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Political commentary from Andrew Malcolm

Category: Supreme Court

Supreme Court drama: Joe Biden is #$%^&#@ whispering again!


Ruh-roh.  Or ruh-#$%^&#@-roh. Joe Biden is whispering again.

You gotta hand it to President Obama. While the West Wing undoubtedly went into panic and hysteria when the vice president whispered into Supreme Court nominee Elena Kagan's ear on live TV Monday morning, Obama didn't flinch.

We know.  We watched the video a few hundred times -- frame by frame -- just to be certain.  It's important to be accurate.

Obama was stoic. Confident. Like a rock.

It wasn't like that time when the president painfully grimaced after Biden mocked Chief Justice John G. Roberts Jr. for messing up the oath of office, as you'll recall.

One check on Twitter was all you need to know. Everyone was on high alert.  

"Okay, who didn't hold their breath when Joe Biden leaned over to whisper in Elena Kagen's ear?" asked Twitter user DanielDurcholz.

Rightly so.

It was just a year ago that Biden did not drop an expletive when whispering to Supreme Court nominee Sonia Sotomayor in a similar ceremony. Nothing much was said during that exchange. Sotomayor said Biden counseled her "not to be nervous."  

But it was the other incidents around a live mic that ratcheted up the alert grid from orange to red. Like the historic signing of the healthcare bill, when Biden noted that "it was a big #$%^&#@ deal."  

Or the #$%^&#@ oops a year ago at an Amtrak station, where he said, "Gimme a #$%^&#@ break."

What was said to Kagan? We don't know. But Biden will be on talk show host Michael Smerconish's radio program Tuesday, and Smerconish is on the case.

"VP Biden on tomorrow's program!," he tweeted.  "Will ask about Kagan nomination and Specter campaign."

By the way, there was other news at Monday morning's event. Like details about the Supreme Court nominee. We didn't quite get to that, but our colleague Johanna Newman has a full #$%^&#@ report here.

-- Jimmy Orr

Photo: Vice President Joe Biden whispers to Supreme Court nominee Elena Kagan. Credit: Associated Press

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The Kagan fight: Will Republicans play politics? How about Arlen Specter? Text, video of Obama's announcement

President Obama introduces Solicitor General Elena Kagan to be his Supreme Court nominee May 10, 2010 by Reuters Pictures

Last week, President Obama met privately at the White House with two Republican senators who could be key in the coming politics over his nomination of Solicitor General Elena Kagan to the Supreme Court: Minority Whip John Kyl of Arizona and Utah's Orrin Hatch.

Both serve on the Judiciary Committee, and both were among the seven Republicans who voted to confirm Kagan for solicitor general in March 2009. The others: Oklahoma's Tom Coburn, New Hampshire's Judd Gregg, Indiana's Richard Lugar and Maine's Olympia Snowe and Susan Collins.

Reaction was muted Monday from the precedent-setting seven. Kyl and Hatch both said that voting on a temporary appointment to solicitor general is different than voting on a lifetime appointment to the Supreme Court. Aside from the likelihood of a longer appointment, it's hard to see why someone qualified to argue before the court wouldn't be qualified to serve on the court.

But Republicans are not the only ones made uncomfortable by the Kagan nomination.

Already, there's a lot of chatter out there about whether Kagan is actually a liberal. Conservative legal scholars certainly think so, blasting her for opposing military recruiters on campus when she was dean of Harvard Law School. But liberals are also unhappy, worrying that she is a centrist on issues such as executive power, free speech, civil liberties and terrorism.

Still, Democrats are unlikely to desert a popular president for selecting a mainstream Supreme Court justice in a year when most of them are up for reelection. One Democrat who may have to squirm a bit over his vote is Pennsylvania's Arlen Specter, a profile in political hypocrisy.

When he was ranking Republican on the Judiciary Committee, Specter voted against Kagan for solicitor general. He sounded like he was having a hissy fit, accusing her of ducking his questions. Later that year, reading the political tea leaves, Specter figured out that he couldn't win the GOP primary nomination, so he switched and became a Democrat.

But now, with Democratic challenger Joe Sestak within striking range in recent polls, Specter is changing his tune on Kagan. "Supreme Court nominations are a little different from solicitor general,” he said during an April 21 appearance on MSNBC. Vowing to take "a fresh look," he added that “I have an open mind.”

As for Sestak, he's already put out a statement suggesting that Specter will see the light before the Democratic primary next week: "Specter may backtrack from his earlier vote on Ms. Kagan this week in order to help himself in the upcoming primary election," Sestak said, "but the people of Pennsylvania have no way of knowing where he will stand after May 18."

Read the text of Obama's and Kagan's remarks during Monday's formal announcement below, as provided by the White House.

-- Johanna Neuman

Photo: Elena Kgan and President Obama. Credit: Reuters

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How Elena Kagan lost a key campaign finance case

Solicitor General Elena Kagan by AP

In her debut as solicitor general for the Obama administration, Solicitor General Elena Kagan lost the first big case on the docket. On a 5-4 vote in January, the Supreme Court overturned 100 years of jurisprudence that had banned corporate and labor money from the political process, finding that the Federal Election Commission should not have stopped the airing of a privately funded campaign attack film "Hillary: The Movie."

President Obama was so upset by the ruling that he issued a written statement from the White House saying the high court had "given a green light to a new stampede of special interest money in our politics." Calling the decision a "major victory" for corporate America and defeat for Americans making small donations to politicians, Obama pledged to "work immediately" with Congress to develop a "forceful response." 

On Monday, he did even better, nominating Kagan to the Supreme Court. There are lots of reasons the nomination makes sense.

At 50, she is the youngest of the known candidates he interviewed, and he called her a "trail-blazing leader" who bridged political differences within the Harvard Law School faculty, where she served as the first female dean, and within the Clinton White House, where she worked in the counsel's office, helping steer Ruth Bader Ginsburg through her Supreme Court confirmation hearings. She would become the fourth female justice in the court's history, a plus for women's advocates, and she was confirmed to be solicitor general on a 61-31 vote, with the support of seven Republican senators.

So we thought it would be instructive to look back on that first case, to see how she lost it.

First, she asserted that the Supreme Court had never questioned the ban on corporate spending. Justice Antonin Scalia replied, "The court may never have questioned the ban, but it's never approved it either."

SCALIA: …"Congress has a self-interest. I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents. Now is that excessively cynical of me? I don't think so."

KAGAN: ..."I think Justice Scalia is wrong. In fact, corporate and union money go overwhelming to incumbents. This may be the single-most self-denying thing that Congress has ever done."

Chief Justice John G. Roberts Jr. challenged Kagan's argument that Congress was justified in banning corporate spending in elections because corporate money is other people's money. Her argument: It is the shareholders' money, and they have no say in how it's being spent in campaigns. Listen here:

ROBERTS: "The idea -- and as I understand, the rationale is we the government, Big Brother, has to protect shareholders from themselves. They might give money, they might buy shares in a corporation, and they don't know that the corporation is taking out radio ads."

KAGAN: "In a world in which most people own stock through mutual funds, in a world in which most people own stock through retirement plans in which they have to invest, they have no choice, I think it's very difficult for individual shareholders to be able to monitor what each company they own assets in is doing, or even to know."

Recognizing that the case may get some attention in the next few months, Obama praised Kagan during his announcement for taking the case as her first before the court, citing it as an example of her commitment to protecting rights.

-- Johanna Neuman

Photo: Elena Kagan. Credit: Associated Press

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Supreme Court shuts its (front) door as security claims another symbol of democracy (text of Breyer dissent)

Supreme Court's main entrance in 1958 by AP Photo
It was the last symbol of a free society. Now it is the latest victim of terrorist threats.

For generations, Americans looking to the U.S. Supreme Court as their last judicial appeal could climb the 44 marble steps leading to its front door and pass through the giant bronze doors, crossing under the words engraved above the stately columns, "Equal Justice Under Law."

Those majestic steps have served as a magnet, a natural draw for protests of everything from capital punishment and abortion to affirmative action and the imprisonment of terrorist suspects at Guantanamo Bay. Those steps bore the caskets of justices who lay in repose as thousands of mourners paid their respects. The scene was so iconic, so evocative, that it became a template for depiction of a democracy at its finest, a staple of movies from the film classic "Mr. Smith Goes to Washington" to the made-for-TV movie about the contested Bush v. Gore 2000 election called "Recount."

This week, the U.S. Supreme Court did something that no other high court in a democratic country has ever done -- not even Israel. It closed the front door to its building for security reasons, forcing those seeking justice to go through ground-level side entrances to a "secure reinforced area" where they can be screened "for weapons, explosives and chemical and biological hazards," the court announced.

It being the Supreme Court, there were of course dissents. Justice Stephen Breyer protested, with Justice Ruth Bader Ginsburg in his corner. "Potential security threats will exist regardless of which entrance we use," Breyer wrote. "And, in making this deci­sion, it is important not to undervalue the symbolic and historic impor­tance of allowing visitors to enter the Court after walking up [those] famed front steps."

The door closed on Monday, but we didn't want the week to pass without adding our condolences.

You can read the full dissent below, as provided by the court.

-- Johanna Neuman

Photo: The front steps of the U.S. Supreme Court in 1958. Credit: Associated Press

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Supreme Court: torturing animals on video protected by 1st Amendment; maybe Obama will pick a vegan

Philadelphia Eagles quarterback Michael Vick talks about ending the dog fighting for which he served time in federal prison Sept. 29, 2009 by Reuters Pictures
Not bad enough that they forced property owners to sell out in the interests of economic development or intervened in Bush vs. Gore to stop the 2000 recount that might have found that Al Gore actually won.

Tuesday, the Supreme Court decided that the Constitution protects animal abusers who torture dogs and record their violence for sale as videos because a law Congress passed in 1999 against animal cruelty was written too vaguely, and could have been used to outlaw hunting videos. In an 8-1 decision, Chief Justice John Roberts wrote:

The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.

And the lone hold-out? Might surprise you. It was Samuel Alito, one of the arch conservatives on the court. Rebutting the majority's view that the law was too broad, Alito argued it could still be used to stop crush videos, which apparently appeal to some people's sexual fetish by showing women in stiletto heels crushing animals to death.

"The First Amendment protects freedom of speech, but it most certainly does not protect violent criminal conduct, even if engaged in for expressive purposes," he wrote.

Question to legal experts: does this mean the court would find constitutionally permissible a crush video depicting people being tortured to death on video on grounds the law was written too vaguely?

Now that President Obama has a new Supreme Court nomination to make, maybe he can consider naming someone with more sensitivity to the souls of animals. First Dog Bo would probably wag his tail at that.

-- Johanna Neuman

Photo: Eagles quarterback Michael Vick talks about the dog fighting that led to his conviction and prison time for animal cruelty in a church appearance Sept. 29. Credit: Reuters

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Supreme Court colleagues reveal how John Paul Stevens' resignation changes their secretive lives

Retiring Supreme court justice John Paul Stevens

A special viewing treat here today for Ticket readers.

Supreme Court Associate Justice John Paul Stevens announced today he would retire at the end of the high court's current term this summer.

In a letter to President Obama, the 89-year-old justice said:

Having concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court's next term, I shall retire from active service.

Republican-appointed and liberal-minded, Stevens' replacement will be the topic of much public discussion -- and these days, no doubt, considerable disagreements -- in coming weeks both in the media and during a Senate confirmation process. The White House had already prepared a list of possible replacements and the president said today he believes a like-minded jurist would be appropriate.

Meanwhile, here's a fascinating video from the keen-eyed, level-headed, fast-moving folks over at C-SPAN with the current justices talking about what happens within that secret body when a new member arrives. A four-punch recommendation by The Ticket.

--Andrew Malcolm

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Video courtesy of C-SPAN.     Photo: J. Scott Applewhite / Associated Press

'Very troubling': Chief Justice Roberts on Obama's court criticism to joint session of Congress

Supreme Court Chief Justice John Roberts

Some firm and unequivocal pushback today by Supreme Court Chief Justice John G. Roberts Jr. to President Obama's court criticism in January.

It is not at all unusual in American history for the executive branch of the federal government (the White House, under the control of either party) to disagree with the judicial branch (Supreme Court).

What is considerably more unusual is for the chief executive of the executive branch (Barack Obama) to look down on the members of said Supreme Court in public at a joint session of Congress and to their faces denounce their independent actions.

And then to receive a resounding ovation from fellow Democrats standing to applaud and cheer Obama as the surrounded justices sat mute, motionless and unable to respond.

That, of course, is what Obama did in his first State of the Union address Jan. 27, objecting to a court decision allowing corporations to donate political funds like individuals as a matter of free speech. Watch this dramatic video:

Watch CBS News Videos Online

Now, nearly six weeks later, comes a public response. Speaking today at the University of Alabama law school in Tuscaloosa, Chief Justice Roberts called the president's actions "very troubling."

Robert, who you'll recall was summoned to the White House after Obama's inaugural speech to re-administer the muffed oath of office for safety's sake, noted that the atmosphere of the State of Union has "degenerated to a political pep rally."

Speaking in response to a law student's question, Roberts said anyone could criticize the court and, indeed, our governmental system of separation of powers encourages such opinionated diversity. Then, the chief justice added:

I have no problems with that. On the other hand, there is the issue of the setting, the circumstances and the decorum.

The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court — according to the requirements of protocol — has to sit there expressionless, I think is very troubling.

Justices are not required to attend the annual joint sessions but have traditionally done so as a sign of mutual respect for the president and legislative branch. In January, six justices attended, including Roberts. But it sounds now like that judicial thinking might be changing.

Roberts added: "I'm not sure why we're there."

More change in the harsh tone of Washington.

-- Andrew Malcolm

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Photo: Associated Press (file).

Barbra Streisand bemoans large political donations -- by others

Aging singing sensation Barbra Streisand singing

Update on celebrity politicking: One-time singing sensation Barbra Streisand has come out against the recent Supreme Court ruling giving corporations the legal right to make political contributions as she does.

In a widely-overlooked item on Huffington Post this week, Streisand complained that the overwhelming 2008 "historic victory" of Barack Obama "was a mandate for change," as was the awarding of overwhelming congressional majorities to progressive Democrats.

But, according to Streisand, who says she's been a longtime supporter of free speech, progress in Washington has been stymied not by political infighting but by big money.

"Frustration has given way to anger," Streisand says, "as voters have witnessed the inability of our lawmakers to make progress on issues like health care reform, financial regulation, and energy policy. This inaction is due to a tidal wave of big money from the health insurance industry, Big Oil and giant financial institutions who have mobilized to challenge the people's mandate for change."

She adds: "The same financiers, whose greed contributed to the downfall of our economy, contribute significantly to candidates expecting a favorable return on their investment."

She favors new laws limiting large corporate contributions because "campaigns funded by small-donor driven public financing can turn Washington, D.C., away from 'rule by the monied' and towards 'rule by the many.'"

In addition to performing at Obama fundraising events, according to the Center for Responsive Politics' website, Streisand herself has donated in excess of $600,000, mostly to Democrats or Democratic groups over the years.

-- Andrew Malcolm

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Photo: Getty Images   Hat Tip: Jeff Poor

The graphic Super Bowl ads with Tim Tebow whose mother opted against his abortion -- videos

Well, they've played Big Game XLIV. And this time the South won the war.

But it was such a historic, life-changing moment for everyone that they'll have another one next year anyway.

More importantly, however, maybe some of you remember this huge pre-game fuss over the extremely controversial anti-abortion ad that Focus on the Family was secretly conspiring with CBS to inflict on the nation during the Super Bowl. Many groups, which had not seen the ad, demanded that CBS ban it. But the network proceeded.

The commercial was about the decision by Pam, the Florida quarterback's mother, against some medical advice to keep her fetus now known as Tim Tebow, the 2007 Heisman Trophy winner. And her choice portrayed in the ad underwritten by the conservative Colorado Springs pro-family group that opposes abortion was somehow threatening to the ability of any other woman today to obtain an abortion under the Roe vs Wade Supreme Court decision.

Well, in case you were otherwise occupied during the game ads, here are the awful ads. First, the serious one. Then, the humorous one. See what you think.

WARNING: These videos contain graphically affectionate images such as a grown son hugging his mother from behind.

Now, the second one:

Well, the nation is still standing.

On a similarly light side, here's the behind-the-scenes story of how they kept the surprise of the joint Super Bowl ad appearances of Jay Leno and his CBS rival, Dave Letterman.

-- Andrew Malcolm

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State of the Union review: A dissenting justice and a critical Obama, who sure likes the sound of 'I'

Virginia Republican Governor Bob McDonnell 1-27-10

First, a shocking admission:

The Ticket erred Wednesday morning predicting the dress color for Speaker Nancy Pelosi. We said power red; she actually chose purple, as did Michelle Obama. But we got the Obama-Biden duo's tie colors right; blue for the elderly VP, bright red for the boss.

The Ticket also reported here Wednesday morning on Republican Rep. Joe Wilson's promise to behave politely during President Obama's State of the Union speech last night.

The South Carolinian kept his word. He saved his strong presidential criticism for a web video after the Democrat's nationally-televised long address, live-blogged here. More on Wilson in a few paragraphs.

But someone else disagreed with the president during this speech, a surprising someone, though he expressed his disagreement far more discreetly than Wilson's shouted outcry "You lie!" during last September's Obama healthcare speech to both houses.

Justice Samuel Alito was among only six justices who attended the joint session of Congress (see video below), where the chief executive rather bluntly....

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About the Columnist
A veteran foreign and national correspondent, Andrew Malcolm has served on the L.A. Times Editorial Board and was a Pulitzer finalist in 2004. He is the author of 10 nonfiction books and father of four. Read more.
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