the above. There are other examples, but that's definitely the one that jumps to my mind when people ask about "vague" pieces of the Constitution.

          • Re: (Score:3, Informative)

            Show me an example of constantly unresolved point of the constitution.

            Slavery. The authors could not come to a consensus about how to define it or even describe the industry. Once everybody realized that everyone else had different opinions, they stopped trying. The distinction between citizens and property was intentionally not discussed in the Constitution, partly to allow the States to make their own independent conclusions, but primarily so that the Legislative branch of Government could address future aspects of the issue as they arose. Slavery was simply to divisive

      • by sexconker ( 1179573 ) on Friday August 06, 2010 @01:23PM (#33164520)

        What is so unclear about the constitution?

        The degree to which we'll (continue to) allow the government to shit on it?

      • by wowbagger ( 69688 ) on Friday August 06, 2010 @01:24PM (#33164552) Homepage Journal

        "What is so unclear about the constitution?"

        How to get around the bits that prevent the government from doing whatever it is I want it to do, in spite of those pesky "rights of the people".

      • Re: (Score:3, Interesting)

        by AndersOSU ( 873247 )


        The constitution is deliberately ambiguous on a number of extremely important points, because like all other political things the constitutional congress passed the buck on the hard issues of the day.

        Do you really think that the commerce clause and the necessary and proper clause are clear? Because if you do you'd be the only one.

        Does the second amendment guarantee a individual or collective right to keep and bear arms?
        Does the constitution grant a right to privacy? What about anonymity?
        Can a stat

        • by Darkness404 ( 1287218 ) on Friday August 06, 2010 @02:16PM (#33165510)

          Do you really think that the commerce clause and the necessary and proper clause are clear? Because if you do you'd be the only one.

          They are both rather broad powers that gives Congress a central power to pass laws in accordance to the constitution. It basically does as it says, lets Congress regulate trade and let congress pass laws needed at the time in accordance to the constitution.

          Does the second amendment guarantee a individual or collective right to keep and bear arms?

          An individual right, as shown in various quotes from people who lead our country in the 1700s.

          "No Free man shall ever be debarred the use of arms."

          Thomas Jefferson, note man, singular.

          And there are a lot more from almost every person there. None of them said anything to deny each (free) person the right to bear arms.

          Does the constitution grant a right to privacy? What about anonymity?

          The Constitution provides several limits on the government's power collectively they form a right to privacy. There is no listed "right" of anonymity, but when the rest of the constitution is preserved, the ability to be anonymous is also preserved.

          Can a state secede from the union? (I think this was a pretty big deal a while ago)

          Do they have the constitutional authority to do so? I think so. Do they have a practical right to do it, not after the civil war.

          Then there's the minutia. What exactly is a "naturally born citizen?"

          Someone born in the US or to people of US decent.

          On which side of the cruel and unusual line does prison overcrowding fall?

          Now that is something the supreme court actually should interpret because that is one of the few passes intentionally left vague for interpretation throughout history.

          Does full faith and credit mean that Utah has to recognize gay couples married in California?

          I think when it comes to the marriage issue we have to step back and really wonder why the hell the state is defining our relationships in the first place. And then determine that question later :P

      • Re: (Score:3, Interesting)

        by GlassHeart ( 579618 )

        What is so unclear about the constitution?

        How it applies to problems that the founders never even could have imagined. For example, their concept of privacy is largely physical, where "unreasonable searches and seizures" applies to physical property in your home. How does that Right apply on the Internet, for example? Would you like to post some of the "lots of books" they wrote on this issue? What are their views on human cloning? Stem cell research? Hell, organ transplantation and test tube babies? What d

        • Re: (Score:3, Interesting)

          Funny example my US History teacher loved to give: The Constitution gave the Government the power to maintain and Army and a Navy. The Constitution made no mention of an Air Force...

          The US Constitution is pretty well regarded as being remarkably well thought out. Personally I admire its brevity and simplicity. Its genius is that it was written with the understanding that it could not provide solutions or guidelines for all issues that might arise in the future, but instead set up a system of Governmen

      • by Grond ( 15515 ) on Friday August 06, 2010 @01:40PM (#33164830) Homepage

        What is so unclear about the constitution?

        Here are two examples, just to get you started. "The Congress shall have Power...To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" but yet "Congress shall make no law...abridging the freedom of speech, or of the press."

        So which one trumps? Can Congress make a law abridging the freedom of speech or of the press in order to grant an author the exclusive right to his or her writings? And, hey, what about visual artists? They don't write anything, so do they get copyright protection or not? Or composers? And what about laws that only incidentally affect the press, like taxes on ink or printing equipment? What about a general sales tax that happens to affect ink?

        Not so clear, is it?

        Or how about this one "The Congress shall have Power...To regulate Commerce...among the several States?" What does that mean? Does it apply only to things like interstate taxes? What about the infrastructure of commerce like interstate roads? What about products sold across state lines? What if the seller doesn't ship it across state lines but the buyer brings it across? What if one state subsidizes the heck out of a product, leading to competition problems with the neighboring state? What about products that are illegal but sold across state lines, like drugs? What if the product is being given away, like open source software, is that still commerce?

        So you can see that the Constitution is not very clear at all on a lot of points. Sometimes it's because parts of the document are in tension with other parts. Other times it's because the words are just plain vague. Scholars, politicians, and judges have spent centuries trying to figure out the best way to balance those tensions and interpret those vague words.

      • by jayme0227 ( 1558821 ) on Friday August 06, 2010 @01:55PM (#33165128) Journal

        If the Constitution is so clear, we'd only ever have unanimous decisions. Even the very first court under John Jay had at split decisions, indicating that less than 5 years after the constitution was completed, there were already disagreements on how it should be interpreted.

        The document was written 200+ years ago, before many modern issues could have hoped to crop up. Photography, cinematography, automobiles, airplanes, rocket ships, computers, the internet, medicine, civil rights, economics, weaponry, physics, chemistry, & even mathematics have all advanced significantly since the inception of the constitution. Many of the advances in these areas were completely out of the realm of comprehension in 1787. Even if they were possessed with great foresight, how could the framers have possibly anticipated copyright issues with movies or music, the possibility that health care could ever cost someone more than many people make in a lifetime, or the ramifications of corporate personhood? The fact is they couldn't, and because of that, there are areas in which the constitution is very *unclear*.

    • Re: (Score:3, Insightful)

      ....the law isn't clear, and the Constitution almost never is...

      Congress shall make no law... [cornell.edu]

      That's pretty fucking clear to me.
      • by AndersOSU ( 873247 ) on Friday August 06, 2010 @02:33PM (#33165828)


        Can congress give money to a religiously run school?
        Can you have public prayer in public schools? How about moments of silence for religious reflection?
        Can a public school teach creationism?
        Is congress allowed to authorize the placement of a christian cross on public land? If they do, do they have to authorize the placement of a summum pyramid?

        (free exercise)
        Can congress mandate that women aren't allowed to wear face-coverings in government jobs generally? What about jobs that require interaction with the public? What about jobs involving the use of heavy machinery? What about soldiers?

        Can congress force journalists to reveal their sources in testimony?
        Can congress forbit the publication of details sensitive to national security? Troop movements?

        Can congress mandate that your demonstration requires a permit?
        Can they give permits to some groups but not others?
        What kind of fee can be charged for a permit?
        How close to private property can I assemble?
        Can I obstruct through traffic? For how long?

        (speech - my favorite)
        Can congress ban dangerous speech?
        Libelous speech?
        Obscene speech?
        Fraudulent speech?
        Deceptive commercial speech?
        Corporate political speech?
        The speech of members of the armed services?
        Speech carried over public airwaves?
        Speech in public schools?
        Is wearing a black armband speech? What about carrying a poster?
        Does the right of free speech extend to public areas of privately property?

  • So that's why! (Score:5, Insightful)

    by AnonymousClown ( 1788472 ) on Friday August 06, 2010 @12:54PM (#33163974)

    Other justices have corporate law backgrounds...

    That explains a lot.

  • by dkleinsc ( 563838 ) on Friday August 06, 2010 @12:57PM (#33164060) Homepage

    Waiting for her to hear a few cases so we can see what she really thinks.

    The problem is that nowadays presidents aim to nominate people with as little documentation of what they really think as they can get away with. Then we go through Senate confirmation hearings which are largely a chance for the membership of the Senate Judiciary Committee to play for the cameras while the potential justice avoids answering any questions.

  • I read (Score:5, Funny)

    by kikito ( 971480 ) on Friday August 06, 2010 @01:07PM (#33164248) Homepage



  • by blair1q ( 305137 ) on Friday August 06, 2010 @01:25PM (#33164562) Journal

    Seriously. This story is way off-topic and it's showing up here almost 24 hours after the fact.

    Slashdot's article-selection system has been getting more and more stupid as time goes on.

    We need a little constitutional reform.

  • But... (Score:4, Funny)

    by rgviza ( 1303161 ) on Friday August 06, 2010 @01:26PM (#33164580)

    She has almost no court experience, but she _did_ stay at a Holiday Inn Express last night.

  • by Doc Ruby ( 173196 ) on Friday August 06, 2010 @01:27PM (#33164598) Homepage Journal

    36 Republicans and one Democrat tried to block Kagan's appointment. The Democrat is Ben Nelson (D-NE), who represents the (Omaha) insurance industry (which also is the Credit Default Swap industry) and routinely votes with Republicans, especially in filibusters that prevent a simple majority vote that would usually pass.

    You can see each of the Republicans give their reasons [huffingtonpost.com] for voting against Kagan's appointment to the Supreme Court, and judge for yourself whether those are either the real reasons, or good ones.

Marvelous! The super-user's going to boot me! What a finely tuned response to the situation!