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Analysts on Kagan and the Supreme Court

By The NewsHour, The NewsHour - October 4, 2010

JEFFREY BROWN: Finally tonight: It's the first Monday in October, and that means it's the first day of the U.S. Supreme Court's term.

There are several high-profile cases on the docket, including one that will be argued later this week involving protests during military funerals. But much of the immediate attention is on a new justice, former Solicitor General Elena Kagan, and the fact that women now make up a third of the court for the first time in history.

We look at the new court now with Paul Butler, professor of law at George Washington University and a former federal prosecutor for the Department of Justice during the George H.W. Bush and Clinton administrations, Paul Clement, solicitor general in the George W. Bush administration, and now an attorney in private practice in Washington, and, as always, Marcia Coyle of "The National Law Journal."

Welcome to all of you.

MARCIA COYLE, "The National Law Journal": Thank you.

JEFFREY BROWN: Marcia, this term is already historic, even if nothing else happens, right?

MARCIA COYLE: Absolutely, Jeff.

JEFFREY BROWN: You were at the court today. What -- tell us what happened.

MARCIA COYLE: Well, it was a usual and an unusual day, usual in that the chief justice formally closed the old term and opened the new term, and unusual because Justice Elena Kagan stepped through the velvet curtains behind the court's bench and became the third woman to be sitting hearing arguments today at the court.

The courtroom was full. There were a number of spectators from the public, as well as a number of lawyers, who traditionally come to be sworn into the Supreme Court bar.

JEFFREY BROWN: And did she participate? What happened?

MARCIA COYLE: She did.

JEFFREY BROWN: What do we see?

MARCIA COYLE: She was first out of the gate with a question, as I think Justice Sotomayor was on her first day. But she did ask roughly seven questions in the first hour of arguments.

And then she left, because the second case to be argued involved the United States as a party. And she had been solicitor general at the time participating in that case.

JEFFREY BROWN: All right, that's a subject I want to get to. But, first, Paul Clement, let me ask you. A new justice always raises questions about how the court will be shaped. What do you look for to know that -- the answer to that?

PAUL CLEMENT, former U.S. solicitor general: Well, the old adage is, every time you change one member of the Supreme Court, you get a whole new court.

And I think adding Justice Kagan to the court, I mean, people have focused on the fact that you now have a third of the members are women. It's also the first time in -- since Justice White was on the court that you have a Democratic appointee who held high-level administrative, executive branch positions.

I think there's a number of different ways in which her presence on the court will change the dynamic of the court and make the dynamic among the justices different from any time previously.

JEFFREY BROWN: And, Paul Butler, one of the questions people are wondering is whether -- who steps in for that seat that Justice Stevens had -- I mean that position that Justice Stevens had as the champion of liberal causes on the court.

PAUL BUTLER, professor, George Washington University School of Law: And I'm not sure Kagan is the person to do that. She's more of a moderate.

Stevens was an old-school liberal, and she's a new-school pragmatist, like the president who appointed her. And it's important, a lot of progressives think, to have someone who is a left-wing equivalent of Justice Scalia, who is abrasive sometimes, or Justice Thomas, who is committed to this right-wing ideology.

Again, both Justices Sotomayor and Kagan seem to have been selected by the court -- by the president in part because they are brilliant, but also because they have great people skills. So the hope I think is that they can kind of rein in some of the right-wing extremism that we see from the chief and other recent Republican appointees.

JEFFREY BROWN: Marcia, you start -- we talked about the historic nature of the three women. Clearly symbolic resonance, right?

MARCIA COYLE: Oh, absolutely.

JEFFREY BROWN: Is there a question about a substantive impact of that?

MARCIA COYLE: Well, I think Justice Ginsburg has addressed this, and so has Justice O'Connor in the past. And, in general, they -- they would say that it doesn't make a substantive difference.

But it can make a difference in certain cases. And we have actually seen that. We have seen =- we saw it in the term in which the court took up whether it was reasonable to strip-search a middle school girl.

Justice Ginsburg brought a great perspective to that case, having raised a daughter. Also, I think there have been some political scientists who studied this issue, and they say that female judges often make a difference in sex discrimination cases.

JEFFREY BROWN: You were nodding.

PAUL BUTLER: Sure. You know, three is a magic number when it comes to a group the size of the Supreme Court, because for...

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