Supreme Court nominee Elena Kagan (left) is reaffirming her support for the death penalty, saying its constitutionality is "established law."
Under questioning by Democratic Sen. Dick Durbin at her confirmation hearing, Kagan says she has a different outlook than her mentor, the late Justice Thurgood Marshall, who dissented in every death penalty case based on moral grounds.
Kagan says she believes the death penalty is "settled precedent going forward" and generally should not be disrupted.
Source: Associated Press, June 29, 2010
Further reading: "
The Generalissima Dances" on Jeff Gamso's blog "
For The Defense". Excerpts:
"
Anything the Supreme Court has ever decided is, the Generalissima tells us, "precedent" and "settled law." No one has pressed her particularly hard, and she's declined to give any sort of meaningful answer, on whether or when "precedent" and "settled law" should give way - be sharply limited or broadly expanded or overruled.
The long-time professor won't "grade" the work of her she-hopes-will-soon-be colleagues, so we can't actually learn whether she thinks any of those matters of "precedent" and "settled law" were right.(...)
She doesn't want to "grade" the work of those she hopes will be her future colleagues. I don't blame her. It could make for uncomfortable days on the Court if she says that every one of the eight folks with whom she hopes to work for a couple of decades frequently act like dishonest charlatans whose work is ideologically driven, fatuous, and out of step with both the real world and any honest recognition of what the Constitution and the law are really about. (...) But to say what she thinks? Now? About the issue itself? In general terms? There's no reason to refuse. (..) I actually suspect that generally honest answers to point of view questions from the kinds of people likely to get nominated wouldn't end up making a difference.
Let's say that Kagan said she thought Roe v. Wade was right? Surely she does. Roe is a secret litmus test for every nomination President. (Secret, because the question isn't asked, but the answer is made clear.) Would it change a single vote in the Senate? Maybe she'd pick one up from someone who appreciated the candor, but I doubt it. My guess is that it comes out exactly the same.
And I think that's true with most issues. The broad swath of what's generally acceptable constitutional disagreement may lead to some hand wringing or cheering, but falling anywhere within it won't likely change a vote. And, frankly, it's hard to imagine today a nominee who's really outside that framework. Anyone who's going to say that Brown v. Board of Ed should be reversed at the first opportunity won't get nominated.
I guess my point is that at least some level of forthcomingness and honesty would be good and wouldn't actually hurt. It might make confirmation harder. It wouldn't shut it down. "
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