Kagan's Heroes

[BenJohnson]

This is the second part of a five-part series about Supreme Court nominee Elena Kagan. Click here for part one.

I argued last week the decision to confirm Elena Kagan to the Supreme Court, where she could spend the next 40 years reinterpreting the Constitution, should focus on her legal philosophy rather than murky questions about her sexual orientation. There is but one problem with this approach: it appears Kagan has published extraordinarily little for us to judge. Paul Campos of The Daily Beast recounted, “in the nearly 20 years since Kagan became a law professor, she’s published very little academic scholarship – three law review articles, along with a couple of shorter essays and two brief book reviews.” Remarkably, Kagan received tenure at the University of Chicago “in 1995 on the basis of a single article in The Supreme Court Review – a scholarly journal edited by Chicago’s own faculty – and a short essay in the school’s law review.” Even her slender canon of articles generally assesses the views of others without breaking new ground. As Campos summed up, “Kagan is more or less an academic nonentity.” (Coincidentally, her mentor, Abner Mikva, told Business Week a few years ago, “The best way a judge can get nominated and confirmed is to have as little a paper record as possible. Judges aren’t writing as many law review articles, and their decisions are much narrower than they used to be.”)

Does this mean we have no way to divine her judicial views? No. Kagan has given us a glimpse of her worldview by those whom she has hailed as heroes: judicial activists who disregard our Founding Fathers’ intent, see the Court as an instrument of social change, support abortion, and want American law interpreted by foreign law.

Kagan saluted two of America’s foremost proponents of the “living Constitution” by name on Monday when she was formally nominated. Her voice swelled with pride as she said, “I clerked for a judge, Abner Mikva, who represents the best in who represents the best in public service, and for a justice, Thurgood Marshall, who did more to promote justice over the course of his legal career than did any lawyer in his lifetime.” She named two other legal scholars – Cass Sunstein and Aharon Barak – before being named Solicitor General. All four members of this quartet should frighten anyone who cherishes our Founding Fathers’ system of limited government and inalienable rights.


...



Thurgood Marshall: The Worst Justice in Modern History

After leaving Abner Mikva’s bush league activism, Kagan clerked for Supreme Court Justice Thurgood Marshall. Since no other conservative commentator seems to have marshaled the courage to enunciate this truth in the last week, I will say the unthinkable: Thurgood Marshall was a judicial revolutionary who disdained our Founding Fathers and the nuclear family at every opportunity, relished his ability to impose his views via the law, urged the court to discriminate against white people, longed for the redistribution of wealth along racial lines, and loosened the strictures on abortion and pornography. He was a walking Constitutional convention with a scatological sense of humor.

Kagan spoke glowingly of Thurgood Marshall’s advice that justices “show a special solicitude for the despised and disadvantaged…to safeguard the interests of people who had no other champion.” Kagan defended Marshall’s liberal judicial philosophy, saying, “however much some recent justices have sniped at that vision, it remains a thing of glory.”

Marshall described his vision to a gathering of Supreme Court clerks in less grandiloquent terms: “You do what you think is right and let the law catch up.” Another of Kagan’s heroes, Obama Regulatory Czar Cass Sunstein (who also clerked for the Supreme Court justice), said, “Marshall is responsible for the idea that social reform, through the Courts in the name of the Constitution, was both possible and desirable.”

To further his social revolution, Marshall consciously rejected the founders’ view of the document they wrote and lost few chances to ridicule them. RNC Chairman Michael Steele made one hapless and misguided attempt to point out Marshall’s disrespect for the Constitution last week, noting that the justice called it “flawed.” (Barack Obama has used identical language about the Constitution, saying that “fundamental flaw…continues to this day.”) But Marshall supplied Steele with an abundance of unused material. In 1987, Thurgood Marshall intoned the bicentennial of the U.S. Constitution would prompt “proud proclamations of the wisdom, foresight, and sense of justice shared by the Framers and reflected in a written document now yellowed with age. This is unfortunate.” He added, “I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound.”

I’m sure they would reciprocate.

After rehearsing the familiar litany of complaints against the slaveholding founders (which I refuted here and here), Marshall praised “those who refused to acquiesce in outdated notions of ‘liberty,’ ‘justice,’ and ‘equality,’ and who strived to better them.” He encouraged people to learn “the Constitution's inherent defects, and its promising evolution,” which he rightly judged would be “a more…humbling experience.”

Here the justice exposed the heart of his judicial philosophy: Succeeding generations have the duty to recast the Constitution in their own image, because they are morally superior to the founders.

Redefining the family became part of his ongoing sociological jurisprudence. Marshall once said he disagreed with the notion “that the ‘nuclear’ family is the basic building block of our society.” It was, he said, merely “a middle class norm that government has no business foisting on those to whom economic or psychological necessity dictates otherwise.”[1]

In his view, the government had more important decisions to impose. He advocated a sweeping distribution of wealth from whites to blacks. If that seems stark, Marshall’s description was more so. Supreme Court Justice William O. Douglas, who believed the purpose of the Constitution was “to keep the Government off the backs of the people,” recounted in his autobiography The Court Years: 1939-1975 that during the Affirmative Action debate, Thurgood Marshall once told him: “You guys have been practicing discrimination for years. Now it’s our turn.” (Marshall had used crude, discriminatory language before, telling a black publisher, “those white crackers are going to get tired of having Negro lawyers beating them every day in court.”)

He made the same argument, in more elevated terms, in his opinion in the Bakke case, which permitted reverse discrimination in American universities under certain conditions. He argued for widespread quotas thus: “during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.” He continued with the paradoxical argument that “we now must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence, and prestige in America” in order “to become a fully integrated society, one in which the color of a person’s skin will not determine the opportunities available to him or her.” This must progress even if blacks must be “accorded greater protection under the Fourteenth Amendment” than whites “where it is necessary to remedy the effects of past discrimination.”

Ever the social revolutionary, Marshall “redistributed” the right to life, denying it to the innocent but granting it to the guilty. Not only did he support Roe v. Wade, but his contribution liberalized abortion law further than it might have otherwise been.Justice Harry Blackmun wanted to allow states to regulate abortion heavily after the first trimester. Seeing an early draft of the decision, Marshall replied abortion after the third month should be subject to restrictions “directed at health and safety alone.”[2] In the delicate political negotiations leading up to the decision, Blackmun incorporated Marshall’s view into his ruling.

Although he had little use for innocent life (as does Kagan), Marshall held the death penalty to be inadmissible and unconstitutional in all cases....

This full article discusses Cass Sunstein (who believes the Constitution requires taxpayers to fund abortion and has proposed abolishing marriage), Democratic Socialist Abner Mikva, and Israeli Supreme Court justice Aharon Barak (who has been called Israel's "Big Brother").Click here to continue reading.

 

[Marek]

Hi BenJohnson,

I asked this in your other thread, but maybe you missed it.

Could you list a few individuals that you would have preferred Obama nominated instead of Kagan? Keep in mind that Obama would not nominate a conservative just as a conservative president wouldn't nominate a liberal. I'm just wondering who you think would have been a superior choice. Thanks.

 

[d'Sasster]

Actually, a conservative president nominated David Souter, a flaming liberal - so your premise doesn't really hold water.

Frankly, the premise that a president will nominate a justice ONLY based on their political leanings may have some merit, given most do. But it doesn't mean they must, and it definitely doesn't mean they should.

However, since progressives and liberals have so degenerated the institution of the supreme court by appointing those who view the position as one of reinterpreting the Constitution rather than upholding it, it shouldn't be surprising that presidents are now obliged to appoint members to it who will either promote the liberal/progressive world view or who will oppose it.

IMHO we *should* be appointing people to the highest court in the land who will uphold and properly interpret the Constitution - not in accordance with their personal world view or political leanings, but in accordance with that which the founding fathers established - and which, by the way, also defines their duties thus.

But liberals/progressives are anything but self-beholden to those documents upon which this nation was founded, believing it their privilege to change it according to their relativistic views of right and wrong and whatever contemporary "geniuses" they may worship at the time - "geniuses" who, by virtue of their contemporary enlightenment and disdain for all knowledge, wisdom, institutions and systems established before, arrogantly and pompously self-pronounce upon contemporary society their august judgments - to the general detriment of everyone, including the institution as well as the nation itself.

I pray she won't, but isn't it a foregone conclusion, being a liberal progressive, and having already said as much, that she will?

 

[Marek]

Actually, a conservative president nominated David Souter, a flaming liberal - so your premise doesn't really hold water.

One, Souter was not a "flaming liberal." He voted with the conservatives of the court most of the time for the first half of his Supreme Court career and only started siding with the liberal justices on social issues later on. Overall, it would be difficult to classify Souter as anything but a moderate.

Two, when President Bush appointed Souter, it was understood that he would be a reliable conservative. Bush wouldn't have appointed him otherwise.

So my question still stands. What possible nominees would conservatives here have liked to see appointed? Why are these individuals a better choice than Kagan?

 

[d'Sasster]

One, Souter was not a "flaming liberal." He voted with the conservatives of the court most of the time for the first half of his Supreme Court career and only started siding with the liberal justices on social issues later on. Overall, it would be difficult to classify Souter as anything but a moderate.

Two, when President Bush appointed Souter, it was understood that he would be a reliable conservative. Bush wouldn't have appointed him otherwise.

Given the Bush family's leanings, including the first lady's, such a premise isn't exactly rock solid. And one can look to the man's contributions as at least some evidence of that.

So my question still stands. What possible nominees would conservatives here have liked to see appointed? Why are these individuals a better choice than Kagan?

You really expect conservatives to make an effort to come up with a better liberal or progressive candidate for Obama to nominate? I don't think so.

 

[Marek]

You really expect conservatives to make an effort to come up with a better liberal or progressive candidate for Obama to nominate? I don't think so.

So of the individuals that Obama has been considering, or should have been considering, Kagan is your ideal choice?

 

[kermit]

So of the individuals that Obama has been considering, or should have been considering, Kagan is your ideal choice?

When all you stand for is opposition it's hard to come up with alternatives.

 

[DaisyDay]

You really expect conservatives to make an effort to come up with a better liberal or progressive candidate for Obama to nominate? I don't think so.

I thought Andy Borowitz was exaggerating:

WASHINGTON (The Borowitz Report) – Moments after news of President Obama’s choice for Supreme Court justice spread across Washington, congressional Republicans rushed to insert the name “Elena Kagan” into speeches opposing the President’s judicial nominee.

In the text of a speech released Sunday, hours before Ms. Kagan was selected, House Minority Leader John Boehner (R-Ohio) states, “I opposed the nomination of BLANK because I believe BLANK would lead the court down a dangerous path towards judicial activism. In short, I cannot think of a worse choice for Supreme Court than BLANK.”

The anti-Kagan rhetoric was generated last week before Ms. Kagan was nominated, GOP insiders said, by using a new iPhone app called iOppose.

Linky
​

 

[d'Sasster]

When all you stand for is opposition it's hard to come up with alternatives.

Oh please - the hypocrisy resident in such a statement is absolutely glaring - as if liberals and progressives have always stood at the ready to gleefully dash forth in support of whomever conservative presidents have nominated for the same position in times past - or to presume that we should now be similarly at the ready to gleefully support the person this president has nominated.

"Yippee! He chose a liberal progressive!!"

While liberals and progressives have the gall to haughtily presume a morally superior stance on predicaments for conservatives which they artificially created, fully aware (at least I hope - the premise being no one is that naive) - fully aware that no conservative is going to voluntarily come up with someone "whom this president would nominate" (c.f. Marek's premise - being this president will only nominate someone who isn't conservative) - they then hope to turn that fabricated predicament against conservatives by claiming ad nauseum all we stand for is "opposition" (liberals and progressives NEVER opposing anything themselves).

Not impressed or phased one bit by such an obvious and transparent ploy. Why don't liberals and progressives just be honest and ask us to cut off an arm or a leg instead - or maybe self-perform open heart surgery (something frankly we might need to get good at if health care reform doesn't get repealed)?

Anyone here truly want a conservative's best choice for this liberal progressive slot on the supreme court? Maybe stick true to form and manufacture one for us yourselves... I mean, the dilemma was created on our behalf, why not fabricate the ridicule in advance too?

 

[kermit]

Oh please - the hypocrisy resident in such a statement is absolutely glaring - as if liberals and progressives have always stood at the ready to gleefully dash forth in support of whomever conservative presidents have nominated for the same position in times past - or to presume that we should now be similarly at the ready to gleefully support the person this president has nominated.

No one suggested that you should support her. But if you are going be against something it lends more weight if you have an alternative. Simple opposition is simple and mindless. Being an active opponent that presents alternatives is hard work.

It also lends more weight if your opposition is based on something other than lies. Currently, the main argument against Kagan is that she barred military recruitment from Harvard Law. The problem is that this claim is false. She merely continued an existing policy, but allowed recruitment through another department. In fact, military recruitment increased during her time there.

 

[blueapplepaste]

No one suggested that you should support her. But if you are going be against something it lends more weight if you have an alternative. Simple opposition is simple and mindless. Being an active opponent that presents alternatives is hard work.

It also lends more weight if your opposition is based on something other than lies. Currently, the main argument against Kagan is that she barred military recruitment from Harvard Law. The problem is that this claim is false. She merely continued an existing policy, but allowed recruitment through another department. In fact, military recruitment increased during her time there.

Exactly. It didn't matter who Obama nominated, the GOP and its minions would come out against it. He could have nominated someone like Charles Pickering and we'd be hearing about how he was a radical leftist with communist sympathies. It's really quite sad and startling just how knee-jerk the reaction is by the right to anything and everything Obama does.

 

[ModCon]

To figure out who she is, read her papers, her published work, the work she has done in the past.
Like Obama and his "heros"and friends, people are going to say she liked them for thier good points, and didn't know or didn't care about the bad points.
If it is her words, her opinions, she can not seperate herself from them.

She has no Judicial experience, that is exactly why Obama chose her. She is mostly a blank check. But she has legal documents, that is where you find her real ideals.

I have not heard anything reasonable to keep her from being confirmed.
She is a liberal, thats what a liberal wants in the SC. Thats why the justice stepped down now, so that the position could be filled before the Dem's could lose control or at least their big majority.

Keep the arguement honest, if Dem's shouldn't have done it when Conservatives filled the vacancy, then Rep's should not do it now. If the dems expect something now, they should expect it when the next conservative justice is being placed.

Show how she is so extreme the average American would freak if she was confirmed. Otherwise move on.

 

[DaisyDay]

There can be a greater advantage to working with the majority opposition than to merely obstruct whatever is presented; likewise, there is a greater advantage to working with the minority opposition than to just try to ram it down their throats.

 

[d'Sasster]

Exactly. It didn't matter who Obama nominated, the GOP and its minions would come out against it. He could have nominated someone like Charles Pickering and we'd be hearing about how he was a radical leftist with communist sympathies. It's really quite sad and startling just how knee-jerk the reaction is by the right to anything and everything Obama does.

...and it won't matter when the GOP is next up to nominate someone, the Dems and its hoardes of jack-booted anarchistic regimists will come out against it with all the characteristic hatred, venom, and animosity they have in the past to oppose whomever is nominated. What's truly sad, no pathetic, is the denunciatory hypocrisy leveled at the right by those who not only do the very things of which they accuse them, but do it with all the haughtiness and hot air of self-congratulatory moral superiority that has been characteristic of the Dem party these past decades.

What is truly sad are the circumstances in place now that, rather than nominate someone who is not only fit for the position by virtue of their experience, wisdom, and a track record of standing up for that which the constitution represents, we get instead political appointees who are nominated for their demonstrated devotion to the party and the state. Do liberals truly want conservative involvement? Select someone who is qualified for the position on something other than the basis of their devotion to the state and we just might have something over which we could deliberate. But picking someone like this thoroughly dissolves all deliberation and hope for cooperation in an instant - which is this administration's responsibility, not ours.

And rather than address this issue, which is dividing the country along lines of political ideology (and has been for decades), the left is presuming to challenge Conservatives here with asinine dilemmas like, "well which liberal progressive leftist do you think Obama should pick instead?" As if it's our responsibility to come up with a better liberal progressive leftist Obama would approve of that that whom he's already chosen - and if we don't, we're merely demonstrating our opposition to "anything and everything Obama does."

If that is what saddens and startles liberals these days, I pray they never have opportunity to experience the enlightened totalitarian utopia that would make them truly happy.

 

[Marek]

...and it won't matter when the GOP is next up to nominate someone, the Dems and its hoardes of jack-booted anarchistic regimists will come out against it with all the characteristic hatred, venom, and animosity they have in the past to oppose whomever is nominated. What's truly sad, no pathetic, is the denunciatory hypocrisy leveled at the right by those who not only do the very things of which they accuse them, but do it with all the haughtiness and hot air of self-congratulatory moral superiority that has been characteristic of the Dem party these past decades.

If you really believe that the actions of some democrats regarding supreme court nominations are "sad" and "pathetic," why do you emulate them? Why don't you try to take a rational position instead of an extreme, party-line stance? It really isn't that hard.

What is truly sad are the circumstances in place now that, rather than nominate someone who is not only fit for the position by virtue of their experience, wisdom, and a track record of standing up for that which the constitution represents, we get instead political appointees who are nominated for their demonstrated devotion to the party and the state. Do liberals truly want conservative involvement? Select someone who is qualified for the position on something other than the basis of their devotion to the state and we just might have something over which we could deliberate. But picking someone like this thoroughly dissolves all deliberation and hope for cooperation in an instant - which is this administration's responsibility, not ours.

Has there ever been a time when presidents nominated justices without taking into consideration their political views and levels of loyalty? Regardless, this is what I was trying to get at. If you see Kagan as someone that's too devoted to Obama or the democratic party, name some possible candidates that you think would be more independent and better qualified.

And rather than address this issue, which is dividing the country along lines of political ideology (and has been for decades), the left is presuming to challenge Conservatives here with asinine dilemmas like, "well which liberal progressive leftist do you think Obama should pick instead?" As if it's our responsibility to come up with a better liberal progressive leftist Obama would approve of that that whom he's already chosen - and if we don't, we're merely demonstrating our opposition to "anything and everything Obama does."

I never said it was your responsibility to "come up with a better liberal progressive leftist." I was just wondering who you'd rather see appointed. It's not that hard.

I was upset when Harriet Miers was appointed. I thought she lacked the intellectual capabilities and constitutional understanding that a supreme court justice should have. On the other hand, I was happy with Roberts and Alito, though I was a bit concerned that Alito would lack a presence on the bench. As a long shot, I would have liked to see Bush appoint Richard Posner with one of his nominations. Posner seems to be to be an ideal independent thinker and one of the great legal minds of our time.

I don't think Sotomayor or Kagan are terrible picks. Both seem to be extremely intelligent and experienced. Even so, I think there are better picks out there. Sunstein was my favorite, given his intellectual capabilities and views on specific issues.

See how I can take an objective view on the issue without interjecting my own political bias? Why can't you do the same?

If that is what saddens and startles liberals these days, I pray they never have opportunity to experience the enlightened totalitarian utopia that would make them truly happy.

Nonsense.

 

[BenJohnson]

Marek:

1) You say Kagan is "experienced." By her own definition, she is not. She has written, "It is an embarrassment that the President and Senate do not always insist, as a threshold requirement, that a nominee’s previous accomplishments evidence an ability not merely to handle but to master the ‘craft’ aspects of being a judge." Kagan has zero judicial experience and only spent a brief time as Solicitor General (where she lost her highest profile case, Citizens United, after her side argued the government could ban books). Please explain this lack of congruence.

2) "I never said it was your responsibility to "come up with a better liberal progressive leftist." I was just wondering who you'd rather see appointed. It's not that hard." No, you said "Obama would not nominate a conservative," so conservatives had to name a left-wing judge they would support. It's a neat rhetorical device but intellectually dishonest, as you prove by backtracking now that it's in the light.

3) To avoid further deflecting from this topic, please feel free to begin a discussion asking conservatives to name which judge who disdains the U.S. Constitution and the Founding Fathers they believe should be named to the Supreme Court for life. This thread is dedicated to the information in my article, which rejects the premise that such a nomination should be made.

 

[DaisyDay]

Marek:

2) "I never said it was your responsibility to "come up with a better liberal progressive leftist." I was just wondering who you'd rather see appointed. It's not that hard." No, you said "Obama would not nominate a conservative," so conservatives had to name a left-wing judge they would support. It's a neat rhetorical device but intellectually dishonest, as you prove by backtracking now that it's in the light.

This only makes sense if you divide the world into two and only two camps - conservative and liberal progressive leftist. There are steps both between and beyond.

 

[Marek]

Marek:

1) You say Kagan is "experienced." By her own definition, she is not. She has written, "It is an embarrassment that the President and Senate do not always insist, as a threshold requirement, that a nominee’s previous accomplishments evidence an ability not merely to handle but to master the ‘craft’ aspects of being a judge." Kagan has zero judicial experience and only spent a brief time as Solicitor General (where she lost her highest profile case, Citizens United, after her side argued the government could ban books). Please explain this lack of congruence.

It might be helpful to quote that entire passage:

Carter argues that both the President and the Senate ought to pay close attention to a nominee's (or a prospective nominee's) objective qualifications. There may be, as Carter notes, some disagreement as to what these are. Must, for example (as Carter previously has argued), a nominee have served on another appellate court--or may (as I believe) she demonstrate the requisite intelligence and legal ability through academic scholarship, the practice of law, or governmental service of some other kind? Carter writes that we must form a consensus on these issues and then rigorously apply it--so that the Senate, for example, could reject a nomination on the simple ground that the nominee lacks the qualifications to do the job. On this point, Carter surely is right. It is an embarrassment that the President and Senate do not always insist, as a threshold requirement, that a nominee's previous accomplishments evidence an ability not merely to handle but to master the "craft" aspects of being a judge. In this respect President Clinton's appointments stand as models. No one can say of his nominees, as no one ought to be able to say of any, that they lack the training, skills, and aptitude to do the work of a judge at the highest level.

Kagan doesn't believe, nor do I, that judicial experience is necessary to evidence one's qualifications to be an supreme court justice. We could go back and forth regarding whether or not her experience is better than some other potential nominee's experience. This is actually what I was hoping would happen. Unfortunately, conservatives here are unwilling to even provide examples of other individuals that might have more/better experience than Kagan. This is the conversation I wanted to have.

2) "I never said it was your responsibility to "come up with a better liberal progressive leftist." I was just wondering who you'd rather see appointed. It's not that hard." No, you said "Obama would not nominate a conservative," so conservatives had to name a left-wing judge they would support. It's a neat rhetorical device but intellectually dishonest, as you prove by backtracking now that it's in the light.

I don't see what the issue is with discussing which individuals conservatives would rather see nominated. I don't consider myself a conservative, yet I could look rationally at the Bush nominations. I opposed Miers, not because she was an evil fascist neocon, but because she legitimately lacked the qualifications for the supreme court. I could say that I'd rather see Roberts or Alito on the court. Why can't conservatives do the same?

 

[BenJohnson]

This only makes sense if you divide the world into two and only two camps - conservative and liberal progressive leftist. There are steps both between and beyond.

The clear implication of Marek's statement would be that liberals would nominate only liberals (in this context, judicial activists). I believe the assessment is correct but decline to approve of anyone with those views being given a blank check to redefine the Constitution for the rest of his/her natural life.

 

[Marek]

The clear implication of Marek's statement would be that liberals would nominate only liberals (in this context, judicial activists). I believe the assessment is correct but decline to approve of anyone with those views being given a blank check to redefine the Constitution for the rest of his/her natural life.

Apparently you're defining judicial activism as "liberalism," which is completely nonsensical. If you take an honest, unbiased approach, you'll see that liberal justices and conservative justices are both guilty of engaging in judicial activism.

If liberalism, or maybe judicial activism, is your main concern, why are you not pushing for the potential nominee that you see as the least liberal? It's completely legitimate to attack liberal views of law and the constitution, but when you are specifically addressing one supreme court nominee, it's pointless to say that it's a bad choice for the simple fact that she's a liberal. You missed the boat with that argument. Provide alternatives to Kagan and you might be taken seriously.