Scott Spiegel

President Obama called arguments against Supreme Court Justice nominee Elena Kagan’s confirmation “pretty thin gruel.”

That’s funny—I call no judicial experience and scant, conflicting legal theorizing in print “a short stack of hotcakes.”

We know little of Kagan’s judicial philosophy—and may know even less after her hearings this week if she has any say in the matter—but what little we know isn’t to like.  In fact, it’s enough to hold our noses at.

Kagan wrote in her master’s thesis at Oxford that “[J]udges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends.  Such activity is not necessarily wrong or invalid.”  Years later, when challenged on these remarks, she brushed them aside, claiming she was just a “dumb” 23-year-old at the time.  (Question: Was Obama just a dumb 45-year-old when he was still attending Reverend Jeremiah Wright’s racist sermons at Trinity United Church of Christ?)

Kagan once paraphrased her boss Supreme Court Justice Thurgood Marshall’s view that interpretation of the Constitution “demanded that the courts show a special solicitude for the despised and disadvantaged.”  Great!  Does that mean she’s on the side of corporations (the despised) and inner-city residents who want to protect themselves with handguns from break-ins (the disadvantaged)?

That’s probably a no on corporations, since as Obama’s solicitor general Kagan argued the losing position in the Citizens United v. Federal Elections Commission (2010) case.  Kagan argued that corporate-sponsored pamphlets and posters could be banned before elections, because they violate campaign finance regulations.  She also claimed with a straight face that it was OK to ban books containing endorsements of candidates for public office before elections, because the FEC won’t actually enforce the ban.

Some have argued that the stances Kagan has taken as solicitor general reveal nothing about her personal views, because she is required by her job to argue the government’s position.  Yes, but was she required to accept jobs clerking for Marshall, strategizing for President Bill Clinton, and shilling for President Barack Obama?  Is it unfair to intuit that she’s a bit more comfortable implementing the visions of these liberal lions than she would be, say, clerking for Clarence Thomas?

When Obama nominated Kagan for the post of solicitor general, he boasted that she had chosen Citizens United as the first case she wanted to argue if confirmed.  So I think it’s safe to say that many of Obama’s predilections are near and dear to her heart.

And that’s probably a no on guns, since as Marshall’s assistant decades ago Kagan urged him not to hear a Washington, D.C. resident’s appeal of his conviction for owning an unlicensed handgun.  When the defendant argued that the D.C. gun ban violated his Second Amendment rights—a decision, by the way, upheld by the Supreme Court in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010)—Kagan snippily replied, “I’m not sympathetic.”

Weak-kneed conservatives keep telling us we should be quiet and support Kagan’s nomination (which is exactly what they said about Sonia Sotomayor’s nomination last summer), because she’s only replacing another departing liberal, Justice John Paul Stevens (which is exactly what they said about Justice David Souter last summer).  OK, but since when did conservatives’ Supreme Court standard stop aiming for 9 defenders of the Constitution and start settling for 4.5?

Former Wall Street Journal assistant managing editor Tunku Varadarajan gushed that in the opening statement of Kagan’s hearings she spoke “with a face that was tilted at an appropriately deferential angle, and with a voice that betrayed—to my delight—the vowels of Manhattan’s Upper West Side.  (She sounded, let us say, like a wise Ashkenazi woman.)”  That and five originalists will get you a constitutional decision!  To Kagan’s credit, at least bloggers haven’t unearthed speeches in which she announced that better rulings would presumably be made by a wise Ashkenazi woman than a Gentile man.

The RINO herd keeps telling us we shouldn’t oppose Kagan, because then venerated liberals will paint us as stubborn and argumentative.  These are the same liberals, you will remember, who last year called town hall protestors racist, two-year-old teabaggers for opposing ObamaCare.

As gratifying as D.C. v. Heller, Citizens United, and McDonald v. Chicago were, here is why conservatives must oppose Kagan’s confirmation: because we can’t afford any more such 5-4 nail-biters, to say nothing of epic disasters we have surrendered like Rasul v. Bush (2004), Kelo v. City of New London (2005), Hamdan v. Rumsfeld (2006), and Massachusetts v. EPA (2007).



 Print This Post

Related articles by Zemanta

• A few ‘vapid’ questions for Elena Kagan (washingtonpost.com)
• Kagan Argued for Government ‘Redistribution of Speech’ (cnsnews.com)
• Possible pitfalls for Kagan with her own words? (apnews.com)
• Filling the Stevens Seat (reason.com)
• Kagan Declines To Say Gov’t Has No Power to Tell Americans What To Eat (youtube.com)

As the newly appointed Dean of Harvard Law School, Obama Supreme Court nominee Elena Kagan decided, in the middle of the War on Terror, to cripple the Reserve Officer Training Corps’ recruitment capability on campus by denying it crucial access to funding, operating space, and assistance from the Office of Career Services.

Kagan’s action fits into a shameful history of antiwar college administrators’ kicking ROTC off university campuses nationwide, most visibly at Ivy League schools, out of opposition to the Vietnam War in the late 60s and 70s.  After the war ended, officials extended the policy out of supposed concern over the military’s ban on gays in the 80s and the “Don’t Ask, Don’t Tell” policy in the 90s.

After the Solomon Amendment barring federal funding to universities that ban military recruitment on campus was fully implemented at Harvard in 2003, Kagan signed on to a legal challenge to the amendment.  The Third Circuit Court overturned the amendment in 2004, but stayed its ruling pending Supreme Court review.  Kagan, impatient with the vagaries of the legal system, decided to force Harvard back onto its anti-ROTC policy, even though the law hadn’t yet been changed.  The Supreme Court unanimously overturned the Third Circuit ruling in 2006, at which point Kagan reversed her actions to comply with the ruling.

Gay rights supporters defend Kagan’s actions as a necessary stopgap against government-sponsored military discrimination.

It is instructive to reconsider Kagan’s stance in the context of the role our military plays, the people and the rights it protects, and our enemies’ attitudes toward individual liberty and their treatment of gays.

Who, for example, benefits from the protections the U.S. military provides its citizens—only straight people, or gays as well?

Who protects the rights of citizens of our country, in which gays may live more or less as they please; form relationships with same-sex partners; enter (in a growing number of states) into civil unions, domestic partnerships, and marriages; adopt (in a growing number of states) and raise children; file lawsuits if they believe they have been unlawfully discriminated against; push to change laws to promote equality with heterosexuals; protest for their rights and hold rallies and parades in America’s major cities; and engage our political leaders in debate about allowing gays to serve openly in the military?

How do governments treat gays in countries that are our adversaries—in particular, those that fund, sponsor, and sympathize with the war to defeat gay-tolerant Western civilization and promote radical Islam around the world?  Do these Islamic governments have the same enlightened perspective on gays as the U.S., or do they condemn gays and throw them in jail or execute them for homosexual behavior?

The left in this country has traditionally demonized or devalued the military—at worst, it is for them a barbaric, fascist, industrial complex that sparks unnecessary wars and engages in brutal imperialist conquests.  At best, it is for them a largely unseen, slightly tacky presence whose benefits they take for granted, just as they take for granted our capitalist economy’s wealth, which they seek to appropriate and redistribute with no concern for the effort required to create it.

As many soldiers pointed out during the Iraq War, our military protects the right of antiwar liberals to protest the military’s actions.  What a slap in the face it is to bar or hobble the military in recruiting the brightest students from the best universities across the country to help complete its mission.  Imagine if military recruiters were similarly barred from other U.S. institutions and were unable to recruit enough members to fill its ranks.

As liberal, DADT-opposing Peter Beinart wrote, “The United States military is not Procter and Gamble.  It is not just another employer.  It is the institution whose members risk their lives to protect the country.  You can disagree with the policies of the American military; you can even hate them; but you can’t alienate yourself from the institution without in a certain sense alienating yourself from the country.”

Kagan’s ROTC-bashing position is also counterproductive, in that it further isolates the military from liberal views and entrenches in the left the mindset that the military is hard-line and unreformable.  And how is spitting on ROTC fair to soldiers, commanders, and potential recruits who oppose DADT or might be gay themselves?

The American Spectator’s John Tabin, who also supports repealing DADT, notes, “[I]f you want a military leadership with more liberal views on homosexuality, you should be more reluctant to entrench this cultural estrangement, not less.”  The policy of banning or restricting ROTC is just another example of leftists prematurely deciding that debate on an issue is over, those who disagree with them should no longer have a voice in the conversation, and dissenters do not deserve to be persuaded out of their positions or treated with respect.

Although DADT is misguided, treating recruiters shabbily is merely one way for liberals to disguise their contempt for the military and its unapologetic defense of American values around the world.  The day that DADT is repealed, leftist college administrators will be scouring the horizon for some other excuse to ban recruitment at their schools.

As Beinart wrote, “Barring the military from campus is a bit like barring the president or even the flag.”  But liberals can’t ban the American flag, can they?  Oh, wait—yes they can!

 Print This Post

Related articles by Zemanta

• The Problem With Elena Kagan (thedailybeast.com)
• Supreme Court nominee has thin ‘paper trail’ (realclearpolitics.com)
• Kagan Doesn’t Deserve It (thedailybeast.com)
• Does Elena Kagan Support Limited Government? (cato-at-liberty.org)
• Double Standard Anyone? Ten Times More ‘Conservative’ Labels for Alito than ‘Liberal’ Tags for Kagan (newsbusters.org)

When anticipating Obama’s upcoming nomination to replace retiring Supreme Court Justice John Paul Stevens, there are two approaches conservatives might consider taking:

Hope that Obama nominates the most conservative candidate in case he gets confirmed;

Hope that Obama nominates the most liberal candidate to highlight Obama’s radical ideology and make it easier for Republicans to reject her.

Relatively speaking, the most conservative candidate on Obama’s short list is D.C. Appeals Court Judge Merrick Garland.  The most liberal is Seventh Circuit Appeals Court Judge Diane Wood.

The problem with hoping for a moderate candidate is that anyone Obama is dreaming of nominating would be a disaster regarding adherence to the rule of law and upholding the Constitution.

The problem with hoping for a leftist candidate is that we cannot rely on Republican Senators to be courageous enough to block even the most egregious Obama nominee—even after the Democrats just declared war by passing a bill taking over the country’s health care system without a single Republican vote.

Given their dismal failure last summer to stand up to Our Wise Latina Sonia Sotomayor’s incendiary record (typical GOP critique during her confirmation hearings: Lindsey Graham’s creepy, drooling paean, “I like you!”), Republicans cannot be counted on to offer meaningful opposition to whichever train wreck Obama picks this year.

Tragically, this whole process should be a cakewalk for Republicans.  America is still a center-right country; the type of crowd Obama hangs out with is, to put it mildly, not.

Yet the New York Times tried to bully conservatives over the weekend in a story titled “G.O.P. Weighs Political Price of Court Fight.”  In the Times’ version of the story, it’s all about the Republicans—not President Obama, not any of his potential nominees—but the stubborn GOP and whether they still want to be seen as the petulant, spoiled party of “No, I don’t want to eat my peas!  I don’t care if they’re good for me!”

The Times opened their story thus: “The retirement of Justice John Paul Stevens presents a test for Republicans as much as it does for President Obama as they weigh how much they want to wage a high-profile battle over ideological issues in the months before crucial midterm elections.”

This is like saying, “The approach of dinnertime presents a test for Mom as she weighs how much she wants to wage a battle over nutritional issues in the hours before the family gets home.”  When is she supposed to worry about nutritional issues—after her children leave home?

When are Senators supposed to worry about ideological issues surrounding a Supreme Court nominee—after the candidate retires?

As congressman Mike Pence noted, depending on the progress of lawsuits filed against Obamacare by 14 state Attorneys General, the Supreme Court will likely rule on “whether the federal government has the power to compel Americans to purchase health insurance…  Now is the time to have a thorough debate over the course and direction of the court.”

This, of course, would require Republicans to insist that Obama’s nominee answer questions about whether the health care bill’s individual mandate requiring citizens to buy private sector insurance is constitutional.  Fat chance of the GOP squeezing a substantial answer out of any Obama nominee on that subject in confirmation hearings this summer.

When Republicans aren’t being encouraged to avoid discussing issues relevant to the confirmation process, they are urged to avoid being… political.

According to Senator John Cornyn, who had a spine during the fight over the health care bill last year, “We need to probably bend over backwards both in appearance and in reality to give the nominee a fair process.”  You mean like the fair process Democrats magnanimously tendered in ramming through ObamaCare?

The honor of being nakedly partisan is apparently reserved for the left: see, for example, Senator Charles Schumer’s recent statement, “One of the most important qualities for the new justice is the ability to win over Justice Kennedy…  Somebody who’s going to be one of the five and not one of the four.”  No thoughtful discussion of judicial philosophy lurking there!

So Republicans shouldn’t be ideological and we shouldn’t be political in considering Obama’s nominee.  Can we at least have a toss of the dice, or do we have to just roll over and play dead now?

I gather no comfort from the tough talk of Senators like Orrin Hatch, who promises “a whale of a fight” if Obama nominates a liberal activist, or Mitch McConnell, who insists that Republicans will demand a justice who gives “an evenhanded reading of the law.”  Whether these few principled leaders are willing to vote down or filibuster a nominee, too many Republican senators will not be.

My advice to Democrats and Republicans: Oh, just do whatever the hell you’re going to do anyway.

You will be held accountable—on both sides of the aisle—on Election Day.

 Print This Post

Related articles by Zemanta

• John Paul Stevens to retire from Supreme Court (washingtonmonthly.com)
• Justice Stevens: Senators React (blogs.wsj.com)
• Some Facts on Supreme Court Nominations (mydd.com)
• What the Expect from the Media in the SCOTUS Nomination Process (dailykos.com)
• Senators signal bruising confirmation battle on Supreme Court nominee (cnn.com)

In light of Justice Sonia Sotomayor’s Supreme Court confirmation hearings this week, in which the controversial nominee must face tough scrutiny from senators of both parties on her judicial philosophy, temperament, and fidelity to the rule of law, political commentators on the left are naturally busy suggesting harsh, delegitimizing questions for… Frank Ricci!  The lead New Haven firefighter in the Ricci v. Destefano racial discrimination lawsuit, who will testify in the hearings, has been attacked by Slate magazine, among others, for having previously brought lawsuits against former employers for discriminating against him due to his dyslexia and for firing him for being a whistleblower against his department.

Ignoring the fact that Ricci’s earlier lawsuits have zero legal bearing on the arguments in the Ricci v. Destefano case and that the Supreme Court recently overturned Sotomayor’s ruling against Ricci, why should the other 17 firefighters in the lawsuit suffer if it so happens that Ricci was lawsuit-happy with his previous employers?

Speaking of those other firefighters, Lieutenant Ben Vargas, who will also testify at Sotomayor’s hearings, is the Hispanic firefighter who joined 17 white firefighters in the lawsuit against the New Haven fire department.  Vargas shares some superficial similarities with Sotomayor: both are Hispanic; both were born and raised in the U.S.; both have Puerto Rican parents who came here because they were poor.  Both grew up in troubled, high-crime, urban neighborhoods in the Northeast; both found a way out of their circumstances through hard work in their chosen career paths.

That’s where the similarities end.

Vargas considers himself an American first and foremost; as he said in an interview with the New York Times, “I love my people.  I love my culture…  But I am so grateful for the opportunity only the United States can give.”

In a speech on Hispanics in the justice system, Sotomayor said, “America has a deeply confused image of itself that is in perpetual tension…  [We] insist that we can and must function and live in a race and color-blind way that ignore these very differences that in other contexts we laud.”  Which other contexts are those, Justice Sotomayor—putting out fires in a racially sensitive way?

Vargas was hired by the New Haven Fire Department in 1994 as a result of a discrimination lawsuit brought by black firefighters, but he opposes affirmative action in principle and would prefer to have been hired in a race-neutral context (and believes he may still have been hired if he had been afforded a colorblind assessment).

Sotomayor admits that she benefited from affirmative action and continues to support the policy.

Vargas, as a result of joining the Ricci v. Destefano lawsuit, received no support from the New Haven Hispanic firefighters’ association, of which his brother is a member.  Vargas had the courage to leave the association.

Sotomayor served for 12 years in leadership positions, including setting policy, on the board of the Puerto Rican Legal Defense and Education Fund, which, among other dubious accomplishments: (1) defended during her tenure several Puerto Rican separatists who had injured five legislators in a terrorist attack on the U.S. House of Representatives and (2) has a close working relationship with ACORN, the community organization that has been indicted numerous times for violating federal and state laws.

Vargas, after joining the Ricci lawsuit, was physically attacked by a fellow black firefighter in retaliation for his action.

Sotomayor upheld, with summary judgment, New Haven’s dismissal of the promotion exam on which Vargas and 17 white firefighters excelled, a dismissal motivated by the fact that no black firefighters did well enough for imminent promotion.

Vargas was ridiculed by fellow firefighters as an Uncle Tom for joining the lawsuit.

Sotomayor had no qualms about slapping down Uncle Tomás for thinking he could advance in his career based on his merits.

Vargas bravely remained in the New Haven fire department despite the tension and resentment displayed toward him by other firefighters.  He fought his battle for five years, until most of the department eventually came around to his position.

Sotomayor raised enormous controversy over her position and angered Americans who believe disparate racial results alone should not be used to conclude that discrimination has taken place.

The New Haven Hispanic firefighters’ association publicly reversed its opposition to Vargas’ position when the Supreme Court decided to take up the lawsuit, even before the Court decided the case in his favor.

Sotomayor’s position, presumably influenced by her experiences as a “wise Latina,” was abandoned by the Latino organization that represents Vargas’ profession.

Finally, the Supreme Court ruled in Vargas’ favor and overturned Sotomayor’s summary judgment 9-0.

In the New York Times interview, Vargas said, “I want [my three sons] to have a fair shake, to get a job on their merits and not because they’re Hispanic or they fill a quota.  What a lousy way to live.”

In her aforementioned speech, which tacitly supported Hispanic and female quotas in the federal judicial system, Sotomayor said with respect to her profession, “[Some believe] that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law…  I wonder whether achieving that goal is possible in all or even in most cases…  [We] may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning…  Whether born from experience or inherent physiological or cultural differences… our gender and national origins may and will make a difference in our judging” [emphasis added].

What a lousy way to judge.

How did the Republican Party’s approach to dealing with objectionable Supreme Court nominees come to resemble the Democrats’ strategy for the war on terror: scorn anyone who says anything critical of the opposition and settle for second-class citizen status, dhimmitude-style?  Are Republicans trying to balance Obama’s cooption of Bush’s war policy to restore some kind of harmony in the universe?

Over the past week, we’ve been treated by Republicans to a range of subtle and nuanced political stratagems for dealing with the nomination of Sonia Sotomayor, including: shut your mouth, don’t speak, zip your lip, don’t make waves, and while you’re at it, don’t say anything.  This, from the party of “hawks” who bravely fought and won the Civil War, the Cold War, and the Battle of Chad.

Let’s examine the reasons offered by Republican turncoats why we should not tender a whisper against the Sotomayor nomination:

It’s mean-spirited. Well, Democrats successfully mobilized before Reagan’s fourth Supreme Court nomination, Robert Bork, savagely vowing to form a “phalanx of opposition” against anyone at all Reagan deigned to choose.  Democrats tried to destroy George W. Bush appointees John Roberts and Samuel Alito but failed only because they lacked the votes (at least they managed to invade Roberts’ family’s privacy and make Samuel Alito’s wife cry!).  The Republicans have not opposed a Supreme Court nominee by a Democratic president since 1968.  I think that at least qualifies as “sporting.”

It’s immature. In the Wall Street Journal, Peggy Noonan scolds Republicans for not “play[ing] grown-up” and calls those who want to fight against Sotomayor’s nomination “idiots” who refuse to “think” or “dress the part.”  Let’s see: Five members of the Supreme Court have the power to make sweeping, life-or-death decisions that affect hundreds of millions of Americans and countless future generations.  I think raising forceful objections to Sotomayor’s judicial philosophy and temperament comes down more on the adult side than “She has cooties!”

The Republicans will lose independent voters. Republicans have most often converted independent voters and won elections when they have stuck to the party’s principles rather than offering a watered-down version of the Democratic party line, as in November 2008.  So remind me: How will consistently standing up and making a compelling case for their views cause Republicans to lose voters who are looking for a party that can offer consistent, compelling views?

The Republicans will lose political capital. Obama’s political goodwill toward Republicans began and ended with inviting John McCain to the White House for bean dip on Super Bowl night.  Congressional Democrats’ political goodwill toward Republicans has yet to materialize, and never will until Republicans regain both houses and Democrats are on the defensive again.

Sotomayor is not that liberal. Just as Obama is the most leftist president we’ve ever had, Sotomayor would be the most leftist justice on the current Court, even more of a liberal activist than Ginsburg, Breyer, and Stevens, who seem like Daughters of the American Revolution in comparison.

Sotomayor won’t change the balance of power on the Court. Both Souter and Sotomayor are liberal on social issues, but they are not both liberal on economic issues.  Souter is no Steve Forbes, but Sotomayor’s ruling in the shocking Port Chester “eminent domain” private property grab places her ideologically to the left of Marx.

Republicans will lose the Hispanic vote. Putting aside the condescending “voting bloc” mentality this ascribes to Latinos, it should be noted that Democrats weren’t worried about losing Hispanic votes when they opposed Bush’s nomination of Miguel Estrada to the D.C. Court of Appeals in 2002—indeed, they had enough stomach for the fight to wage seven filibusters against bringing him to a vote.  If Republicans are concerned about losing Hispanic votes, I suggest they offer the thoroughly vetted Estrada as their preferred nominee.

Sotomayor has an impressive resume. Newsflash: So do a lot of people!  I would wager that the number of potential nominees who went to top-tier undergraduate and law schools and managed to get a few employers and coworkers to say nice things about them numbers—oh, at least two or three.  Also, Sotomayor’s supporters defend against the charge that a majority of her appeals court decisions were overruled by the Supreme Court by stating that such cases are difficult—yet we are now expected to support her addition to the same team of justices who are capable of correcting the types of rulings she screwed up.  Finally, as Andrew McCarthy points out, Sotomayor’s ravings about the superior decision-making ability of certain races and genders doesn’t even quality her to be on a jury, let alone the Supreme Court.

Her confirmation is inevitable. The Supreme Court will be ruling on the Ricci v. Destefano firefighter discrimination case in June, weeks before Sotomayor’s confirmation hearings.  It is expected that the Court will overturn the decision Sotomayor supported, thus further energizing opponents of legalized racism (i.e., “Americans”).  Republicans should also remind the nation that Obama hasn’t demonstrated the most thorough vetting acumen in his first few months in office, having nominated a “phalanx” (if you will) of tax cheats and ethically challenged miscreants to Cabinet and other posts.

How about this strategy for dealing with the current nominee?  I say that even if Sotomayor’s resume is as long as the phonebook; even if someone makes a persuasive case that she’s not the most liberal justice in the world; even if Republicans are accused of being mean-spirited and immature; even if we lose a few wishy-washy independents, have a few Hispanics look at us askance, and ruffle a few Democratic feathers; and even if it’s not 100% certain that her confirmation can be stopped; the Republican party should fight this nominee kicking and screaming, hammering home the message about her record until her supporters get tired of brushing it under the rug, until we’ve made our point to the American public.

And they say the Republican Party doesn’t have any fighting spirit left.