Imagine a candidate for the U.S. Senate who has never taken a public stand on almost any policy issue. Imagine that her campaign consists of asking people for their support because, according to friends and colleagues, the candidate is smart, fair, and good to others. When her friends are asked what her views are on various political matters, they reply that they don't know—but that they're confident she'd make an excellent senator. This bizarre hypothetical closely resembles the actual campaign to put Elena Kagan on the Supreme Court.
Tom Goldstein is a partner at Akin Gump Strauss Hauer & Feld, and lecturer at Stanford and Harvard Law Schools. He is the founder of SCOTUSblog. A version of this piece was originally posted there on February 23, 2010. When Justice Stevens retires, what happens then? There will be a pretty efficient process. The White House will receive significant pressure from both the right and left, all of which it will basically ignore. Conservatives will want to use the Court as a rallying point for their base for the 2010 midterm elections and beyond.
This piece is from our archives: It was published on May 20, 2009. In March, 2008, Martha Nussbaum, a law professor at the University of Chicago, traveled with Judge Diane Wood to a conference in India. The topic was affirmative action in higher education, and before the conference began, they went to Kolkata to meet women leaders who were gathered to talk about how women should claim their legal rights. "Diane borrowed half of my Indian wardrobe and came in like an Indian woman," Nussbaum recalls.
Politico notes that two of the people whose names are being tossed around as Supreme Court possibilities are lesbians: Kathleen Sullivan and Pam Karlan, both of Stanford Law School. (For more about Karlan, see this impassioned endorsement from Bill Stuntz, who has written some terrific pieces for TNR over the years.) Obviously, putting a lesbian on the court (or a gay man, for that matter, although none appear to be under consideration) would mark a wonderful step forward for the country.
In a major setback for gay marriage advocates, California voters passed Proposition 8 last Tuesday. And since then, TNR's managing editor Richard Just and TNR's legal affairs editor Jeffrey Rosen have been debating the appropriate lessons to draw from the defeat. Read Rosen's opening argument here and Just's first reply here. Dear Richard, Many thanks for your thoughtful response. But just to be clear: I’m not arguing that judges should crudely follow the polls, or that courts are supposed to do nothing more than predict and ratify public opinion.
Supporters and opponents of campaign finance reform agree on little except for this: the compromise that the Supreme Court imposed on the nation 24 years ago in Buckley v. Valeo has collapsed. In Buckley, the Court held that Congress could regulate political contributions--that is, the money people donate to candidates--but not political expenditures--that is, the money candidates spend on themselves. The theory was that giving money to a candidate is not really a form of expression, while spending money to win an election is.
Poor Justice O'Connor! For the past three years, she's struggled ineffectually to split the difference between four liberal Justices, who think that the Constitution doesn't prevent the states from drawing voting districts on the basis of race, and four conservative Justices, who think it does. But last week, in striking down majority black congressional districts in Texas and North Carolina, she found an ingenious solution to her dilemma.