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.”

Stevens Retiring; Let’s Get Ready To Rumble

April 9, 2010

Justice John Paul Stevens has made it official. He’ll be retiring at the end of the current court session in June.

Stevens is the leader of the liberal wing of the Supreme Court, so Obama’s pick to succeed him probably won’t be appreciably worse than Stevens. However, this is yet more evidence that elections have consequences because this will solidify the liberal bloc of the Court for years to come. It’s a good bet that Ruth Bader Ginsburg will also retire sometime before 2012 since she’s getting up in years and suffers from poor health. Hopefully by then there will be a Republican majority in the Senate that can curb Obama’s worst impulses.

But right now that majority does not exist and there is nothing the Republicans can do short of a filibuster to prevent Obama from appointing one of his radical fringe fellow travelers to the highest court in the land.

Sonia Sotomayor was a lousy pick. She was qualified, but the assets that got her the job were her ethnicity and her willingness to legislate the liberal agenda from behind black robes. With the Democratic majority in jeopardy after November, this may be Obama’s last chance to appoint a hardcore radical. It’s a chance he won’t give up. Look to the most radical president this nation has ever had for the most radical nominee ever made to the Supreme Court.

Here’s Michelle Malkin on the retirement, and Hot Air believes this may present problems for the Democrats. We shall see.

Your Daley Lesson In Progressive Politics

March 2, 2010

Drudge is highlighting this article about the Supreme Court taking up the issue of gun control in Chicago.

I won’t get into the issue here, but I want to take a second to comment on this statement from Chicago’s mayor:

Mayor Richard M. Daley wants the ban to remain in place. He says local officials need flexibility to decide how best to protect their communities.

“We have the right for health and safety to pass reasonable laws dealing with the protection and health of the people of the city of Chicago,” Daley said.

This is the perfect indicator of the Progressive/Liberal mindset. “We have the right…”

I really can not say this often enough or loud enough:

Government has no rights; it has powers that can be rescinded, amended, or strengthened by the electorate. Again…people have rights; governments do not. Buying into the argument that the government has a “right” to do anything is conceding that the government has absolutely no limits whatsoever.

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.

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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