The Cowardice of Kagan

June 29, 2010

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.”

Conservatives Win On Sotomayor

July 21, 2009

Last week the Senate held hearings with Judge Sonia Sotomayor to determine whether she was fit to be named to the Supreme Court. As expected, the lines of battle in the Senate were along party lines with the resident quislings on the Republican side.

The issue at hand was not whether or not Sotomayor has the experience to be named to the Supreme Court. Clearly, she does. The issue was whether or not she has the objectivity and temperament to dispense “blind” justice, or whether she would let her emotions and personal prejudices hold sway and rule based on the outcomes she desired. Sotomayor was a case study for the much larger question of judicial activism.

The outcome of this was never in doubt. Sonia Sotomayor will be confirmed as a Supreme Court Justice. While this may appear to be a clear victory for Obama and the liberals in the Senate, the truth is actually far different.

While the outcome of this “battle” was never in doubt, it appears that the larger ideological war has been won by the conservatives. Sonia Sotomayor will be confirmed, but first she had to pretend to be John Roberts, Sam Alito, Antonin Scalia, and Clarence Thomas combined. In other words, she had to lie in order to get confirmed. Does anyone out there really believe that after a long career of espousing life experiences and empathy as a judge her sole criteria for judging will now be total “fidelity to the law,” as she said in the hearings? Sonia Sotomayor will make her decisions based on her feelings about the case. This is why Barack Obama, who champions “empathy” above all else in a judge, chose her. He knows that she will vote consistently based on the outcomes she wishes to see, and twist the words of the Constitution to back up her opinion. Since she shares the same worldview as Obama (he is a smart man; he would never have nominated her if she did not share his views), her votes on the Court will mirror his mindset, and he is clearly a man who thinks that the law is flexible.

But Sotomayor and the Democrats who coached her testimony in the weeks leading up the hearings, know that this mindset is way outside of the average American’s view of the law. So what did we hear in her testimony? We heard a hardline judicial conservative, one who completely disavowed Barack Obama’s “empathy” standard. We heard a tacit acknowledgement that the sort of judicial activism favored by liberals is a bad idea.

What we heard in Sotomayor’s testimony was a concession that judicial restraint and judicial conservatism is what the American people want. They won’t get it with Sotomayor, or anyone else Barack Obama names to Federal courts, but it is clearly a winning issue for conservatives.

Iowahawk on Sotomayor

July 16, 2009

Mind you, I hate the fact that Iowahawk is funnier than me, but you must give credit where it’s due. His piece on Sotomayor is priceless.

Sonia’s Misspoken Speech

June 2, 2009

Over at National Review and in his syndicated column, Rich Lowry does a nice job of dismantling the claim from the Administration and Left-wing blogs that Sonia Sotomayor “misspoke” when she claimed that Latino women are better judges than white men.

A Disregard For The Law

May 26, 2009

Well, at least Supreme Court nominee Sonia Sotomayor thinks it’s funny that people might criticize her for making the law in her own image when she disagrees with it.

Well, Sonia, this is not a joke. Nobody elected you to any position for you to “make policy.” That is the jurisdiction (perhaps you’re familiar with the word) of legislatures.

When a law is first conceived, it is usually done to address some sort of grievance or some loophole in an existing law. Legislators are allowed to take everything into account: How will this new law affect the poor? The rich? Will it have an adverse impact on blacks? On whites? On Hispanics? What will be the long term effects of the law?

In an ideal world, laws would be carefully written and even more carefully read, thoroughly debated both honestly and publicly at great length, and voted on without regard to party politics or identity politics. The votes cast for or against the law would be based on the best argument in the honest and public debate, and lawmakers would be moved by their own consciences and by the opinions of both their fellow legislators and the public. Laws should be passed slowly and carefully because once enacted they become very difficult to overturn. We don’t live in an ideal world, of course, and we never will. We can’t immanentize the eschaton, remember?

Jurists like Sonia Sotomayor believe something far different. They believe that justice is more important than law, and that justice is defined as whatever they wish it to be.

Law is the pursuit of justice, and when a law creates unjust results, the law can be changed by the same (or succeeding) legislatures. Unforeseen effects of the law can be taken into account and legislators, after another lengthy, public, and honest debate, can amend the law or eliminate it entirely. It is unfortunate when justice is not served by the law, but it happens and there are checks in place to further the cause of justice.

It is the role of the people of this country to elect legislators that will put into place the laws the people want. It is the role of the legislators to pass, and amend, laws. It is the role of the judiciary to see that the laws are being followed according to what they say. Sonia Sotomayor, and her soon-to-be fellow justices Ruth Bader Ginsburg, John Paul Stevens, and to a slightly lesser degree, Anthony Kennedy turn this notion upside down.

In Sotomayorland, the people elect the legislator, the legislators debate and pass the laws, and then Sonia Sotomayor decides what the law really means. If the law says one thing, and Sonia Sotomayor wishes it said something else, then poof! like magic, the law is interpreted to mean something else.

Recently a group of New Haven firefighters were blocked for promotion because they were white (and, in one case, Hispanic). They did better on the tests, but were told that because no blacks did well enough on the test to get promoted the results of their hard work and hours of study were eliminated. They sued on the grounds of discrimination in what certainly appears to be an open and shut case.

Enter Queen Sonia.

The case ended up in Sotomayor’s court, where the Queen apparently believes that it’s okay to discriminate against non-blacks in the name of diversity. She dismissed the court case without so much as an explanation in what one of her fellow judges (a liberal judge, no less) said was an attempt to bury the case. In Sotomayorland, whether the litigants were right or wrong under the law was irrelevant. They were wrong under Sonia Sotomayor.

This disregard for the law as it is written has led her decisions to be overturned numerous times. She has had several decisions appealed to the Supreme Court. Out of a possible 44 votes in her favor, Sonia Sotomayor has received only 11. What this means is that she is out of touch with even the liberals on the Supreme Court.

So what can be done? How do we keep a far-Left radical ideologue off the Supreme Court?

The short answer is that there is nothing we can do. Sonia Sotomayor (unless some scandal comes to light that forces Obama to pull her name) will sit on the Supreme Court and she will continue to make legal decisions based on her personal and political beliefs with an utter disregard for the letter of the law. This is why she was picked.

What judicial conservatives of all parties should do is open this debate publicly and honestly about what it means to be a justice and whether or not judicial activism is something that is desirable. Sotomayor should be grilled without mercy about her beliefs and her prior rulings. The left will try to paint anyone who opposes her as an anti-Hispanic bigot and her opponents will need to be able to counter that disgusting and bogus charge, not shrink in fear of it. Then she should be voted on by the Senate. No filibusters, just a straight up or down vote.

Elections have consequences, and Sonia Sotomayor is going to be a doozy.

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