In Washington, D.C.
Though the Senate and the Judiciary are co-equal branches of the government, how will these two events affect the President Obama's administration?
By Yussuf J. SimmondsSentinel Managing Editor
A NEW JUSTICE
According to the U.S. Constitution, whenever a vacancy exists on the U.S. Supreme Court, the President of the United States is duty bound to fill that vacancy with the advice and consent of the U.S. Senate. Over the years, that process has evolved into a full scale "war" in the nation's capital that seems to get worse with every appointment.
President Barack Obama's second appointee to the Court, Solicitor-General Elena Kagan is being questioned by the Senate Judiciary Committee, and will soon be headed for a full Senate vote. Is it an inquisition, a mere formality or somewhere in between? The fact is--barring a full-scale disaster or sinister revelation--it is very likely that the President's appointee will be confirmed.
Some of the queries are valid but others are just contentious. A stickling point is Kagan's lack of judicial experience. Not only were there several justices who were confirmed having had no judicial experience, there is no Constitutional requirement stating that a U.S. Supreme Court Justice has to have prior judicial experience.
Another point of contention for some committee members is the lack of a "paper trail." Part of a judge's history is her written decisions that are handed down from the bench and it give inquiring minds a peep into her future decision-making process. That Kagan has never been a judge bothers some members since they are not able to pin her down as to a certain judicial philosophy.
Congressional Black Caucuschair, Rep. Barbara Lee (CA-9), sent the following letter:
Dear Chairman Leahy:
The Congressional Black Caucus (CBC) believes that Elena Kagan possesses outstanding academic and professional credentials, and applauds President Obama for nominating a person who understands the real-world consequences of judicial decisions. However, the CBC has questions about the nominee's views on issues of particular importance to African Americans. The CBC respectfully requests that the Senate Judiciary Committee pose the following questions to the nominee:
1. In a 1997 memorandum to President Clinton, you supported reducing the sentencing disparity between crack and powder cocaine to 10:1. Do you support eliminating the sentencing disparity?
2. In a case pending before the Supreme Court in 1997, Piscataway Bd. Of Education v. Taxman, in which a school district used its affirmative action policy to lay off a white teacher instead of a black teacher with the same seniority, the then Solicitor General wrote a memo that suggested filing a brief arguing that the teacher should not have been laid off in this particular case, and that if the court adopted this position, it would not have to address whether Title VII "always precludes non-remedial affirmative action." You wrote on that memo, "I think this is exactly the right position--as a legal matter, as a policy matter, and as a political matter." Are race-based remedies ever permissible? If left to you alone, would you have applied the "mend it, don't end it" affirmative action policy to race-neutral remedies only?
3. Please explain why you apparently opposed the formation of a commission on race by President Clinton during his second term.
4. During your tenure as Dean of Harvard Law School, the law school faculty grew by almost 50%, with the hiring of 43 full-time faculty, including 32 tenured or tenure track. Of those 32, please explain why only one minority, an Asian American, and only seven women were hired, and, of the 11 non-tenure track faculty, why only three minorities--two black and one Indian--and only two women were hired.
5. While Dean, you apparently offered faculty positions to several minority candidates who turned down the offers. How many were African American?
With the Democrats in the majority, even though they are not filibuster-proof, it is very likely that there will be a Justice Elena Kagan on the Court for the first Monday of October.