Friday, July 23, 2010

We the People

Will Elena Kagan be the next Supreme Court justice?

This is the first of a series of columns by Hailey attorney and former adjunct law professor Theodore "Ted" Graham on current issues involving the U.S. Constitution that have been and will soon be decided by the Supreme Court of the United States. The columns are intended to be merely informative and certainly not exhaustive.

Important issues generally arise in the context of one or more of the amendments to the Constitution. It has been the "rights" of the people that have received critical attention—one reason is that many of the amendments provide what the federal government cannot do to you. This charter of negative freedoms can be traced to the concerns of the 13 founding states in granting untested authority to a federal system.

Although there are constant efforts by commentators to make political points regarding important court decisions, this series of will not do so.


The U.S. Supreme Court has just completed its 2009-2010 term. It will not resume work until this October. Recently before the U.S. Senate has been the nomination of Elena Kagan, former Harvard Law School dean and currently President Barack Obama's solicitor general, to replace retiring Justice John Paul Stevens.

There has never been a serious doubt Ms. Kagan would be confirmed under the Senate's exclusive power of advice and consent granted to it by Article II, Section 2 of the Constitution. It was Ms. Kagan who candidly expressed the vacuity of the Senate's role here. The nomination by the president almost always is confirmed by the Senate.

The most notable exception was the rejection of Judge Robert Bork ("Borked") in 1987, who, it can be fairly stated, sank his own ship with his unabashed candor. A nominee can thus today be expected to be very cautious and well-schooled in these hearings, even though it can come as no surprise when he or she votes entirely differently as a justice. She will take her place along with two other female justices on the Court.

Some of us can remember President Ronald Reagan's nomination of the very first woman for the Supreme Court, Justice Sandra Day O'Connor in 1981. She finished at the top of her 1952 Stanford Law School class but could then find only employment as a secretary. It was not until the late 1960s that any of the major law firms had its first female attorney. Today, many law schools have a majority of female students. The practice of law is today an outstanding profession for women. How far we have come!

The next of these columns will deal with the import of the court's recent 5-4 decisions involving the Second Amendment's right of the people to keep and bear arms.

Questions or comments can be e-mailed to Mr. Graham at:

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