Think Tanked

Do Think Tanks Engage in Litigation?

The Las Vegas-based Nevada Policy Research Institute sees itself as a think tank:

Since its inception in 1991, the Nevada Policy Research Institute has served as a clear and consistent voice for free-market principles in the Silver State, effectively advancing pro-liberty ideas in Nevada public policy.

A nonpartisan, non-profit think tank, the Institute seeks private, market-based solutions to public policy challenges facing Nevada, the West and the nation. Over the years, the Institute has built an impressive record as a champion for limited government and individual liberty.

But last week, NPRI announced that it will begin to engage in litigation through a new wing called the Center for Justice and Constitutional Litigation.

According to an NPRI release:

The Center for Justice and Constitutional Litigation (CJCL) will litigate as a means to uphold the nation’s bedrock principles, including limited and ethical government, property rights, Second Amendment rights and the separation of powers.

"For far too long, victims of scofflaw government in Nevada have faced the unpalatable choice either of filing or defending a costly and time-consuming lawsuit to protect their rights, or living with the abuse,” said Sharon Rossie, president of NPRI. “NPRI’s Center for Justice and Constitutional Litigation will use the litigation process to provide citizens recourse pro bono when the government has violated their fundamental rights."

Is litigation another way think tanks are gradually moving in directions outside their traditional realm of research in a similar fashion to the Center for American Progress and the Heritage Foundation and their action/lobbying 501(c)(4) wings?

And is this problematic or just the wave of the future of think tanks?

Third Way's Kagan Memo

Progressive think tank Third Way released a memo on Elena Kagan today that discusses her merits as a moderate nominee for the Supreme Court. What separates this memo from a number of other think tank memos and blog posts on the subject is that it's a collection of other--and mostly conservative--individuals' words. 

A couple of particularly interesting ones include:

Former Bush administration lawyer Brad Berenson said that Kagan “sent a strong signal to conservative alumni that, despite her own party affiliation, she was committed to intellectual diversity and meritocracy at [Harvard Law School], and was determined to serve the long-term best interests of the institution rather than any narrow ideological agenda.”

And:

Even conservative author Dick Morris has said that within the Clinton White House, Kagan “was a moderate and conservative . . . she would be a moderate on the court. She’d be a little bit like Sandra Day O’Connor.”

AEI's John Yoo on Kagan's 'Executive Problem'

John Yoo, AEI scholar and University of California-Berkeley law professor, writes in the New York Times that Elena Kagan simply isn't doing enough to say she supports a strong executive.

Never mind that she has been defending some of the policies that Yoo help put in place during the Bush years.

True, Ms. Kagan has defended some of the Bush administration’s counterterrorism policies on wiretapping and the detention of terrorists without criminal trial (policies on which I worked as a deputy assistant attorney general under President George W. Bush). But these positions provide little hint about what a Justice Kagan would think about executive authority sitting on the bench in time of war.

New America: SCOTUS Term Limits "Good for America"

Steven Hill, director of the New America Foundation's Political Reform Program, in today's New York Daily News suggests that one of the ways to get rid of all the partisan problems in nominating a Supreme Court justice we're likely to see with the Elena Kagan nomination is to impose term limits on the Supreme Court.

Judicial term limits and mandatory retirement ages would ensure not only brilliant legal minds but also some balance of legal perspectives on the high court. Those two reforms alone would create a modest amount of turnover and ensure that one party or President does not stack the court. Norman Ornstein, a scholar with the conservative American Enterprise Institute, has written in favor of 15-year term limits for Supreme Court justices and federal appeals court judges, as well as staggered terms.

Sen. George LeMieux Blogs for Heritage

George LeMieux, U.S. Senator from Florida, is a guest blogger over at Heritage's The Foundry blog to discuss the upcoming Supreme Court justice nomination following the retirement of Justice Stevens.

LeMieux writes:

When considering a nominee for the vacancy created by Justice John Paul Stevens’ retirement, the Senate must determine whether the nominee will demonstrate an unfailing fidelity to the text of the Constitution and proper restraint against the temptation to expand judicial power. United States Supreme Court vacancies are not to be filled with symbols of ideology; they are to be filled with people who demonstrate a true adherence to the rule of law.

LeMieux's biggest worry seems to surround the question of empathy.

The “empathy standard” has no place in our courts. Lady Justice should never tip the scales of justice toward one party because of a personal or policy preference. Doing so would transform our courts into unelected and politically unaccountable legislatures. That path is dangerous and is contrary to the fundamental structure of our federal government.

Read LeMieux's post at The Foundry.