The Other McCain

"One should either write ruthlessly what one believes to be the truth, or else shut up." — Arthur Koestler

Trebling My Doubts On Elena Kagan

Posted on | May 12, 2010 | 23 Comments

by Smitty

I’ve been enjoined by the wonderful Cynthia to read Clark’s WSJ piece, as a Kagan apologist over the Solomon Act violation. Cynthia, via email, wishes to highlight that:

It wasn’t a Sixties anti-war thing. It WAS an anti-discrimination thing over DADT, which, as you might expect, I think is completely legitimate. All through this, the military was allowed to recruit at Harvard. What changed was whether they did it through an official department of the university, or through a student organization of Harvard military veterans. But the military always had access to recruit. It would be classy of you to post a new story about this and apologize — at least for considering her an anti-military/anti-war protester. She was upholding a policy aimed at ending discrimination that should indeed be ended.

While I won’t back down, I will elaborate. First, a bit of personal theory.

  1. What we do as individuals is one thing. EK’s opinion of DADT is, like her sexuality, something for which I’m simply going to offer resepect, if disinterest in the content. I really don’t care, have known homosexuals on active duty, and generally think that factoring out sexuality to the greatest extent possible is helpful to the combat effectiveness of a military unit.
  2. Speaking of units, once you assume a leadership position in one, civil or military, your individuality subordinates itself to the office. Here is where I really don’t care if EK is agitating for the right for human beings to consort with lizards, so long as it’s on her own time.

As a result of Alinsky’s Rule #12, people want to conflate everything. If I think that a Dean’s official decisions show insufficient grasp of the Constitution to merit an appointment to the Supreme Court, that must mean I owe an apology for holding a derogatory opinion of her as a person. Meh. I’ll bet she’s actually quite cool, and I’d get along as well with her as I do Cynthia. By this conflation of individual with office, if I think that the President’s policies are wrongheaded, I must be a raaaaacist.
The point I’m getting at is that fidelity to the office is what matters. Clark’s apology article, like so much Lefty thinking, buries the issue in the play-by-play in an effort to distract from the bigger questions:

  1. Why is the country broken?
  2. How has the SCOTUS factored into the breaking?
  3. How does confirming Elena Kagan offer hope of improvement?

Roger Pilon has an article at Cato to which your attention is drawn.

It’s unfortunate that we critique Supreme Court nominees today in ideological or political terms, because the Court is the nonpolitical branch of government. Justices are supposed to apply the law to cases before them — to call balls and strikes impartially, as then-Judge Roberts put it — not decide cases according to liberal, conservative or any other political values. Yet ever since liberals viciously attacked Robert Bork in 1987, that’s the way we’ve judged nominees.

The reason is simple: In large measure, we no longer live under the Constitution. Instead, after turn-of-the-century Progressives came to power during the New Deal, the Court began reading the document not as a limit on government but as a font of endless government powers and programs.

I’d disagree here. The Court has been politicized, I’d say, since the FDR’s infamous court packing trick. Judicial restraint has amounted to demoting the SCOTUS to an extra-Congressional committee. Said committee is chartered to derive mental gymnastic tricks which support the panem et circenses descending, manna-like, from the Federal cornucopia.

Sure, it’s easy to go back and criticize this all post-facto. Other than the part where the country is broke, we’ve all had our fun, haven’t we?

The Left cannot or will not face the music on this. Even the GOP’s best effort seems to argue that putting wings on a bus can make an aircraft, if we can just drive into a hurricane for lift.

Does Elena Kagan even think about these kinds of things? The non-Federal undertakings of Washington DC are our financial albatross. The Tenth Amendment, that tattered chastity belt, ‘prophetically’ included to mock the current debacle, has got to be the machete with which we hack the Federal government back to within Federal bounds. Sure, she can’t do it herself, but is she packing the gear to join the fight? Is she part of the problem, or part of the solution?

Back to Pilon:

First, for better or worse, modern Supreme Court confirmation hearings afford Americans an opportunity to reflect on issues that today are too rarely before the public, especially constitutional issues. Indeed, rarely do members of Congress even ask whether they have the authority, under the Constitution, to undertake proposals before them; they seem to think they may do whatever they imagine is politically expedient.

Second, thanks to the sheer ambition of the Obama administration, together with national indebtedness as far as the eye can see, we have before us today something called the Tea Party movement, the political implications of which have been seen recently in Virginia, New Jersey, Massachusetts and, just this past weekend, in Utah. And what, above all else, is this growing movement saying? “Give us back our Constitution!”

I would support a standing filibuster of all SCOTUS appointments from BHO, because I don’t think his judgement worthwhile in the task of preserving the country.

If Elena attains confirmation and reveal herself more judicially brilliant than Roberts, Scalia, Thomas, and Alito combined, I will cheerfully eat crow and sing her praises.
Previously:
A Rant
A Sequel

Update: Little Miss Attila takes me to task for my interpretation of the events, but let me quote the WSJ article:

When Ms. Kagan became dean in July of 2003, she upheld this newer policy. Military recruiters used OCS services, but at the beginning of each interviewing season she wrote a public memorandum explaining the exception to the school’s nondiscrimination policy, stating her objection to “don’t ask, don’t tell,” and expressing her strong view that military service is a noble and socially valuable career path that should be encouraged and open to all of our graduates.

In November 2004, however, the Third Circuit Court of Appeals found that the Solomon Amendment infringed improperly on law schools’ First Amendment freedoms. So Ms. Kagan returned the school to its pre-2002 practice of not allowing the military to use OCS, but allowing them to recruit via the student group.

So she may have be against the thing she later supported before she came out contrary to the position she had previously, courageously opposed. Whatever.

I’d like some clarity.

Update II: Via HotAir, WSJ also has a story about Elena Kagan’s West Point speech.  Interestingly, the meat of the Rule of Law/Constitutional Fidelity portion of the .pdf deals with Archie Cox, special prosecutor for Watergate.  While we shouldn’t denigrate standing up to an autocratic Nixon, it would be interesting to hear her exegesis of the Federalism point I’ve been making.  Does the invariant Rule of Law shift to more of a Rule of Should?  Maybe it does, maybe it doesn’t.

Comments

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  • Adobe Walls

    Followed your link to Cynthia’s site have to take your word as to her wonderfulness. Personally I don’t trust any one, especially “conservatives” who don’t spit the word diversity with contempt every time they use it. As I stated earlier Kagan’s nomination should be filibustered on principal. The only appropriate response from the party of “Hell No” can not be let’s talk about it. As for Kagan’s probable confirmation, she is from and of the left you are in no danger of having to eat crow. The left is incapable of appointing,adjudicating or legislating anything constitutional. The left is unconstitutional in the same sense that 7-up is the uncola.

  • Adobe Walls

    Followed your link to Cynthia’s site have to take your word as to her wonderfulness. Personally I don’t trust any one, especially “conservatives” who don’t spit the word diversity with contempt every time they use it. As I stated earlier Kagan’s nomination should be filibustered on principal. The only appropriate response from the party of “Hell No” can not be let’s talk about it. As for Kagan’s probable confirmation, she is from and of the left you are in no danger of having to eat crow. The left is incapable of appointing,adjudicating or legislating anything constitutional. The left is unconstitutional in the same sense that 7-up is the uncola.

  • http://littlemissattila.com Little Miss Attila

    Then I suppose we should simply submit to a far-left appointee who did NOT hire conservatives/libertarians at Harvard Law.

    I shall hold my breath until Barack Obama submits a 100% conservative candidate.

    {{turning blue}}

  • http://littlemissattila.com Little Miss Attila

    Then I suppose we should simply submit to a far-left appointee who did NOT hire conservatives/libertarians at Harvard Law.

    I shall hold my breath until Barack Obama submits a 100% conservative candidate.

    {{turning blue}}

  • http://theothermccain.com smitty

    @LMA,
    Can we sing the blues-in-the-face together?

  • http://theothermccain.com smitty

    @LMA,
    Can we sing the blues-in-the-face together?

  • http://www.aconservativelesbian.com/ Cynthia Yockey, A Conservative

    Smitty,

    Kagan was not flip-flopping on allowing the military recruiters to recruit — what changed was the school’s ability to fight the military’s threats to strip Harvard of all of its federal funding if they couldn’t recruit through Harvard’s OCS office rather than by invitation from a military veteran alumni group. Kagan was dean of the Law School, which would not have been affected, but federal money is 15 percent of Harvard’s income so they fought when they could win and folded when they couldn’t.

    Also nobody considers this country more broken than the Left does, but isn’t the fact that they want SCOTUS to do something about that one of conservatives’ worst nightmares?

  • http://www.aconservativelesbian.com/ Cynthia Yockey, A Conservative Lesbian

    Smitty,

    Kagan was not flip-flopping on allowing the military recruiters to recruit — what changed was the school’s ability to fight the military’s threats to strip Harvard of all of its federal funding if they couldn’t recruit through Harvard’s OCS office rather than by invitation from a military veteran alumni group. Kagan was dean of the Law School, which would not have been affected, but federal money is 15 percent of Harvard’s income so they fought when they could win and folded when they couldn’t.

    Also nobody considers this country more broken than the Left does, but isn’t the fact that they want SCOTUS to do something about that one of conservatives’ worst nightmares?

  • http://www.anti-republicanculture.com Howard Towt

    “The tenth Amendment – that tattered chastity belt.”

    That’s pretty well put. Thank you for some excellent prose.

  • http://www.anti-republicanculture.com Howard Towt

    “The tenth Amendment – that tattered chastity belt.”

    That’s pretty well put. Thank you for some excellent prose.

  • http://theothermccain.com smitty

    @Cynthia,
    If you look at the posts I’ve written on this, I’m arguing that the SCOTUS has committed serial sins of omission. Fallen short of its duty to protect the Constitution. Hence unsustainable entitlements and debt.
    The conservative nightmare is that continued sins of commission, in permitting the Congress to find new ways to enlarge Federal power, will reach a point of unstoppability, to which we seem close.

  • http://theothermccain.com smitty

    @Cynthia,
    If you look at the posts I’ve written on this, I’m arguing that the SCOTUS has committed serial sins of omission. Fallen short of its duty to protect the Constitution. Hence unsustainable entitlements and debt.
    The conservative nightmare is that continued sins of commission, in permitting the Congress to find new ways to enlarge Federal power, will reach a point of unstoppability, to which we seem close.

  • Adobe Walls

    Kagan is a leftist and therefore part of the problem. Her policy of fighting DADT and the methods used to do so was not a principled fight against oppression it was a violation of federal law. Not a very reassuring demonstration of respect for law or the constitution. Entirely consistent however with the Social Democratic view of constitutional flexibility.
    The left does indeed view the country as broken. Their view of SCOTUS’s role is to rubber stamp unconstitutional legislation and when the time comes turn the other way as Liberty meets it’s end hands bound…blindfolded in front of Adobe Walls.

  • Adobe Walls

    Kagan is a leftist and therefore part of the problem. Her policy of fighting DADT and the methods used to do so was not a principled fight against oppression it was a violation of federal law. Not a very reassuring demonstration of respect for law or the constitution. Entirely consistent however with the Social Democratic view of constitutional flexibility.
    The left does indeed view the country as broken. Their view of SCOTUS’s role is to rubber stamp unconstitutional legislation and when the time comes turn the other way as Liberty meets it’s end hands bound…blindfolded in front of Adobe Walls.

  • Estragon

    Kagan is going to suck as a Justice, without doubt. Now conservatives may understand the consequences of their lack of enthusiasm for a Republican nominee, however flawed.

    BUT – suppose we could filibuster her nomination successfully (we can’t, of course, Snowe, Collins, probably Brown and perhaps others will vote for her and certainly will not join a filibuster). WHO do you suppose Obama would send up next? Seen his “short list” – with the possible exception of Garland, they are all hard lefties. He would nominate an extreme lefty to replace her.

    Does anyone seriously think we could successfully filibuster TWO Obama nominees IN A ROW? Really? Congratulations! You qualify for the J.D. Hayworth Award for complete stupidity!

    Here ya go:

    “The short list includes: Solicitor General Elena Kagan; Judge Merrick Garland of the U.S. Court of Appeals, D.C. Circuit; Judge Diane Wood of the Seventh Circuit Appeals Court in Chicago; Democratic Michigan Gov. Jennifer Granholm; former Georgia Supreme Court Chief Justice Leah Ward Sears; Homeland Security Secretary Janet Napolitano; Harvard Law School dean Martha Minow, who was once the president’s professor; and Judge Sidney Thomas of the Ninth Circuit Appeals Court in San Francisco.

    There are others not on the short list whom the president might consider, including White House official Cass Sunstein, and Sen. Sheldon Whitehouse, D-R.I., is being pushed by some on Capitol Hill, sources said.”

    Can you say, “Madam Justice Wood”? Mmmkay, I knew that you could . . .

  • Estragon

    Kagan is going to suck as a Justice, without doubt. Now conservatives may understand the consequences of their lack of enthusiasm for a Republican nominee, however flawed.

    BUT – suppose we could filibuster her nomination successfully (we can’t, of course, Snowe, Collins, probably Brown and perhaps others will vote for her and certainly will not join a filibuster). WHO do you suppose Obama would send up next? Seen his “short list” – with the possible exception of Garland, they are all hard lefties. He would nominate an extreme lefty to replace her.

    Does anyone seriously think we could successfully filibuster TWO Obama nominees IN A ROW? Really? Congratulations! You qualify for the J.D. Hayworth Award for complete stupidity!

    Here ya go:

    “The short list includes: Solicitor General Elena Kagan; Judge Merrick Garland of the U.S. Court of Appeals, D.C. Circuit; Judge Diane Wood of the Seventh Circuit Appeals Court in Chicago; Democratic Michigan Gov. Jennifer Granholm; former Georgia Supreme Court Chief Justice Leah Ward Sears; Homeland Security Secretary Janet Napolitano; Harvard Law School dean Martha Minow, who was once the president’s professor; and Judge Sidney Thomas of the Ninth Circuit Appeals Court in San Francisco.

    There are others not on the short list whom the president might consider, including White House official Cass Sunstein, and Sen. Sheldon Whitehouse, D-R.I., is being pushed by some on Capitol Hill, sources said.”

    Can you say, “Madam Justice Wood”? Mmmkay, I knew that you could . . .

  • http://thecampofthesaints.wordpress.com Bob Belvedere

    Linked to at:
    Who Is Elena Kagan

  • http://thecampofthesaints.wordpress.com Bob Belvedere

    Linked to at:
    Who Is Elena Kagan

  • Adobe Walls

    What part of principled fight are we NOT comprehending here? I can’t seem to find a birth date for Martha Minow, she started teaching at Harvard in 81 so she could be older than Wood. Since we won’t like whom ever BHO selects the person most likely to die first is the more helpful. As I don’t have any health info on any of the constitutional tragedies on the above list I’d prefer the oldest of the group. If there’s a more scientifically valid method of determining the earliest replace by-date I’m listening.

  • Adobe Walls

    What part of principled fight are we NOT comprehending here? I can’t seem to find a birth date for Martha Minow, she started teaching at Harvard in 81 so she could be older than Wood. Since we won’t like whom ever BHO selects the person most likely to die first is the more helpful. As I don’t have any health info on any of the constitutional tragedies on the above list I’d prefer the oldest of the group. If there’s a more scientifically valid method of determining the earliest replace by-date I’m listening.

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