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).



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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.

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