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Republicans to Focus on Whether Elena Kagan Would be a Judicial Activist

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Republicans on the Senate Judiciary Committee made clear Sunday that they will use confirmation hearings for Supreme Court nominee Elena Kagan to zero in on concerns that she would be a judicial activist and bring to the court an "expansionist" view of government.

The most serious objections were voiced by Alabama Sen. Jeff Sessions, the ranking Republican on the committee, who also targeted Kagan's lack of judicial background. Kagan has never been a federal judge and, aside from her tenure as Dean of Harvard's Law School and a clerk for the late Justice Thurgood Marshall, her major positions have been in Democratic administrations -- as President Obama's Solicitor General and as a legal adviser to former President Bill Clinton.

The hearings begin Monday.

Sessions said on CBS' Face the Nation, "She has the least experience of any nominee at least in the last 50 years. And so I think that raises questions."

Patrick Leahy, Jeff Sessions"This nominee has a very thin record legally, never tried a case, never argued before a jury, only had her first appearance in the appellate courts a year ago," he said. "She just is not the kind of nominee you would normally expect to have. Of course never been a judge. And so this raises questions because her political instincts have been strong. She's been aggressive on issue after issue from the liberal side of the political issues."

Saying "this is a confirmation, not a coronation," Sessions added, "The American people are concerned about their courts. They're concerned about a growing expansive government that seems to be beyond anything they've ever seen before. And they'd like to know what their judges might have to do about it."

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Another GOP panel member, South Carolina Sen. Lindsey Graham, said on Fox News Sunday that "I can accept that she's liberal" but expressed concern about statements she has made praising Aharon Barak, a retired president of the Supreme Court of Israel, who has been depicted by conservative critics as a proponent of judicial activism.

Introducing Barak at an awards ceremony at Harvard, Kagan described him as "the judge or justice in my lifetime whom, I think, best represents and has best advanced the values of democracy and human rights, of the rule of law and of justice."

Graham said, "The one thing that bugs me about her is that when she embraces Judge Barak from Israel and the way he thinks and the way he writes as her hero, that to me is embracing liberal activism, not mainstream liberalism, and she's going to have to explain that to me and other members of the committee."

Asked whether it would rise to the kind of extraordinary circumstance that would lead Republicans to try and block the nomination if her answers weren't satisfactory, Graham said, "I don't know if it rises to that. It will be a problem for her getting my vote and it would be a problem for a lot of moderate Democrats."

Democratic members of the committee dismissed objections about Kagan's lack of judicial experience.

California Sen. Dianne Feinstein said on Fox that it was "refreshing to bring in someone ... with her background, which is the background of regular people, a young woman who has exceeded herself, magna cum laude, summa cum laude, associate domestic policy adviser in the White House, solicitor general of the United States."

On CBS, Senate Judiciary Committee Chairman Patrick Leahy said, "It's funny talking about not being a judge. Of course up until recent years, almost half the nominees, members of the Supreme Court, have not been judges. Bill Rehnquist who became chief justice, William Rehnquist was not a judge. He came from the Nixon administration to go on to the Supreme Court."

Rehnquist had been an assistant Attorney General in the Nixon Administration before being nominated to the court.

Leahy added, "I told President Obama this, that it's reached the point that, if he had nominated Moses the law giver, some would have said we can't have him because, among other things, he hasn't produced a birth certificate."

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I think she will be confirmed, unless something really ugly is exposed. I doubt anything will. Kagan has her pet issues and no doubt she'll bring them to court, but, so far the only thing alot of people don't like is her stand on military of campus.

I read some of her writings and didn't agree with some, but, I don't think she has displayed huge prejudice on any one issue, yet. If she somehow starts making laws, there are proceedures for being removed from the bench. The general public will be watching her, as they have Sotomayor. So far the makeup of the court will not be changed.

June 28 2010 at 11:17 AM Report abuse -3 rate up rate down Reply
Pajaro de Llames

To Breeze5208:A Supreme Court Justice may be impeached by the House of Representatives and removed from office if convicted in a Senate trial, but only for the same types of offenses that would trigger impeachment proceedings for any other government official under Articles I and II of the Constitution.

Article III, Section 1 states that judges of Article III courts shall hold their offices "during good behavior." "The phrase "good behavior" has been interpreted by the courts to equate to the same level of seriousness 'high crimes and misdemeanors" encompasses.

In addition, any federal judge may prosecuted in the criminal courts for criminal activity. If found guilty of a crime in a federal district court, the justice would face the same type of sentencing any other criminal defendant would. The district court could not remove him/her from the Bench. However, any justice found guilty in the criminal courts of any felony would certainly be impeached and, if found guilty, removed from office.

In the United States, impeachment is most often used to remove corrupt lower-court federal judges from office, but it's not unusual to find disgruntled special interest groups circulating petitions on the internet calling for the impeachment of one or all members of the High Court.

The Impeachment Process

Impeachment is a two-step process; the impeachment phase is similar to a Grand Jury hearing, where charges (called "articles of impeachment") are presented and the House of Representatives determines whether the evidence is sufficient to warrant a trial. If the House vote passes by a simple majority, the defendant is "impeached," and proceeds to trial in the Senate.

The House of Representatives indicts the accused on articles of impeachment, and, if impeached, the Senate conducts a trial to determine the party's guilt or innocence.

Impeachment is a two-step process; the impeachment phase is similar to a Grand Jury hearing, where charges (called "articles of impeachment") are presented and the House of Representatives determines whether the evidence is sufficient to warrant a trial. If the House vote passes by a simple majority, the defendant is "impeached," and proceeds to trial in the Senate.

The Senate trial, while analogous to a criminal trial, only convenes for the purpose of determining whether a Justice, the President (or another officeholder) should be removed from office on the basis of the evidence presented at impeachment.

At the trial a committee from the House of Representatives, called "Managers," act as the prosecutors. Per constitutional mandate (Article I, Section 3), the Chief Justice of the United States (Supreme Court) must preside over the Senate trial of the President. If any other official is on trial, an "Impeachment Trial Committee" of Senators act as the presiding judges to hear testimony and evidence against the accused, which is then presented as a report to the remained of the Senate. The full Senate no longer participates in the hearing phase of the removal trial. This procedure came into practice in 1986 when the Senate amended its rules and procedures for impeachment and has been contested by several federal court judges, but the Supreme Court has declined to interfere in the process, calling the issue a political, not legal, matter.

At the conclusion of the trial, the full Senate votes and must return a two-thirds Super Majority for conviction. Convicted officials are removed from office immediately and barred from holding future office. The Senate trial, while analogous to a criminal trial, only convenes for the purpose of determining whether a Justice, the President (or another officeholder) should be removed from office on the basis of the evidence presented at impeachment.

Impeachment and Near Impeachment

Only one Supreme Court Justice, Samuel Chase (one of the signatories to the Declaration of Independence), has ever been impeached. The House of Representatives accused Chase of letting his Federalist political leanings affect his rulings, and served him with eight articles of impeachment in late 1804. The Senate acquitted him of all charges in 1805, establishing the right of the judiciary to independent opinion. Chase continued on the Court until his death in June 1811.

In 1957, at the height of McCarthyism, the Georgia General Assembly passed a joint resolution calling for "The Impeachment of Certain U.S. Supreme Court Justices" believed to be enabling Communism with their decisions. The resolution targeted Chief Justice Earl Warren and Associate Justices Hugo Black, William O. Douglas, Tom Campbell Clark, Felix Frankfurter, and Stanley Forman Reed (as well as several unnamed deceased Justices) for "...[usurping] the congressional power to make law in violation of Article I, Sections I and 8, and violated Sections 3 and 5 of the 14th Amendment and nullified the 10th Amendment of the Constitution."

June 27 2010 at 11:13 PM Report abuse +5 rate up rate down Reply

I do not see this woman as "qualified" to sit on our supreme court- period!

June 27 2010 at 10:28 PM Report abuse +8 rate up rate down Reply

Yes, just what we need, another activist judge...Obama seems out to destroy our Constitution...I am really scared about this activist man and the people he is putting in like the czars and others...

June 27 2010 at 10:17 PM Report abuse +7 rate up rate down Reply

Most polls show that a majority don't trust the government. Her confirmation hearings are just more proof for the distrust. The White House has blocked the release of thousands of pages of info about her, preventing the people from knowing the facts about someone as important as a Supreme Court Justice.

June 27 2010 at 10:16 PM Report abuse +10 rate up rate down Reply

I guess you have to be from the upper east coast and Harvard educated to be considered by Obama. How does that reflect the makeup of our country? Why can't we have at least one justice that represents the people. Once again 'the ruling class' will install one of there own to impose the will of the federal government over the people. Very sad. Lifetime appointments and politicians that stay in Washington for more than ten years have no concept of who the people are nor what is best for them. Washington already has too much power and this administration only wants more of it.

June 27 2010 at 9:28 PM Report abuse +12 rate up rate down Reply

Another non judge, academician, NE liberal, non military serving, rich, elitist for the court?

June 27 2010 at 9:04 PM Report abuse +14 rate up rate down Reply

Confirm her already. Anything to be known about her is already known. Obstructing for the sake of obstructing is gonna cause a lot of gridlock - and for no good apparent reason. I wonder if those on the other side of the aisle are just being "lazy."

June 27 2010 at 9:03 PM Report abuse -11 rate up rate down Reply

I think there are 12 democrats on these hearings and only 9 we all know the out-came..why waste taxpayers and shut case..

June 27 2010 at 9:01 PM Report abuse +15 rate up rate down Reply

We do NOT need another person on the Supreme Court that votes they way she/he was told, OR the way she feels about a case. Whoever is put on the court, MUST, in my opinion stick to what our laws say. This woman is not one of those who will do exactly what the law calls for. She has told us that in many ways, so she should NOT be put on the highest court in our USA.

June 27 2010 at 8:56 PM Report abuse +9 rate up rate down Reply

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