From 2009: Justice John Roberts on oral arguments

From the "Well, if you say so..." files:

Chief Justice John Roberts said Saturday that he has "complete confidence" in his colleagues' ability to step away from cases where their personal interests are at stake, and noted that judges should not be swayed by "partisan demands."

The comment, included in Roberts' year-end report, comes after lawmakers demanded that two Justices recuse themselves from the high court's review of President Obama's health care law aimed at extending coverage to more than 30 million people. Republicans want Justice Elena Kagan off the case because of her work in the Obama administration as solicitor general, whereas Democrats say Justice Clarence Thomas should back away because of his wife's work with groups that opposed changes to the law.

While not mentioning the upcoming health care ruling, or any case in particular, Roberts' year-end report dismissed suggestions that Supreme Court Justices are subject to more lax ethical standards than lower federal courts and said each Justice is "deeply committed" to preserving the Court's role as "an impartial tribunal" governed by law.

"I have complete confidence in the capability of my colleagues to determine when recusal is warranted," wrote Roberts. "They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process. I know that they each give careful consideration to any recusal questions that arise in the course of their judicial duties."

I don't know that there's anything groundbreaking about the Chief Justice expressing confidence in his court's ability to be professional. What else could he say? Neither Kagan nor Thomas have indicated that they will recuse themselves from hearing the upcoming cases on the ACA. Although it is left up to the individual justice to recuse him- or herself, there is a federal statute that states that judges should recuse themselves from any case in which their impartiality can reasonably be questioned, which I think can be argued for Thomas (and Kagan, to a far lesser degree). But Roberts thinks that the standard is different for the highest court:

Roberts says that while Supreme Court Justices follow the same general principles respecting recusal as other federal judges, “the application of those principles can differ due to the unique circumstances of the Supreme Court.”

Unlike a lower court judge, a Supreme Court Justice cannot be replaced if she steps down from a case.

“A Justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy. Rather, each Justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case. ”

Justices are also required to file financial disclosure reports similar to all other federal judges. These reports disclose the Justices’ non-governmental income, investments, liabilities, gifts and reimbursements from third parties.

Frankly, Roberts made a fairly compelling argument for exactly why Thomas should recuse himself from the upcoming cases. Just like a Bush nominee to see it exactly backwards from reality.

In a predictable 5-4 decision [PDF], conservatives on the US Supreme Court struck down Arizona's public campaign finance law, claiming it would stifle private expenditures because of the trigger mechanism that would allow opponents to receive additional public funds. Here's the logic, which I've tried to understand but don't:

The burden imposed by the matching funds provision is evident and inherent in the choice that confronts privately financed candidates and independent expenditure groups. Indeed every court to have considered the question after Davis has concluded that a candidate or independent group might not spend money if the direct result of that spending is additional funding to political adversaries. Arizona is correct that the candidates do not complain that providing a lump sum payment equivalent to the maximum state financing that a candidate could obtain through matching funds would be impermissible. But it is not the amount of funding that the State provides that is constitutionally problematic. It is the manner in which that funding is provided--in direct response to the political speech of privately financed candidates and independent expenditure groups. [Emphasis added]

Elena Kagan's magnificent dissent, which she read aloud from the bench today, outlines the issues before the court. Describing two states' campaign finance structures, one that is corrupt and one seeking to end corruption, she describes the Arizona law this way:

So the voters enact a program that carefully adjusts the money given to would-be officeholders, through the use of a matching funds mechanism, in order to provide this assurance. The program does not discriminate against any candidate or point of view, and it does not restrict any person’s ability to speak. In fact, by providing resources to many candidates, the program creates more speech and thereby broadens public debate. And just as the voters had hoped, the program accomplishes its mission of restoring integrity to the political system. The second State rids itself of corruption.

And then goes on to express incredulity (and frustration) over the majority's decision:

A person familiar with our country’s core values—our devotion to democratic self-governance, as well as to “uninhibited, robust, and wide-open” debate, New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964)—might expect this Court to celebrate, or at least not to interfere with, the second State’s success. But today, the majority holds that the second State’s system—the system that produces honest government, working on behalf of all the people—clashes with our Constitution. The First Amendment, the majority insists, requires us all to rely on the measures employed in the first State, even when they have failed to break the stranglehold of special interests on elected officials.

And that was the mild part of her dissent, which was joined by Justices Sotomayor, Breyer, and Ginsburg. Reading through the entire opinion -- majority and dissent -- reads like a contentious family argument.

Toward the end of her dissent, Kagan wrote this:

Arizona, remember, offers to support any person running for state office. Petitioners here refused that assistance. So they are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance. Some people might call that chutzpah.

And this:

As against all this, the majority claims to have found three smoking guns that reveal the State’s true (and nefarious) intention to level the playing field. But the only smoke here is the majority’s, and it is the kind that goes with mirrors.

Justice Kagan was full of fire, and rightly so.

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Elena Kagan has been confirmed by the Senate to become the newest Associate U.S. Supreme Court justice by a vote of 63-37. For the first time in history, three women will serve as Supreme Court justices at the same time.

As Senate confirmation battles go, this one was fairly low-key. Republicans spent a lot of time claiming she was anti-gun and pro-abortion, but with very little evidence to support their claims. The best they could do was to offer an argument about her lack of judicial experience -- an argument some Democrats also used against her.

The sole dissenting Democrat was Ben Nelson, who may call himself a Democrat, but never fails to bolster the Republican vote count. At the last minute, Sen. Scott Brown (R-MA) announced his opposition to Kagan's nomination, resting on the "lack of experience" excuse, but really just buying some political cover back home.

More from the AP on Kagan here.

People For the American Way released this statement:

“Americans should be proud that Elena Kagan was confirmed to the Supreme Court today. She brings to the bench sterling credentials and a formidable intellect. Her commitment to the Constitution and equal justice under law will serve the Court well in the decades ahead

“During her hearings, Elena Kagan spoke powerfully about the Constitution as a timeless document, constructed by its framers to be interpreted over time in light of new situations and in new contexts. She articulated a view of the Constitution and the role of judges in sharp contrast to Chief Justice Roberts’ misleading analogy to an umpire calling balls and strikes. Solicitor General Kagan made clear that she has the intellectual fortitude and the command of the law to keep faith with our Constitution--its amendments, its history, and its core values like justice and equality under the law.

“Thanks to today’s vote, the Supreme Court will have three female Justices for the first time in our nation’s history. This is an historic step forward for all Americans, and an advancement of which every citizen should be proud.”

Update: Kagan will be sworn in at 2pm on Saturday at the Supreme Court.

I would very much like to school Ben Nelson on what his responsibility is with regard to Supreme Court nominations. Whether he likes it or not, Elena Kagan has no disqualifying factor that should cause him to oppose her. But in Upside-Down Contrarian SenatorLand, Senator Nelson is doing exactly that. From his official statement:

July 30, 2010 – Today, Nebraska’s Senator Ben Nelson issued this statement on the president’s nomination of Elena Kagan for the U.S. Supreme Court to fill the seat of retired Justice John Paul Stevens:

“As a member of the bipartisan ‘Gang of 14,’ I will follow our agreement that judicial nominees should be filibustered only under extraordinary circumstances. If a cloture vote is held on the nomination of Elena Kagan to the U.S. Supreme Court, I am prepared to vote for cloture and oppose a filibuster because, in my view, this nominee deserves an up or down vote in the Senate.

“However, I have heard concerns from Nebraskans regarding Ms. Kagan, and her lack of a judicial record makes it difficult for me to discount the concerns raised by Nebraskans, or to reach a level of comfort that these concerns are unfounded. Therefore, I will not vote to confirm Ms. Kagan’s nomination.”

Supreme Court nominations are not a question of "Nebraskans' concerns". They are not a popularity contest. This is why, by the way, Alito and Roberts slithered onto the court. Despite their politics, they had nothing in their history to disqualify them.

As far as judicial experience goes, once again Nelson labors under the false impression that a Supreme Court Justice must be disgorged from our Federal Court system -- an impression which is false, harmful, and gave us Alito and Roberts.

It's pretty pathetic when Arlen Specter, Republican-turned-Democrat, has a stronger record of supporting judicial nominees than Ben Nelson. Or unemployment insurance extensions. Or just about any other initiative that isn't Republican.

And hey, Nebraska? I don't really give two whits about your 'concerns'. You and your conservative pals gave us ... Roberts and Alito.

Nameless Cynic: Sometimes you aren't paying attention

Talk to Action: Elena Kagan and The End Times...

Daily Censored: They shoot students, don't they?

Alabama Ass-Whuppin': Tea Party Jesus

Workbench: I for one am not shocked that the stupidest thing ever written about gay sex would appear in the comment thread of TownHall.

Guest round up by Blue Gal; send tips to bluegalsblog AT gmail.

Politics Plus: GOP supports banksters who starve children.

Black Magpie Theory: Why the grudge against Sharron Angle is personal.

Empty Wheel: A curious way to celebrate Independence Day

MadKane: Orrin Hatch is why Elena Kagan has no judicial experience.

Pruning Shears: Why Looking Back Matters

Guest round up by Blue Gal. Send tips to bluegalsblog AT gmail.

Distributor Cap: Let the unemployed eat dog food.

Democurmudgeon: 4th of July ruined, I tell you!

William K Wolfrum: I for one and shocked, shocked! that Mel Gibson continues to be a racist sexist douchebag.

Harding "Institute": In Pol-lywood, ya gotta have "allegations" of a sex tape, is all.

Blog Note: Majikthise (Lindsay Beyerstein) has moved to Big Think. Check it out and bookmark.

Round up by Blue Gal; send tips to bluegalsblog AT gmail

Yesterday's media heroine has to be Patricia Murphy of Politics Daily, who yesterday on Fox managed to make Sean Hannity look like buffoon and a tool. Of course, Hannity does this to himself every day, but Murphy gave it a little extra edge.

First, she flatly knocked down Hannity's little right-wing talking point about Elena Kagan purportedly "kicked the military off campus" at Harvard (she of course did did no such thing).

But the most delicious moment was this one:

Murphy: Let's be really, really honest here. There are members of the Tea Party -- it's a tiny, tiny minority -- members of the Tea Party, and I've seen them, who compare President Obama to Hitler. I've been there and seen it, I've been on this show --

Hannity: I've not seen it.

Murphy: He's been compared to the Khmer Rouge, and to Nazism, while I've been here, this is just common cultural --

Hannity: Whom compared him to that?

Murphy: Tucker Carlson! When I was sitting right here, on this show!

Hannity: [red-faced] Did you disagree with him?

Murphy: I did disagree with him.

Of course, if you go back and look at that clip now, it's worth noting that Hannity did not.

I have high hopes for Sen. Al Franken, who never stops fighting for the things he believes in. How refreshing that a freshman Senator refuses to shut up and sit down, instead putting himself in the forefront of progressive fights:

Republican senators and conservative jurists found themselves on the defensive after Sen. Al Franken (D-Minn.) blasted "conservative activism" on federal courts.

Franken, in a major speech Thursday evening before the American Constitution Society, sought to set the stage for a summer confirmation battle in the Senate over President Barack Obama's pick, Elena Kagan, to join the Supreme Court.

The first-term senator launched a full-throated attack on originalism, the judicial philosophy often upheld by conservatives as an example for model nominees for the federal courts.

"Originalism isn’t a pillar of our constitutional history. It’s a talking point," Franken said, adding a jab at Chief Justice John Roberts for his famous comparison between judges and baseball umpires during Roberts's confirmation hearings.

"How ridiculous," Franken said. "Judges are nothing like umpires."

The Senate is set to take up the Kagan nomination in the Senate Judiciary Committee, on which Franken serves, later this month.

With the battle over Kagan and other judicial nominees having stalled in the Senate, Franken also took a moment to castigate GOP filibusters of Obama's court picks.

"The Republican obstruction that is standing between you and the work you’ve agreed to do for your country is unacceptable. And we will continue to fight it," Franken said, apologizing to Goodwin Liu and Dawn Johnsen, the president's picks for a circuit court spot and director of the Office of Legal Counsel, respectively, who were both in the audience.

Amos Lee-Soul Suckers

Did you believe them

When they told you they discovered you

And that everything is free as long as you do what they tell you to

You think it's true

But nothing could be further from the truth, my love

Did you even listen

When they told you to change your name

And that nobody wants honesty when looking at a perfect frame

Play the game

It's a particularly uninspired line up for the Sunday shows. By the sheer number of Judiciary Committee members scheduled (Chairman Pat Leahy, Ranking Minority Member Jeff Sessions, Chuck Schumer, John Kyl and Dianne Feinstein) that Supreme Court Justice nominee Elena Kagan will be the topic of choice. Elsewhere, Pennsylvania Senate Democratic rivals Arlen Specter and Joe Sestak face one another on State of the Union. And if you're looking for something a little on the lighter side, former First Lady Laura Bush will be on Fox and Friends to pimp her new book.

ABC's "This Week" - Sens. Patrick Leahy, D-Vt., and Jeff Sessions, R-Ala.

CBS' "Face the Nation" - Sens. Dianne Feinstein, D-Calif., and Jon Kyl, R-Ariz.

NBC's "Meet the Press" - Senate Minority Leader Mitch McConnell, R-Ky.; Sen. Chuck Schumer, D-N.Y.

NBC's "The Chris Matthews Show" - Panel: Andrew Sullivan, Katty Kay, Joan Biskupic and Pete Williams. Topics: The Goldilocks Pick: Why Do Liberals Fear Elena Kagan is Just Alright? Why Politics Favors Arizona's Tough Immigration Law

CNN's "State of the Union" - Sens. Arlen Specter, D-Pa., and Bob Bennett, R-Utah; Rep. Joe Sestak, D-Pa.

CNN's "Fareed Zakaria GPS" - Prime Minister of Greece, the David Cameron and Nick Clegg coalition in Britain and a roundtable discussion on the global economy with Larry Summers.

"Fox News Sunday" - Former first lady Laura Bush and former House Speaker Newt Gingrich.

So, what's catching your eye this morning?