The Cowardice of Kagan

Today the blowhards in Congress get to question Supreme Court nominee Elena Kagan. Despite her 1995 writing that the nomination hearings are “vapid and hollow” because the nominees will not speak their minds and actually answer questions in a forthright manner, Kagan is being as bland and devoid of substance as a Carpenters album.

Politically, of course, it’s a smart tactic. The last Supreme Court nominee with the cojones to speak his mind about judicial issues was Robert Bork, whose treatment by the Senate led to his last name becoming a verb meaning “to smear.” Since then, every Supreme Court candidate has told the Congress absolutely nothing. It really started with Ruth Bader Ginsburg who was counseled to express no strong opinions and to mouth support for the rule of law and the Constitution, even though she believes in neither of these fundamental aspects of American life. Ginsburg is so far out of even the liberal mainstream that had she been honest about where she stood on the issues, she would have put her nomination in jeopardy.

Of course, conservative nominees do the same thing. Justices Roberts and Alito were bland at best in their confirmation hearings, expressing support for precedent and for original intent and avoiding specificity by claiming that they couldn’t offer opinions on issues that might someday be on the Court docket. More recently, Sonia Sotomayor used the same tactics and now it’s Elena Kagan’s turn.

There is a difference, however. When Roberts and Alito expressed their support for the Constitution, and promised to abide by the law as it is written, they were telling the truth. Sotomayor and Kagan are parsing their words very carefully to avoid outright lying.

Elena Kagan was right in her 1995 writing, even though she was guilty of overstating the case. It is actually correct for a nominee to decline comment on specific issues and specific cases because they may come before the Court. Where both Sotomayor and Kagan are being disingenuous is in their full-throated support of original intent and their denial that they will bring their own prejudices to bear.

Both Sotomayor and Kagan are judicial activists. They believe that the role of judges in America is to preside over disputes like Solomon, using their wisdom to provide outcomes that are fair and reasonable. We know this about them because it is the belief of the man who nominated them, Barack Obama, a man not likely to make the mistake of picking a Justice who will be anything less than far, far Left.

What really speaks volumes here is the fact that the Left feels they must hide their activist nature from the prying eyes of TV cameras and blogging heads. If Kagan believes that her judicial philosophy is legitimate, she should have the courage to sit before the Judiciary Committee and defend her philosophy. It’s a conversation long overdue in this country, but the Left does not want to have this discussion because they know that they hold the losing hand with the American people. If Kagan has the courage of her convictions, she should come right out and tell the Judiciary Committee that she will rule on cases based on the evidence, but also based on what her heart and her political convictions tell her is the fair thing to do. When Republicans and conservatives point out that her philosophy of law makes the very foundation of the country, the Constitution, an arbitrary and meaningless document, she should be ready to explain how her philosophy strengthens the Founding documents.

She will do no such thing. She can’t, because her philosophy is unpopular and untenable. The Left wing knows that they lack the will of the American people in getting their agenda passed by the Legislature, and so they corrupt the Court system by infiltrating the bench with people who rule based on the law as they wish it to be, not as it is written. In order to appoint these judges, the nominees must play the game and pretend to be something that they are not.

Politically it’s understandable. But by any other name, it’s also cowardice.

The Roundup: At National Review, Shannen Coffin offers first-hand evidence of a serious Kagan lie. Hot Air has more on the same topic. Breitbart TV has audio of Kagan defending a campaign finance reform law that would ban books, and The Anchoress weighs in on the same audio. There’s Michelle Malkin on Kagan Kabuki. At the American Spectator, Kagan tries to split the baby, like Solomon, on the nature of the Constitution and stands by her opposition to “Don’t Ask, Don’t Tell.”

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