Adding to the drama of an election year and the Supreme Court taking on the Obamacare law, SCOTUS will also hear the Arizona immigration law next spring/summer:

The high court agreed to review a ruling that put on hold the key parts of the law signed by Republican Governor Jan Brewer in April 2010. The case has been closely watched because several other states have adopted similar laws.

The law requires police to check the immigration status of anyone they detained and suspected of being in the nation illegally. Other parts require immigrants to carry their papers at all times and ban people without proper documents from soliciting for work in public places.

The justices are likely to hear arguments in the case in April, with a ruling due by July.

Only eight Supremes will hear the case:

In its notice, the court said Justice Elena Kagan had recused herself from the decision to take the case.

Justice Kagan has come under fire for not recusing herself from the decision to hear challenges to the new health care law.

She was Mr. Obama’s solicitor general from March 2009 up through May 2010, though she stopped taking part in cases in March 2010 so she would preserve her ability to hear them as a justice.

The health care law was signed in March 2010. Arizona’s immigration law passed in April 2010.

In May the Supreme Court upheld a separate 2007 Arizona law that imposes sanctions on businesses that hire illegal aliens. Kagan sat that one out as well.

**Written by Doug Powers

Twitter @ThePowersThatBe

Tuesday, as Michelle noted, C-Span asked the Supreme Court to allow their cameras to televise oral arguments when the Court hears the Obamacare law case next spring.

Nancy Pelosi agrees:

House Minority Leader Nancy Pelosi (D-Calif.) said Wednesday that Supreme Court arguments over President Obama’s healthcare law should be televised.

“When the Affordable Care Act is placed before the highest court in our country, all Americans will have a stake in the debate; therefore, all Americans should have access to it,” Pelosi said in a news release.

Back when all Americans should have had a stake in the debate — which was when it was being written — all they got was closed door meetings and “you have to pass it to find out what’s in it.” Now that it’s in the Supreme Court, where the opinion of anybody who isn’t wearing a SCOTUS robe or in the room arguing the case doesn’t really matter, transparency should be the order of the day.

Something’s making me suspicious enough to be against the idea now that Nancy Pelosi is for it. I can already picture her watching the Supreme Court proceedings with her stock broker on the line and adjusting investments based on how the debate is going: “Dump Cigna, exercise the call options on GE, and if Ruth Bader Ginsburg scratches her nose one more time go short on Medtronic.”

This seems like only yesterday…

**Written by Doug Powers

Twitter @ThePowersThatBe

They’ve been stubbornly opposed to sunlight, but it’s worth a try:

SCOTUS Healthcare TV Coverage

**Written by Doug Powers

Obamacare’s arrival at the Supreme Court was inevitable, and as predicted it’s now knocking on the big white pillars:

After a year and a half of legal skirmishing, President Obama’s embattled healthcare law has arrived at the Supreme Court riding a surprising winning streak and carrying a constitutional stamp of approval from prominent conservative judges.

Only three of the 12 appellate judges who have reviewed the law have decided it is unconstitutional to require all Americans to have health insurance. Not a single appeals court judge has said the entire law must be tossed out, the position advocated by Florida and 25 other Republican states leading the legal assault.

The Supreme Court is expected to announce as soon as Monday that it will hear the Florida case, the largest and broadest challenge to the Patient Protection and Affordable Care Act.

I wonder which way Elena Kagan’s going to rule. The suspense is too much.

According to Rasmussen, 54 percent favor a repeal of the law, so who knows — maybe a SCOTUS rejection would inadvertently do Obama a favor next year.

If the Court hears Obamacare as expected, a ruling could come around the end of June, just a few months before the election. Let the games begin!

**Written by Doug Powers

Twitter @ThePowersThatBe

***

Monday update (MM): SCOTUS announced this morning it will likely hear arguments in late March, with a decision expected next summer.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. — 4th Amendment to the US Constitution

The Indiana Supreme Court has ruled that the 4th Amendment needs a disclaimer when it comes to officers of the law acting unlawfully (at which point, by definition, wouldn’t they cease to be “officers of the law”?).

Bruce McQuain has the details:

That’s what the Indiana Supreme Court decided in what would be a laughable finding if it wasn’t so serious:

Overturning a common law dating back to the English Magna Carta of 1215, the Indiana Supreme Court ruled Thursday that Hoosiers have no right to resist unlawful police entry into their homes.

The author of the story reporting this is right – somehow the ISC managed, in one fell swoop, to overturn almost 900 years of precedent, going back to the Magna Carta.

In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer’s entry.

Or said another way, your home is no longer your castle.

From the ruling (PDF):

David, Justice.
A jury convicted Richard Barnes of Class A misdemeanor battery on a law enforcement officer, Class A misdemeanor resisting law enforcement, and Class B misdemeanor disorderly conduct. Barnes contests that the trial court‘s failure to advise the jury on the right to reasonably resist unlawful entry by police officers constituted reversible error and that the evidence was insufficient to sustain his convictions. We hold that there is no right to reasonably resist unlawful entry by police officers. We further hold that the evidence was sufficient and affirm Barnes‘s convictions.

Also from the ruling:

We believe however that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action.

In other words, “in the old days if an officer unlawfully entered your home and arrested you, you were pretty much screwed but now you have ways to prove your innocence and file a complaint against the officer, so just shut up and tolerate the initial injustice for the safety of everybody involved.” But what if the officer entering unlawfully uses the opportunity to plant evidence to justify his or her unlawful entry and render it artificially lawful? We could play those back and forth games all day, and that’s why the 4th Amendment is there.

Two justices opposed the majority, citing the 4th:

Justices Robert Rucker and Brent Dickson dissented, saying the court’s decision runs counter to the Fourth Amendment of the U.S. Constitution.

“In my view the majority sweeps with far too broad a brush by essentially telling Indiana citizens that government agents may now enter their homes illegally — that is, without the necessity of a warrant, consent or exigent circumstances,” Rucker said. “I disagree.”

So Hoosier Staters can now be arrested and charged with “unlawfully resisting an unlawful entry”? Bizarre.

**Written by Doug Powers

Twitter @ThePowersThatBe

Senator Schumer is pretty sure that the Supreme Court is not one of the equal but separate branches of government, so as such it’s possible that Chuck’s advised the White House that they have the power to tell the Supreme Court what to do:

The Obama administration told the Supreme Court on Monday night it should stay away from a high-profile challenge to the 2010 health care law until after a lower court has had a chance to review the case.

Acting Solicitor General Neal Katyal wrote, “there is no basis for short-circuiting the normal course of appellate review.” Katyal also says Virginia Attorney General Ken Cuccinelli’s case is problematic because he may lack sufficient standing to challenge the health care law.
[...]
In his filing last month, Cuccinelli said there’s a “palpable consensus” that the high court will ultimately have to pass judgment on the merits of President Obama’s health care law and should do so without delay. Furthermore, Cuccinelli argues that his case involves “pure issues of constitutional law” that appellate judges on the Fourth Circuit U.S. Court of Appeals will be unable to definitively resolve.

Team Obama has said they’re absolutely convinced of the health care law’s constitutionality, so with that in mind wouldn’t you think they’d welcome a fast-track opinion on the law and ultimate thumbs-up from the Supreme Court?

**Written by Doug Powers

Twitter @ThePowersThatBe

President Obama just can’t let go of far Left San Francisco liberals out of touch with mainstream America — and the law.

After dropping two controversial Bay Area judicial nominees from his slate before Christmas, Obama has resurrected the bids of 9th Circuit nominee Goodwin Liu and US Magistrate and ethnic-card jurist Edward Chen and renominated several dozen other candidates.

Liu’s chronic amnesia and recklessly injudicious smearing of Supreme Court justice Samuel Alito are bad enough. But his expedient metamorphosis from radical judicial activist to cut-and-run cypher is baldly disqualifying.

Way to extend that olive branch, eh?

Is burning the Koran something protected by the First Amendment? Supreme Court Justice Breyer told George Stephanopoulos that it might not be, claiming it could be akin to yelling “fire” in a crowded theater — which to me is a bogus argument, provided the book wasn’t set ablaze in a crowded theater.

From ABC News:

Last week President Obama told me that Pastor Jones could be cited for public burning – but that was “the extent of the laws that we have available to us.” Rep. John Boehner said on “GMA” that “just because you have a right to do something in America does not mean it is the right thing to do.”

For Breyer, that right is not a foregone conclusion.

“It will be answered over time in a series of cases which force people to think carefully. That’s the virtue of cases,” Breyer told me. “And not just cases. Cases produce briefs, briefs produce thought. Arguments are made. The judges sit back and think. And most importantly, when they decide, they have to write an opinion, and that opinion has to be based on reason. It isn’t a fake.”

I’m not a lawyer, but I thought a SCOTUS justice’s opinion was supposed to be based on the Constitution and not his or her subjective definition of “reason.”

I highly doubt Breyer would have given the free speech question nearly as much thought if Steffy would have said “Bible” or “flag” instead of “Koran.” Read Breyer’s entire statement and shudder at what appears to be his opinion that the age of the internet will invariably set limits on our constitutional rights. Damn that Al Gore.

Just a little extra motivation heading into the next couple of election cycles — unless someday a few robed figures decide that saying “election” is as dangerous as yelling “fire” in a crowded theater.

**Written by Doug Powers

Twitter @ThePowersThatBe

There’s soon to be an entire wing in the Nancy Pelosi Hall of Ecclesiastical Shame dedicated to Lindsey Graham:

(CNSNews.com) – Republican Sen. Lindsey Graham of South Carolina said that Jesus’s Golden Rule inspired him to vote to confirm Elena Kagan to the U.S. Supreme Court and suggested it would be a good thing for his Senate colleagues to also ponder Jesus’s words as they prepared to vote on Kagan.

“It is divine in its orientation, and it is probably something that would serve us all well if we thought about it at moments such as this,” Sen. Graham said on the Senate floor, as he pointed his colleagues to the Golden Rule and counseled them to look to the wisdom of “somebody far wiser than I am” as they cast their votes on Kagan.

As an associate counsel in the Clinton White House, Kagan was an architect of the legal and political strategy that President Bill Clinton used in vetoing the ban on partial-birth abortion. Her nomination by President Barack Obama in May was instantly endorsed by Planned Parenthood, one of the nation’s leading advocates of legalized abortion.

I agree that more of Graham’s colleagues — Graham included — should have pondered Jesus’s words as they prepared to vote.

As for the Golden Rule — “Do unto others as you would have them do unto you” — somebody needs to remind this clown that his job isn’t about him, but rather the people he serves. Graham did unto another as that other will do unto millions of people, both born and unborn. That’s not the Golden Rule — that’s the Beltway Rule.

**Written by Doug Powers

Twitter @ThePowersThatBe

Obama Supreme Court nominee Elena Kagan was confirmed by the Senate this afternoon.

USA Today breaks the vote down:

Only five Republicans voted in favor of Kagan’s nomination. Last year, just nine Republicans voted for Justice Sonia Sotomayor, Obama’s first Supreme Court appointee.

Today’s yes votes included Sen. Lindsey Graham, R-S.C., the lone Republican on the Senate Judiciary Committee to support Kagan when the panel recommended the nomination to the full Senate on a 13-6 vote. Other GOP yes votes came from Richard Lugar of Indiana, Olympia Snowe and Susan Collins of Maine, and Judd Gregg of New Hampshire.

Sen. Scott Brown, R-Mass, one of Kagan’s home state senators, voted against her.

The confirmation took place as a thunderstorm raged outside, prompting several wry Tweets as the votes were tallied:

@keithcrc: SuperStorm pounds DC just as #Kagan confirmation vote is taken #someonesnothappy

@kathyrnlopez: the thunderstorms over dc echo my kagan-vote mood this afternoon.

@Winghunter: @michellemalkin If they think that’s a storm, they ain’t seen nuthin’ yet.

Here’s hoping…

***

Sigh: Franken apologizes for being Franken…

When Senate Minority Leader Mitch McConnell laid out his opposition to Elena Kagan’s Supreme Court nomination, someone in the chamber appeared to be moving around in his chair, gasping and rolling his eyes.

It was Sen. Al Franken.

He just announced this morning he’s voting with the Democrats on the Kagan nomination, and reportedly took a holier-than-thou stance by complaining about Dems who blocked Bush judicial nominations.

Spare us the bipartisan sanctimony routine.

***

Kagan vote count tracker here.

Via lefty blog TPM:

“What’s in Elena Kagan’s heart is that of a good person who adopts a philosophy that I disagree with,” Graham said after other Republicans criticized Kagan, the solicitor general, as lacking judicial experience. “There’s plenty of reasons for a conservative to vote no, but there are plenty of reasons for a conservative to vote yes.”

“She is a loyal American, very patriotic,” Graham said after detailing her record on military issues. He said Kagan was “smart” and “funny” and that shows “you are pretty comfortable with who you are.” He added, “she’s liberal.” Graham also said Miguel Estrada’s letter in support of Kagan hit him “hard” and factored into his decision. During her confirmation hearings, Graham and Kagan discussed Estrada’s legal career and she agreed to write a letter recommending him for the high court. Today, Graham read aloud from Kagan’s letter, which called Estrada a “towering intellect.”

He cited Barack Obama’s election in 2008, saying he’s constitutionally bound to support a qualified nominee and “honor elections” even though he would have made a different choice because he and Obama are on opposite political sides. “She’s passed all those tests,” Graham said.

The Republican also cited upcoming elections, even though he’s not up for reelection this fall. “I’m going to vote for her,” Graham said, “and that doesn’t mean I’m pro-choice. I believe the last election had consequences and this president chose someone who is qualified, who has the experience and knowledge to serve on this court, who is in the mainstream of liberal philosophy and understand the difference between being a judge and a politician.”

***

On a happier note: God bless Jeff Sessions.

***

Update 12:34pm Eastern- Senate Judiciary Committee votes 13-6 to send up Kagan nomination for full Senate vote. Graham is the lone yes vote for the GOP.

Don’t break your arm patting yourself on the back, Sen. Graham.

Oh, of course she does, but how quickly even those with the highest formal educations can suddenly act like they were raised by wolves:

Supreme Court nominee Elena Kagan on Tuesday fought off Republicans who were trying hard to paint her as a liberal activist, saying she’d be a fair, open-minded justice and refusing to call herself a “legal progressive.”

“I honestly don’t know what that label means,” Kagan told Sen. Jeff Sessions of Alabama .

Sessions, the Senate Judiciary Committee’s top Republican, kept pressing the former Harvard Law School dean, quoting her colleagues to make the point. Kagan wouldn’t take the bait, though.

As Sessions pointed out in the confirmation hearing, as of last month, Joe Biden’s smartass chief of staff knew the meaning of the label “legal progressive”:

“Elena is clearly a legal progressive,” said Ron Klain, Vice President Joe Biden’s chief of staff and Kagan’s classmate at Harvard Law School in the 1980s. “She’s got a pragmatic perspective.”

As Dean of Harvard Law School, you’d think Kagan would have disallowed a label with which she’s so unfamiliar from being used in the description of the Harvard Law & Policy Review:

The Harvard Law & Policy Review provides a prominent forum for debate and discussion of innovative progressive and moderate legal policy ideas, analysis and proposals. The Review invites innovative approaches to policy challenges by progressive legal scholars, policymakers, and practitioners. HLPR serves as a nexus between the worlds of academia, policy-making, and practice, with a focus on promoting first-rate scholarship with practical application to societal challenges. HLPR is the official national journal of the American Constitution Society for Law and Policy (ACS).

Naturally, Kagan’s dodge is part of the game people who can’t fess up to what they’re really about must play, but it’s the Republicans’ job to be prepared with proper follow-up material (passing concern — Orrin Hatch isn’t preoccupied with writing a song for Robert Byrd like he did for Teddy, is he?).

I’m not a lawyer, and the closest I’ve ever come to a courtroom is showing up for jury duty, but maybe Sessions should have replied, “A legal progressive… you know, somebody who, oh, I don’t know, thinks it’s okay for the government to defy the Constitution but who justifies the unconstitutionality with precedent from foreign laws while trying to alleviate the fears of Constitution zealots by expressing a degree of certainty that the government won’t enforce whatever it is they’re doing anyway.”

By the way, I’ve found no validity to the claim that Chuck Grassley was trying to get clues about Kagan’s sexual preference by asking her if she’s bummed Lilith Fair was cancelled.

**Written by guest-blogger Doug Powers

Twitter @ThePowersThatBe

The Supreme Court ruled for the first time Monday that the Second Amendment provides all Americans a fundamental right to bear arms, a long-sought victory for gun rights advocates who have chafed at federal, state and local efforts to restrict gun ownership.

The court was considering a restrictive handgun law in Chicago and one of its suburbs that was similar to the District law that it ruled against in 2008. The 5 to 4 decision does not strike any other gun control measures currently in place, but it provides a legal basis for challenges across the country where gun owners think that government has been too restrictive.

“It is clear that the Framers . . . counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty,” Justice Samuel A. Alito Jr. wrote for the conservatives on the court.

It was a 5-4 decision with Justice Sam Alito penning the majority decision and Justice Antonin Scalia writing a scathing concurrence and kiss-off to retiring Justice Anthony Stevens. Ed Morrissey runs down the ruling here.

Praise pouring in from Capitol Hill. From my mailbox, GOP Sen. Jim DeMint reacts:

Today, U.S. Senator Jim DeMint (R-South Carolina), chairman of the Senate Steering Committee, made the following statement after the U.S. Supreme Court ruled in the McDonald v. City of Chicago case that the Second Amendment guarantees the right to keep and bear arms to citizens in all 50 states.

And GOP Rep. Mike Pence:

U.S. Congressman Mike Pence, Chairman of the House Republican Conference, released the following statement today after the U.S. Supreme Court, in its ruling on McDonald v. Chicago, extended the Second Amendment right to keep and bear arms to all fifty states:

“This decision is a victory for the Second Amendment, but as a 5 to 4 ruling among the justices it also sends a warning. The Supreme Court is closely divided and at least four of its members would not extend a basic constitutional right to all fifty states. For that reason alone, the nomination and confirmation of any Supreme Court Justice requires careful deliberation to ensure that the members of the high court will protect the rights handed down by our Founding Fathers.”

The bad news? This should be a triumph for the granddaddy of gun rights groups, the National Rifle Association. But the NRA has been getting into hot water lately with grass-roots. Erick Erickson at RedState and Curt Levey of the Committee for Justice blows the whistle:

Despite the NRA’s concerns about Sonia Sotomayor’s gun rights record – concerns confirmed by her vote today in McDonald – the NRA did not publicly oppose her confirmation last summer until after the release of a letter of opposition signed by 14 members of the NRA board and the heads of five NRA state affiliates. Nonetheless, the NRA’s eventual opposition was key to making gun rights the most prominent and influential issue in the final month of the Sotomayor confirmation fight.

This summer, people have been asking why NRA board members have not spoken out about Kagan’s even worse Second Amendment record. The explanation CFJ has been hearing from board members was confirmed yesterday by Erick Erickson’s reporting at RedState:
“Internal Senate emails confirmed by NRA Board Members show that the National Rifle Association’s management team has explicitly and directly told the NRA’s board they are prohibited from testifying about second amendment issues during the Elena Kagan confirmation hearings. … [and] from coming out against Kagan in their individual capacity.”
The gag order, issued months ago in anticipation of the current Supreme Court vacancy, was a reaction to the NRA’s concern about having its hand forced last summer.

Unlike other leading gun rights groups, including the Second Amendment Foundation and Gun Owners of America, the NRA had been silent on Kagan. But that changed on Friday. While stopping short of opposing Kagan for now, the NRA did issue a statement critical of her. Erickson says the statement came “after the internal Senate email began leaking out.”

Levey notes the NRA sellout on the DISCLOSE Act:

It remains to be seen whether the NRA will formally oppose Kagan’s confirmation before the Judiciary Committee and full Senate vote on her. I hope so. Having opposed Justice Sotomayor and announced the scoring of her confirmation vote last summer, doing less this summer will be interpreted as NRA acquiescence in Kagan’s confirmation.

I am not unaware of or completely unsympathetic to the political calculations holding the NRA back. However, in light of the NRA’s recent negotiation of a special carve out in the DISCLOSE Act, the controversial campaign finance bill, the NRA needs to be sensitive to putting politics above principle.

Yeah, that’s a chronic problem in Washington, isn’t it?

Places, places everyone.

Today, the curtain officially opens on the Senate “battle” over Obama Supreme Court nominee Elena Kagan. “Battle” gets ghost quotes because all the poohbahs on Capitol Hill are already treating her confirmation as a “foregone conclusion.”

Beltway Republicans will put up just enough of a fight to placate grass-roots conservative activists on Kagan’s radical social views, while the nutroots will pout (but not too loudly) that Kagan isn’t enough of a liberal activist for them. And GOP Sen. Lindsay Graham, after several minutes of obligatory grandstanding mixed with obsequious suck-uppage, will cast his vote with Kagan and Obama — as he did with Sonia Sotomayor (whom he praised as “bold” and edgy”).

Here’s one MSM list of the “5 things to watch out for” during Kagan Kabuki.

I would add:

–Will Kagan impersonate Goodwin Liu? Confronted with his radical writings and speeches, Obama’s far Left 9th Circuit Court of Appeals nominee cut and ran from his long-held political beliefs on everything from the welfare state to racial quotas to the role of the judiciary.

– Will Kagan impersonate Joe Biden? Kagan’s hostility to the 2nd amendment is certain to be raised by Republicans. When faced with criticism from gun-owners regarding his boss’s views, Biden turned into a gun-slinging cowboy — and attempted to assuage self-defense activists by bragging about his own shotguns and Berretta.

(Speaking of guns, the Supreme Court is expected to hand down a ruling today in the gun rights McDonald v. Chicago case.

–How many times will we hear the Kagan=”everyday people/compelling personal story” meme before the hearings are through? Hey, it worked for Sonia Sotomayor…

– How quickly will left-wing WaPo fashion writer Robin Givhan (who bashed Bush-nominated Supreme Court Justice John Roberts’ children’s clothes) crank out a piece praising Kagan’s sensible, down-to-earth, common people style?

– How many times will we hear Democrat Senators vouch for Kagan’s commitment to social-engineering “diversity” at Harvard?

– How many Senators have actually read through the 44,000-plus pages of Kagan-authored legal memos, analysis and other documents during the Clinton era just released less than two weeks ago. Answer: ZERO.

***
Americans United for Life has a Kagan backgrounder and questions for the nominee here.

Lee Ross at FoxNews.com has a rundown of today’s events:

Monday’s kickoff will be the most scripted day of the confirmation hearing that is expected to last all week. The day is dedicated to opening statements from the 19 Senate Judiciary Committee members (12 Democrats and seven Republicans) and the nominee. Kagan will be presented to the committee by Massachusetts Senators John Kerry (D) and Scott Brown (R). In between her work in the Clinton and Obama Administrations, Kagan was a professor at Harvard Law School outside Boston. It is customary for nominees to be presented to the committee by their home state senators, though Kagan was born and raised in New York City and once taught at the University of Chicago Law School.

Kagan’s statement to the committee will not come until late in the afternoon and will end the hearing’s first day. It will mark the first substantive remarks from her since the May 10 nomination announcement at the White House. In the weeks since, Kagan has met with 62 senators and more recently has spent several hours each day preparing her answers to questions she expects to hear.

Here’s a brief summation of conservative concerns about Kagan from Utah GOP Sen. Orrin Hatch. I know. I know. It’s Senator Open Borders Hatch. But at least he’s right about this:

“Judges who bend the Constitution to their own values and who use the Constitution to pursue their own vision for society take this right away from the people and undermine liberty itself.”

Monday opens with a SCOTUS bang. NBC News reports tonight that Harvard Law School dean turned solicitor general Elena Kagan will be the White House SCOTUS nominee to replace retiring Justice John Paul Stevens. It was widely rumored she would be the pick leading into the weekend. The announcement is expected at 11 a.m. Eastern:

President Barack Obama will nominate U.S. Solicitor General Elena Kagan to serve as an associate justice on the U.S. Supreme Court, NBC News’ Pete Williams reported late Sunday night.

Kagan, 50, served as the Dean of Harvard Law School from 2003 to 2009. Obama nominated her to serve in her current post as solicitor general early in 2009, and she won Senate confirmation by a vote of 61-31. She is the first woman to serve as solicitor general of the United States.

She was widely viewed as a front-runner when Obama was considering candidates for a Supreme Court opening last year, but the president ultimately chose Sonia Sotomayor for the job.

The Beltway conventional wisdom has already cast her as a “mooooderate” and a “pragmatist.” Ed Whelan at Bench Memos has the appropriate retort to that narrative.

And here’s a reminder from my blog almost exactly a year ago when Kagan was on the short list for the SCOTUS slot that ultimately went to Sonia Sotomayor:

“Dean Kagan’s nomination to the Supreme Court would be concerning given her complete lack of judicial or appellate experience. She has never been a judge or even argued a case in a court of appeals. It is difficult to see how her experience fundraising for Harvard Law School qualifies her for a seat on the Nation’s high court.

-Dean Kagan has argued that nominees to the Supreme Court should undergo a searching inquiry into the nominee’s substantive views of the law, and should comment particular issues. If nominated, it will be interesting to see whether Dean Kagan remains faithful to this prescription in answering the Committee’s questions.”

The nutroots aren’t happy with Kagan’s clubby academic ties or her work for Goldman Sachs. HuffPo:

While the work [Elena] Kagan did for Goldman remains largely brief or unknown, the Huffington Post was passed along two reports that the advisory council completed in 2005 and 2008. … The findings touch on the broad risks that the world economy faced and contain the type of insight expected from a largely formal panel. In terms of content, they came up a bit short, failing to mention credit bubbles in major economies (such as the U.S. housing market) as a looming problem.

Considering how many actual economists missed the housing bubble in real time, it would be difficult to hold Kagan to a higher standard — though Goldman was already betting against the housing market by the time the latter report was published.

The issue for progressives, however, isn’t her lack of long-term market salience. But rather the ties — however small — to a firm that is now a black mark on Wall Street and a pariah in Congress. … “I just don’t understand why the Administration would want to makes themselves and their nominee vulnerable to the opposition at a time when American skepticism of Wall Street is at an all time high,” said a prominent progressive strategist speaking on the condition of anonymity. “This is like handing the Republicans the mantle of populism just for trying to oppose Kagan’s confirmation.” …

Yeah. It’s going to make it a little more difficult to pull off the “compelling personal story”/SCOTUS nominee in touch with the people schtick that smoothed the path for Sotomayor.

Heckuva job, Obama optics experts…

***

Amen to what Sen. Jeff Sessions wrote in the Washington Post on Friday:

As government continues its rapid expansion, Americans are looking for judges in the mold of Chief Justice John Roberts, not Justice John Paul Stevens. They are looking for judges who will stay true to our Founders’ vision instead of imposing their own. They are looking for judges who recognize the limits on government power; who restrain themselves to the text of the Constitution; and who will defend the rights of all citizens without bias, without prejudice and without hesitation.

***

File under Curious Timing: The late Friday night resignation of top White House lawyer Daniel Meltzer, who shepherded Sotomayor through her SCOTUS nomination last year, is interesting, isn’t it?

Daniel J. Meltzer, a top White House lawyer who has played a critical behind-the-scenes role in the administration legal team, is resigning next month and will return to his tenured position as a Harvard law school professor, the White House said on Friday.

Mr. Meltzer’s last day as the principal deputy counsel to President Obama will be June 1. Since the administration took office, he has worked on nearly every major legal issue the White House has handled, a sprawling portfolio that ranged from domestic policies to national security matters.

…Among other things, Mr. Meltzer played a leading role in the administration’s efforts to close the military prison at Guantanamo Bay, Cuba, and related policies affecting terrorism detainees.

…In addition, Mr. Meltzer, who teaches courses on the federal courts at Harvard, helped prepare Supreme Court Associate Justice Sonia Sotomayor for her confirmation hearings – a role he may reprise in his final weeks by working with Mr. Obama’s forthcoming Supreme Court nominee, which the president is expected to announce as soon as Monday.

Tom Goldstein at SCOTUSblog weighs in on where we go from here, process-wise:

Note the relationship between Monday’s announcement and the Senate calendar. There are seven weeks between Monday and June 28. Six to seven weeks is traditionally regarded as the minimum amount of time between a nomination announcement and hearings before the Senate Judiciary Committee. June 28 marks the last week the Senate is in session before its July 4 recess, which runs from Saturday, July 3 to Sunday, July 11. So, tomorrow’s announcement is timed to permit hearings to be conducted prior to the recess, if (and it’s a big if) the Senate Judiciary Committee agrees.

Whether they will agree will depend on a number of factors. Kagan’s relatively short paper trail – note the contrast with the nearly two decades of decisions by Sonia Sotomayor – means there is less to review, and thus less time is required prior to the start of hearings. Kagan was also recently confirmed by the same Committee as Solicitor General.

Senate Democrats will prefer to move the process forward quickly for two reasons: so that Kagan is not “left hanging” for nine weeks before she appears before the Committee; and so that the nomination can be moved forward to make room in the calendar for legislative efforts. On the other hand, Republicans, as the opposition, will prefer delay because as more time passes there is a greater chance that something will emerge that justifies defeating (or at least undercuts) the nomination.

Also important will be the speed with which the Administration produces documents – not only the nominee’s questionnaire to the Senate but also the documents it intends to produce from Kagan’s time in the Clinton Administration. A genuine fight over materials could lead to a delay.

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From SCOTUSReport:

Rick Garnett, professor of law and associate dean of University of Notre Dame Law School, and former law clerk for Chief Justice Rehnquist: “Elections matter, and the election of President Obama has turned out to matter a great deal for the future decisions and direction of Supreme Court. With the nomination of Solicitor General Kagan, the President has taken a significant step toward reshaping the Court and its work for generations. No one should think that this nomination is inconsequential, or that it changes little because it involves merely replacing one liberal justice with another. A conservative might someday win back the White House, but any future Republican president will be playing defense with his or her Supreme Court selections. With his second Supreme Court pick — and, to be clear, he will almost certainly have more — the President is on the way to having had more influence over the Court than any President since Reagan, and perhaps even Roosevelt. Future elections might undo some of the President’s policies, but his more liberal views about the Constitution, the powers of the national government, and the role of unelected federal judges, are now being locked in securely.”

David McIntosh, co-founder of the Federalist Society and former congressman from Indiana: I’m deeply disappointed that President Obama has chosen to nominate an individual who has demonstrated a lack of adherence to the limits of the Constitution and a desire to utilize the court system to enact her beliefs of social engineering. Solicitor General Kagan has been nominated with no judicial experience, a mere two years of private law practice, and only a year as Solicitor General of the United States. She is one of the most inexperienced nominees to the U.S. Supreme Court in recent memory.

More from the Judicial Network here.

Heh: “I love it when the most transparent administration ever picks a nominee because they don’t have much of a paper trail.”

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A look at Kagan’s days at Harvard: The Kagan cover-up.

Update: 10:23am Obama made the formal announcement, painting Kagan as a woman who will represent “everyday people” and “ordinary citizens.” Kagan repeated the narrative in her own brief remarks. Alinskyite story-telling in full force. Funny enough, the nutroots still aren’t playing.

Cue the Democrats’ Kagan confirmation theme song!

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Sad, but true: Why Kagan is Likely to Sail to Confirmation. The nutroots seem to be more up for a fight than the Senate Republicans, alas.