Supreme Court

ICT Article on Elena Kagan Supreme Court Nomination

Matthew L.M. Fletcher

From ICT:

WASHINGTON – Conservative criticism of Elena Kagan’s nomination to the Supreme Court was all but guaranteed.

But critiques are also coming from more unlikely sources, as a groundswell of progressive scholars question her past commitments to minorities. Of special interest to Indian country, her positions on tribal and Indian legal issues are unknown, and she has lacked engagement on some major Native topics.

Kagan, 50, was nominated by President Barack Obama May 10 to replace retiring Justice John Paul Stevens. She currently serves as Solicitor General of the United States, the first woman to hold that post. Previously, President Bill Clinton appointed her as Associate White House Counsel.

Kagan has never been a judge, and she has published relatively few scholarly articles. Most analysts have predicted that she will likely be able to be confirmed by the Senate due, in part, to her non-controversial background. Her lack of public stances on hot-button issues, like abortion, is believed to have played a role in Obama’s selection of her.

Before serving in government, Kagan was the dean of Harvard Law School and a professor of law there. She was also previously a professor of law at the University of Chicago.

It’s her service as a leader at Harvard that’s got some minority advocates, including Native Americans, concerned.

Of the 32 tenured and tenure-track academic hires Kagan made while dean, a position she held from 2003 – 2009, only one was a minority, of Asian descent. Of the 32, seven were women. The rest were white males. None of Kagan’s hires were Native American.

Compared to other institutions of Harvard’s pedigree, Kagan’s hiring was lax in its inclusion of minorities. At the same time, she was credited with breaking a logjam at the institution in hiring conservative scholars.

Part of the hiring issues surrounding Kagan involve her failing to hire a permanent scholar to fill the Harvard Law School’s Oneida chair, which has received substantial financial support from the Oneida Indian Nation of New York. The position was created in 2003, under the condition that Harvard hire a full-time, tenured faculty member dedicated to Indian law.

Many Indian scholars were touted by tribes and Indian organizations during Kagan’s tenure as candidates to permanently hold the Oneida chair, but action never occurred.

“That is a bitter shame, since numerous American Indian law profs are objectively qualified to be tenured at Harvard,” said Matthew L.M. Fletcher, director of the Indigenous Law Center at Michigan State University.
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SCOTUSBlog Picks Sharp v. United States as a Petition to Watch

Matthew L.M. Fletcher1 Comment

Well, here we go again. This is one of those “gut reaction” cases where it seems like an innocent non-Indian property owner is being subjected to liability or some other taking because of “ancient” Indian tribal property right. In virtually all other areas of law, this would be a no-brainer “deny.” There’s no split, and there never will be — unless the United States starts bringing more and more trespass actions against non-Indians on behalf of tribes (and how likely is that to happen, exactly?). It may still be denied, as it should, but the “gut reaction” of  several of the Justices, coupled with a distaste toward Indian rights, might be enough to make this certworthy. Also, maybe (who knows?) it matters that the opinion comes from Judge Fletcher (Betty this time). We’ll find out Monday.

Here are the materials (from SCOTUSblog):

Title: Sharp v. United States
Docket: 09-820
Issues: (1) Whether, as a matter of federal law, when owners of real property abutting navigable waters lawfully erect a shore defense structure on their own uplands, the shore defense structure constitutes a trespass against the tideland owner if subsequent erosion causes the mean high water line to contact the seaward face of that shore defense structure; (2) whether an owner of upland property is strictly liable under Section 10 of the Rivers and Harbors Appropriation Act of 1899 for erecting a shore defense structure without a federal permit when, at the time of its original construction, the shore defense structure was erected entirely out of navigable waters of the United States; and (3) whether the general disclaimer in the Washington Enabling Act that disclaims title to “all lands lying within [the state] owned or held by an Indian or Indian tribes” is sufficient to demonstrate the requisite Congressional intent to overcome the presumption that tidelands are held in trust for the State of Washington.

Sharp Reply to OSG Cert Opposition

Matthew L.M. Fletcher

Here: Sharp Reply. Other briefs here.

We’ll see later if this is a petition to watch on SCOTUSblog. It is exceptionally rare that the Court grants cert in a civil case where the government is in opposition, except in Indian and race cases….

What Does a Justice Kagan Mean for Indian Country?

Matthew L.M. Fletcher4 Comments

The answer at this point is — nobody knows, or could possibly know.

Solicitor General Kagan has almost no paper record of scholarship on Indian law, no judicial opinions, and little else in the way of a paper trail. Her most intimate association with Indian Country is her membership (now likely former) on the board of the American Indian Empowerment Fund (as noted here), which probably came about as a concomitant duty related to her Harvard deanship and duties in filling the Oneida Chair at Harvard Law. As is well known, Harvard Law has had some difficulty in completing the requirements of the Oneida endowment (hiring a full-time Indian law prof), as the Chair is always filled by visitors. What this means is anyone’s guess, though some of my former law school colleagues are certain it is a bad thing she had trouble hiring minority law profs.

The only known impact of Kagan’s nomination if she is confirmed, is that she will likely be forced to recuse herself in the 2010 Term’s lone (so far) Indian law case, United States v. Tohono O’odham Nation (No. 09-846). Who knows how that will affect the decision, though the T.O.N. would only have to find four Justices to prevail (as would happen in a 4-4 tie). Once the T.O.N. case is decided, we may hear much more from a Justice Kagan, who perhaps will be tapped write some of the Indian law decisions (as junior Justices often are).

Which leads to my final comment. A Justice Kagan is yet another player from the elite of the legal profession, an elite that rarely has even more than a passing interest in Indian law and Indian Country. From Justice Brennan referring to Indian law cases as “chickenshit” (page 435 of The Brethren), to the modern and open hostility of most Justices to Indian cases, this does not bode well. It could, if a Justice Kagan is open-minded and willing to listen and learn, but more likely than not, she (as do most or all of the other Justices) may find her Indian law assignments a burden. That would be a shame.

Perhaps we’ll see.

NYTs: Obama to Nominate Elena Kagan for the Supreme Court

Matthew L.M. Fletcher

Our post on her Indian law record (lack thereof) is here. Challenges to her record as Harvard dean are here and the White House response is here.

From the NYTs:

WASHINGTON — President Obama will nominate Solicitor General Elena Kagan as the nation’s 112th justice, choosing his own chief advocate before the Supreme Court to join it in ruling on cases critical to his view of the country’s future, Democrats close to the White House said Sunday.

After a monthlong search, Mr. Obama informed Ms. Kagan and his advisers on Sunday of his choice to succeed the retiring Justice John Paul Stevens. He plans to announce the nomination at 10 a.m. Monday in the East Room of the White House with Ms. Kagan by his side, said the Democrats, who insisted on anonymity to discuss the decision before it was formally made public.

In settling on Ms. Kagan, the president chose a well-regarded 50-year-old lawyer who served as a staff member in all three branches of government and was the first woman to be dean of Harvard Law School. If confirmed, she would be the youngest member and the third woman on the current court, but the first justice in nearly four decades without any prior judicial experience.

That lack of time on the bench may both help and hurt her confirmation prospects, allowing critics to question whether she is truly qualified while denying them a lengthy judicial paper trail filled with ammunition for attacks. As solicitor general, Ms. Kagan has represented the government before the Supreme Court for the past year, but her own views are to a large extent a matter of supposition.

Perhaps as a result, some on both sides of the ideological aisle are suspicious of her. Liberals dislike her support for strong executive power and her outreach to conservatives while running the law school. Activists on the right have attacked her for briefly barring military recruiters from a campus facility because the ban on openly gay men and lesbians serving in the military violated the school’s anti-discrimination policy.

Replacing Justice Stevens with Ms. Kagan presumably would not alter the broad ideological balance on the court, but her relative youth means that she could have an influence on the court for decades to come, underscoring the stakes involved.

In making his second nomination in as many years, Mr. Obama was not looking for a liberal firebrand as much as a persuasive leader who could attract the swing vote of JusticeAnthony M. Kennedy and counter what the president sees as the rightward direction of the court under Chief Justice John G. Roberts Jr. Particularly since the Citizens United decision invalidating on free speech grounds the restrictions on corporate spending in elections, Mr. Obama has publicly criticized the court, even during his State of the Union address with justices in the audience.

As he presses an ambitious agenda expanding the reach of government, Mr. Obama has come to worry that a conservative Supreme Court could become an obstacle down the road, aides said. It is conceivable that the Roberts court could eventually hear challenges to aspects of Mr. Obama’s health care program or to other policies like restrictions on carbon emissions and counterterrorism practices.

With all signs pointing to a Kagan nomination, critics have been pre-emptively attacking her in the days leading up to the president’s announcement. Paul Campos, a law professor at the University of Colorado, Boulder, writing on The Daily Beast, compared her to Harriet E. Miers, whose nomination by President George W. Bush collapsed amid an uprising among conservatives who considered her unqualified and not demonstrably committed to their judicial philosophy.

M. Edward Whelan III, president of the Ethics and Public Policy Center in Washington, wrote on National Review’s Web site that even Ms. Kagan’s nonjudicial experience was inadequate. “Kagan may well have less experience relevant to the work of being a justice than any entering justice in decades,” Mr. Whelan wrote.

Ms. Kagan defended her experience during confirmation hearings as solicitor general last year. “I bring up a lifetime of learning and study of the law, and particularly of the constitutional and administrative law issues that form the core of the court’s docket,” she testified. “I think I bring up some of the communications skills that has made me — I’m just going to say it — a famously excellent teacher.”

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Linda Greenhouse on the Importance (Or Lack Thereof) of the Supreme Court

Matthew L.M. Fletcher

Important reading, I think, for those who expect a “visionary” Supreme Court appointment…

From the NYTs:

In Obama’s view, the court is institutionally ill suited to solve the country’s problems. It’s hard to imagine that he wants to invest capital and energy into trying to turn the court into something he believes it was never intended to be.

Used as an epithet, “activist judge” is almost always applied to a judge who has just issued a decision that the speaker doesn’t like. Conservatives affix the label to the Supreme Court of the 1960’s and 1970’s, as well as to anything they object to about the current court. The ink on Justice John Paul Stevens’s letter of resignation last month was barely dry before conservative political candidates and bloggers lined up to bid good riddance to “the liberal activist now leaving the court.”

Exactly what the conservatives’ beef was with Justice Stevens wasn’t clear. Presumably, it was something other than the Stevens majority opinion inKelo v. City of New London, the 2005 decision that left democratically elected local governments free to condemn private property for the purpose of economic development.

Progressives, of course, have been having a field day denouncing the Roberts court’s decision in Citizens United v. Federal Election Commission, which opened the door to unlimited political spending by corporations and overturned recent precedents in order to reach that result. The ruling was “an astounding example of judicial activism,” according to Representative Jerrold Nadler, a New York Democrat who in his capacity as chairman of the subcommittee on the Constitution promptly convened a hearing on the decision’s implications.

Into this linguistic and jurisprudential thicket has stepped the former constitutional law professor Barack Obama, in a conversation with the pool reporters traveling with him on Air Force One last week. Asked whether he would use the pending Supreme Court nomination to push back against “conservative judicial activism,” the president responded with a 200-word soliloquy so densely packed as to lend itself to a variety of interpretations — and misinterpretations.

Characterizing an earlier era’s attacks on the Supreme Court, Mr. Obama said: “It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically. And in the ’60s and ’70s the feeling was, is, that liberals were guilty of that kind of approach.

“What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error,” he continued, and added, “The concept of judicial restraint cuts both ways.”

Was the president in fact, as some have suggested with either glee or dismay, imposing a kind of moral equivalency on the court then and the court now — a kind of “we had our activists and now they have theirs, and both made mistakes, so let’s move on”? Has he fallen into such apostasy as to cast aspersions on the very judicial accomplishments that liberals treasure?

While it’s possible to interpret his words that way, I read them differently. In fact, I think he meant the opposite of equivalency, and I think he said so, albeit cryptically, when he offered this description of what he called conservative jurisprudence: “What you’re seeing is arguments about original intent and other legal theories that end up giving judges an awful lot of power; in fact, sometimes more power than duly elected representatives.” He went on to say that, by contrast, “the core understanding of judicial restraint is that, generally speaking, we should presume that the democratic processes and laws that are produced by the House and the Senate and state legislatures, etc., that the administrative process that goes with it, is afforded some deference as long as core constitutional values are observed.”

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Cert Stage Reply Brief in Jeffredo v. Macarro (Pechanga Disenrollments)

Matthew L.M. Fletcher

Here: Jeffredo Cert Stage Reply Brief

Other materials are here.

“Resisting Federal Courts on Tribal Jurisdiction” Draft Paper Available

Matthew L.M. Fletcher2 Comments

My paper, “Resisting Federal Courts on Tribal Jurisdiction,” forthcoming in the University of Colorado Law Review‘s 2010 symposium issue, is available for download on SSRN.

The abstract (if you want to call it that):

This paper is part of a call for a paradigm-shifting re-examination by Indian tribes and Indian people about their place in the American constitutional structure. For tribal advocates to prevail in the federal judiciary, they must force federal judges to rethink everything they know about federal Indian law. There are at least two ways to do this. Tribal advocates and American Indian law scholars must first establish a baseline of knowledge and information about the realities of Indian Country in the 21st century. This work is nascent and ongoing, if not burgeoning, but frankly is far from enough. A second strategy must be a strategy itself, litigation with an eye toward presenting the best cases before the federal judiciary and the Supreme Court. As any litigator knows, facts win a case, not general truths.

In this paper, I argue a theory of tribal consent and resistance to federal government control embodied in the Supreme Court’s assertion of federal court supervision of tribal court civil jurisdiction. The pure federal common law cause of action expounded by the Supreme Court in 1985’s National Farmers Union v. Crow Tribe is ripe for reexamination, if not outright reversal. Tribes never consented to such a broad-based assertion of federal court jurisdiction, although tribes could consent if asked. I propose methods by which tribes and their appellate counsel can resist such jurisdiction, and perhaps in the same breath establish a meaningful recognition by the Supreme Court of the legitimacy of tribal justice systems.

Comments appreciated, as this is still a draft.

2010 Supreme Court Candidates — Part III — Sidney Thomas

Matthew L.M. Fletcher1 Comment

6. Hon. Sidney Thomas — CA9 Judge.

Judge Thomas, a 1995 Clinton appointee and U of Montana Law School grad, sits on the Ninth Circuit and has an extensive Indian law track record. His record is very mixed, with several opinions from the 1990s that are very hostile to tribal interests; most especially Wilson v. Marchington. However, his track record is considerably better in the 2000s, with the highlight being his opinion in Midwater Trawlers v. Dept. of Commerce.

Rincon Band v. Schwarzeneggar (2010) — voted with Judge Smith in the majority, finding that California negotiated with bad faith in demanding revenue sharing with the Band.

Elliott v. White Mountain Apache (2009) — voted with majority requiring Wanda Jo Elliott to exhaust tribal court remedies.

BNSF v Ray (2007) — voted with majority in per curiam opinion finding no colorable tribal court jurisdiction

U.S. v. Benally (2006) — voted with majority in per curiam opinion affirming MCA conviction over claims that jury voir dire was tainted by race discrimination

U.S. v. Riggs (2006) — joined majority in per curiam opinion affirming MCA conviction over claims of witness tampering

Kalispel Tribe v. Spokane Raceway Track (2005) — joined majority in per curiam opinion affirming injunction favoring Indian tribe.

U.S. v. Birdinground (2004) — joined majority in per curiam opinion affirming MCA conviction over claims that district court invalidly excluded a Crow traditional law expert.

Kahawaiolaa v. Norton (2004) — wrote opinion holding that DOI may exclude Native Hawaiians from tribal recognition process

Navajo Nation v. HHS (2003) — joined unanimous majority in en banc opinion affirming HHS decision not to allow Nation to administer TANF funds.

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Obama and Granholm at UM Commencement

Matthew L.M. Fletcher2 Comments

From SBM:

President Obama and Michigan Governer Granholm

Governor Granholm’s status as a short-lister for appointment to the U.S. Supreme Court gained extra attention this weekend when she appeared with President Obama at his University of Michigan commencement address.  The suspense was heightened on Monday as Legal Times reported that the short list has narrowed, and that the White House has hinted that the decision is coming this week.