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.
- 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.
- 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:
- Why is the country broken?
- How has the SCOTUS factored into the breaking?
- 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.
