Kagan cannot, and should not, discuss cases or issues likely to come before the Supreme Court. But she can and should talk about the Constitution itself and her views about judicial review.
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Articles & Commentary
Today Jay Bybee is a judge on the U.S. Court of Appeals for the 9th Circuit, but apparently being elevated to the federal bench hasn't stunted his creative powers. In a case called Guggenheim v. City of Goleta, Bybee has managed to do what has eluded national property-rights advocates for decades: declare a rent control ordinance unconstitutional under the Fifth Amendment's Takings Clause.
On April 22, 2010, Constitutional Accountability Center sent a letter to the Senate Judiciary Committee in support of President Obama's nomination of Professor Goodwin Liu to the United States Court of Appeals for the Ninth Circuit. Read the text below or click on the link to see the letter in its entirety.
For much of the last century—long before Congress acted—federal courts allowed plaintiffs to seek injunctions to stop all kinds of pollution. Successful suits prevented an ore smelter from releasing deadly atmospheric arsenic over the homes and families of Utah, the City of Chicago from draining its sewage into St. Louis' drinking supply, and New York City from dumping its garbage into the Atlantic, where it washed up on the beaches of the New Jersey Shore. Today, states and environmentalists are turning to these and other historic precedents to make the case that climate change, too, belongs in the courts—when the other branches of government refuse to act.
At the center of the Florida suit is the claim that the Patient Protection and Affordable Care Act is "an unprecedented encroachment on the sovereignty of the states," and thus a violation of the Constitution's 10th Amendment. This argument should produce laughter from the bench for the simple reason that states are entirely free to rid themselves of any burdens imposed by the act by withdrawing from the federal Medicaid program.
Corporations do not vote, they cannot run for office, and they are not endowed by the Creator with inalienable rights. “We the People” create corporations and we provide them with special privileges that carry with them restrictions that do not apply to living persons. These truths are self-evident, and it’s past time for the Court to finally get this right, once and for all.
The Supreme Court's thunder crack of a ruling in Citizens United, killing campaign finance reform, has also provided the president and his base with the clearest indication since Bush v. Gore of how much courts and judicial nominations matter.
It's still early in President Obama's first term, but not too soon to conclude that the president's effort to "put the confirmation wars [for judges] behind us" is not going well. Only three of his 22 lower court nominees have been confirmed so far.
With an angry letter last week accusing Senate Republicans of "unprecedented obstruction" of his judicial nominees, President Obama seems to have realized the futility of his administration's well-intentioned objective of "putting the confirmation wars behind us." Wars end only when both sides agree to put down their arms, and Senate Republicans never had any desire to do that. So, what's the endgame for this session of Congress? And which side will prevail in the longer term?