Election mystery: Maxine Waters committee opposed new chief justice

By Bob Egelko

There were no surprises in the voters' decision Nov. 2 to retain every state Supreme Court and appellate justice on the ballot, nearly all with majorities of at least 2-1. Still, there's one small but baffling mystery related to the judicial election: a Democratic congresswoman's call for the defeat of Republican-appointed justices, including Chief Justice nominee Tani Cantil-Sakauye.

Citizens for Waters, the slate mail committee affiliated with Rep. Maxine Waters, D-Los Angeles, sent cards to her constituents in the heavily African American district endorsing various candidates, who paid for their listings. The mailer also urged votes against Cantil-Sakauye, Gov. Arnold Schwarzenegger's pick to replace retiring Chief Justice Ronald George; Justice Ming Chin, appointed by Gov. Pete Wilson, and nine Republican-appointed members of the Court of Appeal in Los Angeles.

Democratic appointees, including Supreme Court Justice Carlos Moreno, received endorsements, as did appellate Justice Jeffrey Johnson, a Schwarzenegger appointee who is African American. As the Los Angeles Metropolitan News-Enterprise noted in the only press report on the mailer, none of the judicial endorsements was paid for -- not surprising, since there was no organized campaign for or against any of the justices.

The mailer obviously didn't tip the election, though it might have had a local impact because Cantil-Sakauye and Chin each polled two to three percentage points lower in Los Angeles County than statewide. What's harder to decipher is why Waters, whose work has virtually nothing to do with the state courts, would be the only major-party politician in California to publicly oppose any of the justices.

One plausible-sounding reason is that a Democrat might want to create some judicial vacancies for Democratic Gov.-elect Jerry Brown to fill on courts that are now dominated by Republicans. But Brown, as attorney general, voted to confirm Cantil-Sakauye and every other Schwarzenegger appointee he considered, and his campaign took no position in the judicial elections. Neither did the state Democratic Party. The LA County Democrats endorsed Moreno but didn't oppose the Republican appointees.

Partisan campaigns against judicial appointees aren't unknown, even in states like California in which Supreme Court and appellate justices appear on the ballot without party labels for yes-or-no retention votes. Three Iowa Supreme Court justices who joined a unanimous decision legalizing same-sex marriage were voted out of office Nov. 2, and back in 1986 Chief Justice Rose Bird and two other Brown appointees were unseated in a campaign led by prosecutors and prominent Republicans, including Gov. George Deukmejian.

Does Waters think the state's higher courts should be cleansed of Republican appointees? Hard to say because her press spokesman, Michael Levin -- who was asked to relay the inquiry to Waters -- replied only, "I don't think our office will be commenting on that." Calls to Citizens for Waters, headed by Karen Waters, the congresswoman's daughter, weren't returned.

E-mail Bob Egelko at begelko@sfchronicle.com.

Posted By: Bob Egelko (Email) | November 12 2010 at 06:15 PM

Reader poll: Would you vote to confirm Kagan?

The Senate is voting today on President Obama's nomination of Elena Kagan to the Supreme Court. California Sens. Dianne Feinstein and Barbara Boxer have announced their support for her confirmation. How would you vote?

Posted By: Richard Dunham (Email) | August 05 2010 at 11:27 AM

Bob Egelko: Republicans say Kagan is too deferential to Congress

There hasn't been much drama in Elena Kagan's confirmation to the Supreme Court, which is scheduled to take a step forward Tuesday with a vote in the Democratic-controlled Senate Judiciary Committee. But it hasn't been a completely predictable process either.

Take Kagan's exchange with Republican Sen. John Cornyn of Texas at a recent hearing.

It looked routine enough. Cornyn was asking the nominee, as Republicans often do, how she felt about the court's authority to override the judgment of Congress when it passes laws regulating the economy. There's a standard line of questioning at confirmation hearings about judicial activism and legislating from the bench, and Kagan gave the standard answer: Within some vaguely defined limits, "the court has given Congress broad discretion."

But Cornyn had bigger fish to fry -- specifically, the new federal health care law. Where Republicans have usually argued that judges should leave federal laws alone, they're saying that in this case, only the courts can save Americans from congressional overreaching. Nearly half the states, under Republican leadership, have sued to challenge a provision requiring the uninsured to buy private health coverage, with the help of new federal subsidies, or pay a penalty to the government. Their argument depends on the courts' willingness to clamp new restrictions on Congress' constitutional authority to regulate interstate commerce.

Kagan tiptoed around the issue, noting that the Supreme Court has established some restrictions on congressional regulatory power -- striking down, for example, a federal law that banned possession of guns near schools -- but otherwise left the economic judgment calls to elected lawmakers. Cornyn, a former Texas Supreme Court justice, wasn't satisfied. If the Supreme Court "is not going to constrain the power grabs of the federal government and constrain Congress," he said, it's time to amend the Constitution.

And sure enough, when Cornyn later announced his opposition to Kagan, he said she had been "unable to articulate limits" on Congress' power over interstate commerce. Other Republicans are demanding that Kagan promise to disqualify herself from any case involving the health care law, despite her insistance that she wasn't involved in any Obama administration planning for defense of the law.

Senate Democrats, meanwhile, spent much of the confirmation hearing lambasting John Roberts' court for upsetting federal laws and decades of precedent with rulings that lowered antitrust barriers and opened the door to big corporate campaign contributions.

As the vote on Kagan approaches, then, the scripts are familiar -- one side is calling for greater judicial vigilance against congressional abuses, while the other side urges greater judicial restraint -- but the roles have switched. And if control of Congress shifts this November, who's to say that those roles won't switch back?

Posted By: Bob Egelko (Email) | July 19 2010 at 04:56 PM

Reader poll: Confirm or reject Kagan?

California's two senators are certain "yes" votes on Elena Kagan's nomination to the Supreme Court. But what about you? How would you vote on President Obama's choice to the high court?

Posted By: Richard Dunham (Email) | July 01 2010 at 11:31 AM

Kagan confirmation: Day two photo gallery

Hearst Newspapers photographer Meredith McDermott spent Tuesday covering the second day of the Supreme Court confirmation hearings of Solicitor General Elena Kagan.

Posted By: Richard Dunham (Email) | June 30 2010 at 05:14 AM

A viewer's guide to the Kagan confirmation hearing

Did you know that there's a Supreme Court confirmation hearing today?

You'd have good reason to answer no. In the six weeks following Solicitor General Elena Kagan's nomination to the Supreme Court by President Obama, there were just 11 stories on the network evening news on the former Harvard Law School dean.

And even on Capitol Hill, Kagan's hearing seems destined to be overshadowed by the confirmation hearing of Obama's pick to direct the Afghan war, Gen. David Petraeus, scheduled to start Tuesday.

SPECIAL REPORT: THE KAGAN NOMINATION >>> Vote in our reader poll: Do you favor or oppose Kagan's nomination? >>> Photo Gallery: Kagan's life and career >>> Some liberals worry nominee might be closet moderate >>> Conservatives divided over Kagan's nomination >>> Videos of the nominee in action >>> Bork had lasting impact on Supreme Court confirmation process >>> List of Supreme Court nominees with no judicial experience Today's report: A viewer's guide to the confirmation hearings Six senators to watch at the hearings

But whether anyone is paying attention or not, Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., is set to gavel the high-stakes Supreme Court confirmation hearing to order this afternoon.

Despite the lack of attention, Kagan's nomination could prove pivotal to the high court's future. The 50-year-old New York native has been chosen to replace the court's most consistent liberal, Justice John Paul Stevens, so even a modest shift to the center by Kagan could tilt the closely divided court significantly to the right.

With that in mind, liberal groups are nervous about Kagan's lack of a judicial record on issues ranging from abortion to privacy. Rep. Louise Slaughter, D-N.Y., wrote a letter to the Senate Judiciary Committee describing as "troubling" a memo Kagan wrote in 1997 to President Bill Clinton urging him to back a ban on so-called "partial birth" abortions.

Conservative legal scholars are divided, with prominent legal scholars such as former Solicitors General Ted Olson and Ken Starr supporting her nomination. Starr, former dean of Pepperdine law school, calls her academic writings "simply superb." But grassroots conservative groups strongly opposed to Kagan have turned up the volume in the days leading up to the hearings.

"We agree with Kagan that the highest court in the land is no place for pure political activists and amateurs in need of on-the-job constitutional training," says Andrea Lafferty, executive director of the Traditional Values Coalition.

The final result on the Senate floor seems a foregone conclusion. Both of California's senators are certain "yes" votes. Republicans — even Kagan skeptics — say that she's headed for confirmation unless she commits a major blunder in coming days. But that doesn't mean there won't be tough questions, and eventual opposition, from most Senate Republicans.

Still, the Kagan hearings will contain far more than predictable political posturing. Here are five things to watch for during the hearings:
Read More 'A viewer's guide to the Kagan confirmation hearing' »

Posted By: Richard Dunham (Email) | June 28 2010 at 06:11 AM

Conservatives divided over Kagan; Starr vs. Meese

This report was written by Alan Blinder of the Washington bureau.

For the first 16 months of Barack Obama's presidency, conservatives had a common rallying point: opposition to most anything the White House sought.

Obama's nomination of Solicitor General Elena Kagan to the U.S. Supreme Court has changed that.

AP file photo Former Pepperdine law school dean Kenneth Starr

As Kagan's confirmation hearings begin Monday, conservatives are divided on the merits of her nomination.

Prominent conservative legal thinkers from Kenneth Starr, the solicitor general under President George H.W. Bush and an independent counsel who investigated President Bill Clinton, to Miguel Estrada have expressed support for Kagan. In backing Kagan, they cite her career in academia and her tenure as solicitor general.

Many Senate Republicans, though, who will ultimately vote on the nomination, have indicated reservations, citing Kagan's lack of experience on the bench. Sen. John Cornyn, R-Texas, a member of the Senate Judiciary Committee, said, "It's hard to really see what she brings to the life of the Supreme Court . . .other than her political experience."

Other conservatives also are leaning toward the ``no'' column.

Ed Meese, the California conservative who served as attorney general in the Reagan administration, said in an interview that Kagan is an "anti-constitutionalist," meaning she "feel(s) judges should substitute their own ideas . . . for what the Constitution actually says." Meese is an executive with the conservative Heritage Foundation.

Some Republicans have sought to play down the division.

"Every time we have a nomination, you have some who are known as Republicans or conservatives who take the other side," said Sen. Jeff Sessions of Alabama, the senior Republican on the Senate Judiciary Committee. "There is nothing unusual about the number of conservatives supporting her."

One conservative, Charles Fried, a solicitor general in the Reagan administration and a professor at Harvard Law School who worked with Kagan during her tenure as dean there, said he doesn't think Kagan would be an automatic liberal vote on the court.

"On the big things, one can expect a really independent take which will not just repeat all the slogans that we've seen on the left and on the left of the court," Fried said.

Sen. Orrin Hatch, R-Utah, a former chairman of the Senate Judiciary Committee, wasn't as certain. "Deep down, she's going to be a liberal," he said in an interview. "But, I hope he (Fried) is right."

Meese was blunter. "I think, based on what we know about her, she would be a 100 percent reliable liberal vote," he said.

Some conservatives, like Meese and Sessions, interpret her selections of legal role models -- said to include retired federal appellate judge Abner Mikva, the late Justice Thurgood Marshall and Aharon Barak, a former president of the Supreme Court of Israel -- as clues about what she would be like as a judge.

"A person's heroes tell a great deal about who they really are," said Sessions, who described Barak, Marshall and Mikva as "the vanguard of the leftwing judicial activist movement."

Kagan has "a very clear, liberal, political record," he said.

Starr, while declining to characterize any significance of Kagan's judicial role models, said Kagan has left a paper trail, despite her lack of judicial experience.

"Elena obviously has no judicial opinions, but she does have academic writings, and some of the writings, I happen to think, are simply superb," he said.

Starr, a former Pepperdine law school dean who now serves as president of Baylor University in Waco, Texas, said he supports Kagan because of her experience and the president's right to choose his appointees, not because he expects to share identical legal opinions with her.

"When a president has the opportunity to appoint a member of the Supreme Court, that choice carries with it a heavy presumption," Starr said, noting he would be quick to support a qualified nominee, even if he does "not agree with the person judicially on a variety of issues."

He also said that Kagan's experience is equal to past members of the high court. "Someone who has served in her various capacities, even without judicial experience, is as qualified as some of the finest justices ever to serve," Starr said.

The question of experience is a touchy issue for some Republicans.

Cornyn, who has expressed skepticism about Kagan's lack of a judicial background, was a vocal supporter of President George W. Bush's 2005 nomination of White House counsel Harriet Miers to replace retiring Justice Sandra Day O'Connor.

Miers, like Kagan, had no judicial experience.

However, the Texas Republican sees a distinction. ``Harriet Miers really did bring in unprecedented legal experience," Cornyn said, referring to her years in private law practice. Kagan, on the other hand, does not bring either tenure on the bench or "practical lawyering experience,'' he said.

Even Republicans who are wary of Kagan's nomination concede she is likely to be confirmed with at least some support from Senate Republicans. Sen. Saxby Chambliss, R-Ga., said, "At the end of the day, I feel certain she will have (some) Republican support."

Posted By: Richard Dunham (Email) | June 27 2010 at 08:12 PM

Some liberals worry about Kagan's record

This report was written by Dan Freedman of the Washington bureau.

Conservatives are the chief skeptics about Supreme Court nominee Elena Kagan, but liberals have worries of their own.

Liberals, especially civil liberties advocates, fear that the 50-year-old nominee who now serves as the Obama administration's solicitor general is insufficiently committed to their causes.

Objections from the left focus mostly on Kagan's legal advocacy for policies inherited from President George W. Bush to keep terrorism suspects and war prisoners in American custody overseas and out of U.S. courts.

``Kagan's stated commitment to due process and judicial review for detainees (has) not been reflected in positions she has taken as solicitor general on behalf of the Obama administration,'' said the ACLU in a 30-page review of Kagan's record.

Since becoming solicitor general last year, Kagan has represented the Obama administration in court against detainees seeking release from U.S. prisons in Guantanamo Bay, Cuba, and Afghanistan.

In one case, she opposed release from Guantanamo of Uighur prisoners from a remote province in northwest China, even though the U.S. government had conceded they were not enemy combatants.

In another case, she opposed giving detainees in Afghanistan access to U.S. courts because Afghanistan is a war zone.

Kagan won both cases.

But as dean of Harvard Law School prior to becoming solicitor general, Kagan had signed letters opposing tough Bush administration positions on detainee rights and representation by lawyers.

In February, Kagan argued before the Supreme Court that a lawyer who filed a brief on behalf of an organization identified by the U.S. government as terrorist could risk criminal prosecution. Last week, the high court ruled in favor of the government's position, but sidestepped the point that Kagan had raised.

``I am sad to say that . . .Kagan's record indicates a troubling support for expanding presidential powers, something we must be vigilant about,'' said Vincent Warren, executive director of the Center for Constitutional Rights, which has represented detainees in court.

``President Obama would appear to be seeking to appoint a Supreme Court (justice) who will endorse his policies and appease conservatives.''

Kagan's defenders say there's a world of difference between her own legal views and those she espouses on behalf of the Obama administration.

Kagan herself is not giving interviews in anticipation of Senate confirmation hearings, which begin Monday. But in an interview with the National Law Journal in May, Kagan said that as solicitor general, she ``represents the long-term interests of the United States and (in) a great many matters, those interests are stable from administration to administration. The client, you might say, doesn't change.''

With conservatives on the Senate Judiciary Committee expected to cast her as a left-liberal ideologue with hard positions favoring abortion rights and gun control, liberals might point to some of Kagan's detainee arguments as a way of framing her as a centrist.

``There's no question that moderate positions in her record will help her,'' said a Democratic congressional aide, who asked not to be identified. ``Some of positions she's taken are not kneejerk left, and that's going to be useful in the confirmation (hearings).''

Posted By: Richard Dunham (Email) | June 27 2010 at 02:46 PM

Kagan: Cal ruling on religious landlady 'outrageous'

When the California Supreme Court ruled in 1996 that a landlady had to rent an apartment to an unwed couple despite her religious objections to non-marital sex, civil rights groups and gay-rights advocates applauded the court's commitment to anti-discriminaiton laws. But a number of religious organizations, mostly conservative, saw the ruling as a threat to individual freedom and backed an appeal to the U.S. Supreme Court.

It turns out that they had an ally in the Clinton administration, a lawyer in the White House counsel's office named Elena Kagan.

The court's reasoning "seems to me quite outrageous," Kagan said in an August 1996 staff memo, one of a mound of documents released to senators in advance of Monday's Judiciary Committee hearing on her nomination to the U.S. Supreme Court.

She said the ruling endangered religious freedom in California, and the Clinton administration should file papers supporting the landlady's appeal. The administration stayed out of the case, the appeal was denied and the ruling remains on the books. Read More 'Kagan: Cal ruling on religious landlady 'outrageous'' »

Posted By: Bob Egelko (Email) | June 26 2010 at 03:15 PM

Elena Kagan's Upper West Side Story

This report was written by Dan Freedman of the Washington bureau.

College photo Elena Kagan in 1977

Politically speaking, the Manhattan neighborhood that nurtured Supreme Court nominee Elena Kagan is a conservative's worst nightmare. The new health-care reform law? Doesn't go far enough. Don't ask, don't tell? It should be don't ask, period, paragraph, end of story.

I know the culture well, having been raised a scant 12 or so blocks from where Kagan grew up at West End Avenue and 75th Street. The term ``New York Jewish intellectual'' has a clich&#233d ring to it, a Woody Allen laugh line deriding people who sent their kids to ``socialist summer camps.'' But it pretty much summarizes the kind of family that dominated the Upper West Side's social and political landscape -- liberal at a minimum, and often very much farther to the left.

President Obama's standard for judicial appointments is straight forward: He wants nominees with ``real world'' experience who look at the law ``as it affects the lives of ordinary people.''

The unstated question Kagan may face when she goes before the Senate Judiciary Committee and its potentially hostile Republican questioners from Texas, Alabama, Utah and elsewhere in heartland America: Is the Upper West Side part of the ``real world''?

Kagan's father, Robert, was a lawyer who helped tenants whose rental apartments were being turned into not-always-affordable co-ops. He also was chairman of Community Board 7, one of many such quasi-official entities set up to give average New Yorkers a say in big projects going up around them. Her mother, Gloria, was a public school teacher. Kagan's parents are deceased; her two brothers carry on their mother's tradition as public school teachers.

''Where I grew up _ on Manhattan's Upper West Side _ nobody ever admitted to voting for Republicans,'' Kagan wrote while an undergraduate at Princeton University. Those elected to office were ''real Democrats -- not the closet Republicans that one sees so often these days but men and women committed to liberal principles and motivated by the ideal of an affirmative and compassionate government.''

Starting in the 1950s, ``real'' Democrats, including my mother, organized themselves into brigades of ``reform'' Democrats in opposition to the old Tammany Hall machine. In 1960 they managed to elect one of their own, William F. Ryan, to Congress -- a watershed event in neighborhood history.

Ryan was a grinning Irish-American reformer in a sea of Jewish voters. He did a fine job of representing the Upper West Side's brand of liberal politics, opposing the Vietnam War early on, marching for civil rights in the South, and advocating admission of mainland China to the United Nations -- a radical position in the early 1960s.

His mantle is carried today by the neighborhood's current representative in Congress, Rep. Jerrold Nadler, D-N.Y., whose voting record is rated zero by the American Conservative Union, and 95 percent by the liberal Americans for Democratic Action.

Elena Kagan and many of this culture's children emerged from the Upper West Side political cauldron as committed to making the world a better place for all, mindful that everyday people can affect change as teachers, doctors, lawyers -- and, yes, even journalists -- and make government work for the common good.

Kagan certainly has blazed her own trail as the first woman to serve as dean of Harvard Law School and U.S. Solicitor General. Most conservatives assume that, if confirmed, she would be a reliable liberal vote on the conservative-leaning high court. But many on the left fear that she might be a closet, gasp, centrist.

Liberal interest groups were unabashed in their preference for someone other than Kagan to play the role of chief antagonist against conservative heavyweight Justice Antonin Scalia. In going her own way, Kagan may have had to shake off at least some of the Upper West Side's orthodoxies.

Let's face it, at least some of the neighborhood's inherited wisdom has not panned out. The United States is not always wrong in foreign affairs. The Berlin Wall was not the result of Western provocation, and blame for the Cuban missile crisis could not be laid solely at JFK's doorstep at the White House.

But on the other hand, the Upper West Side was an incubator of the civil rights movement, supplying its dollars and human power to the cause of integration. Andrew Goodman was a neighbor of ours on 86th Street and taught me and my brother to ride bikes. He became a civil rights martyr when he was killed by Ku Klux Klaners (including a deputy sheriff) along with Michael Schwerner and James Earl Chaney in 1964 outside Philadelphia, Miss.

My father was a supporter of health care reform going back to his days in medical school in the late 1930s and early 1940s. At age 93, he could scarcely believe he had lived to see his dream enacted into law.

On many issues, the Upper West Side gestalt simply fell flat. But on many others, the outlook was ahead of its time. As my mother, age 88, likes to say, ``we weren't wrong about everything.''

Posted By: Richard Dunham (Email) | May 14 2010 at 12:04 AM