Thursday, May 13, 2010

What's The Deal With This Elena Kagan Lady?

Elections have consequences. One of them is that the President gets to appoint federal judges, and none are more important than the Supreme Court, the final arbiter of legal issues in America. Typically, any given President will only have the opportunity to appoint one or two Supreme Court Justices, so it's an incredibly big deal. The Senate is the only check on that nomination, but historically speaking the Senate would generally vote to approve pretty much anyone as long as they were a qualified legal expert.

Over the past couple of decades, however, that changed, as Democrats began to question not just the professional qualifications of nominees, but also their interpretations of legal precedents, their judicial philosophies, and even their personal lives. Now, it's pretty much assumed that any nominee for the Supreme Court will get a public mental enema, and that has caused more than one nominee to back out prematurely.

Of course, this all comes down to whether or not the new Justice will simply interpret the Constitution in the light of the Founders' intentions, or if he or she will interpret the Constitution in the light of his or her own agenda while citing some nonsense about a living, breathing document. In reality, liberals know that since their ideas can't win at the ballot box, they have to back-door their policies through activist judges who will substitute their own opinions for those of the Constitution of huge majorities of American voters.

The latest Supreme Court nominee is Elena Kagan, a former Dean at Harvard Law School. From the reading I've done on her, she's apparently a very sharp cookie, and no one doubts her legal acumen. Of course, she's never been a judge before, so her experience is just about completely lacking, and it's hard to know how she'd rule on various subjects because she has virtually no track record. Hm, sounds like the guy who nominated her...

Anyway, there are just a few nuggets that we can know about her from past writings, so let's recap three of those briefly. First, as Dean at Harvard, she banned military recruiters from coming onto campus, even during a war. The White House is now spinning madly to 'clarify' what she meant when she banned them. Apparently, there's a big difference between maliciously banning recruiters and benevolently banning recruiters. Or something like that.

Second, she's done a complete about-face on the process of nominees testifying before the Senate:
As a Judiciary Committee staffer in 1995, Kagan wrote an article in which she panned Supreme Court confirmation hearings as "vapid" and "hollow" because nominees refuse to specify their positions on hot-button topics. Durbin said Kagan — who was visiting several senators' offices in the Senate on Wednesday — understands better now why nominees can't be more candid.

"She said, 'Well, the world looks a little different from this vantage point,' " Durbin said of Kagan's response when he raised the topic of the article. "I think she will be as open and candid as she can be. But there are limits. She acknowledged that in the article that she wrote, that you just can't expect the nominee to speak out on every issue and prejudice a case that could come before you in the future. So she has to be careful to respect that line in her respect to the judiciary."

So, back when it was others on the hot seat, she blasted them for not taking a position and for avoiding tough questions. Now that she's the one on the hot seat, she feels that it's perfectly acceptable to do precisely that. Go figure. Now that's leadership!

The last thing I wanted to bring up is, to me, the most serious:
Supreme Court nominee Elena Kagan said the high court should be focused on ferreting out improper governmental motives when deciding First Amendment cases, arguing that the government’s reasons for restricting free speech were what mattered most and not necessarily the effect of those restrictions on speech.

Kagan, the solicitor general of the United States under President Obama, expressed that idea in her 1996 article in the University of Chicago Law Review entitled, “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.”

In her article, Kagan said that examination of the motives of government is the proper approach for the Supreme Court when looking at whether a law violates the First Amendment. While not denying that other concerns, such as the impact of a law, can be taken into account, Kagan argued that governmental motive is “the most important” factor.

In short, Kagan believes that the government should regulate free speech on the basis of what it feels is most important. Can't imagine how that could possibly be misused, can you?

The Left is pretending that they're only grudgingly going to support her because she's not quite liberal enough for them, hoping instead for a liberal who could intellectually duel with Antonin Scalia and come out ahead. Kagan isn't likely to pull that off, and everyone knows it. Even some on the Right seem to support the notion that she might not be the Left's ideal choice. There's some discussion out there about whether or not she may be a lesbian, but that's really pretty irrelevant and nothing more than a diversion, with the side benefit of giving Kagan supporters a club with which they can bludgeon the opposition with accusations of gay hatred. Don't get sucked into it.

This all boils down to one really simple thing:

Elena Kagan is Barack Obama.

He selected her because she, like him, believes in as much government control as possible, with liberals writing the rules that please them. She wrote her undergraduate thesis on the woes of socialism in America, lamenting the fact that it was on the decline. Obama elevated her far beyond where she likely would have gone on her own, and she'll be his rubber stamp on the highest court in the land, in a prime position to rectify that decline of socialism for decades to come.

Republicans in the Senate should oppose her for a variety of reasons, but it is likely -- though utterly confounding and frustration-inducing to the rest of us -- that they will not, at least not in large enough numbers to prevent her from succeeding. Still, it would be good to give your Republican Senators a call and offering your thoughts on how they should vote, especially if you tell them this is one of your measuring sticks for who should be re-elected.

There's my two cents.

Related Reading:
Supreme Court nominee Elena Kagan
Everything you need on Elena Kagan

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