An Ol' Broad's Ramblings
President Obama’s latest choice for the Supreme Court has held a number of high-profile jobs over the years, but she has left a relatively thin paper trail, with one major exception. As the dean of Harvard’s law school, Kagan fought to bar military recruiters from the university’s campus. Her reasoning? Even with two wars in progress, she contended, Don’t Ask, Don’t Tell should disqualify the US military from having any association with the school. “I abhor the military’s discriminatory recruitment policy,” she said, describing it as a “moral injustice of the first order.”
Critics say Kagan’s legal arguments on the matter are so preposterous that they raise doubts about her ability to serve on the bench. And indeed when the Supreme Court later rejected her position on military recruiting at Harvard, it did so unanimously.
Aides indicate that Obama will introduce Kagan, 50, as a legal “trailblazer:” She was the first female dean at Harvard Law, the nation’s first female solicitor general, and would become only the fourth woman to sit on the Supreme Court.
Yet Kagan is highly unusual in one way — she has never been a judge. It’s the first time in nearly four decades that someone would join the court, if confirmed, without any prior judicial experience. The last to do so was William Rehnquist, who went on to become chief justice.
Kagan would be the youngest member of the court. And though she comes from outside the “judicial monastery” that some members of Congress had hoped for, she is an insider. She has clerked at the Supreme Court, advised Biden when he was a senator during Ginsburg’s confirmation hearing, and served in a policy role in the Clinton administration. Obama has said he was looking for a justice who understood that actions of the executive and legislative branches be treated with respect, even as it is up to the court to be the final word on constitutionality.
Critics also say that Kagan would bring less legal experience to the job than any of her recent predecessors. She worked two years as a private lawyer, with the rest of her career in government and academia. She was chosen by Clinton for a spot on the U.S. Court of Appeals for the District of Columbia Circuit when she was 39, but the Republican-controlled Senate did not bring her nomination to a vote.
The lack of judicial experience may be a negative in terms of the public’s reaction to the pick. In the latest Washington Post-ABC News poll, seven in 10 Americans said service as a judge is a factor in favor of a nominee, the most to say so on any attribute tested in the poll.
Indeed, if she became a Justice, one wonders if she would be able to distinguish cases like DADT, where one’s orientation is an employer’s legitimate concern, and cases where it wouldn’t be, such as forbidding gays from teaching in public schools (which, by the way, no less a social conservative than Ronald Reagan opposed). Further, the hyper-emotional rhetoric—“moral injustice of the first order”—is a good indication that “empathy” would take precedence over constitutional analysis in her judgment.
It’s not much of a stretch to predict that Elena Kagan would be inclined to use her vote to crusade against other perceived “profound wrongs,” and that, in other military-related cases to come her way, she’d be prejudiced against an institution she believes capable of grave “moral injustices.” Not that you’ll take my advice on this decision, Mr. President, but you’d do well to scratch the Solicitor General off the list.
“By nominating Miss Kagan to the Supreme Court, the president continues to demonstrate a brass-knuckles, Chicago-mobster mentality toward unifying our nation,” said Dr. Kevin Roberts, executive director of CFA. “Naming someone who has been so actively hostile to traditional marriage and to the unborn lays bare the president’s pro-abortion, anti-family agenda, in spite of what he says to the contrary.”
Roberts also expressed considerable angst over Kagan’s lurch toward so-called “international law,” which he described as “a disturbing, fashionable trend among leftist jurists.” He explained further, “By citing foreign laws in their American jurisprudence, liberal judges not only violate the sovereignty of the American people, but also advance a dangerous assault on the notion of the family. This is an affront to Catholic Church teaching, and we are, therefore, adamantly opposed to any public figure who promotes this thinking.”
Though Ms. Kagan has not written extensively on the role of a judge, the little she has written is troubling. In a law review article, she expressed agreement with the idea that the Court primarily exists to look out for the “despised and disadvantaged.” The problem with this view—which sounds remarkably similar to President Obama’s frequent appeals to judges ruling on grounds other than law—is that it allows judges to favor whichever particular client they view as “despised and disadvantaged.” The judiciary is not to favor any one particular group, but to secure justice equally for all through impartial application of the Constitution and laws. Senators should vigorously question Ms. Kagan about such statements to determine whether she is truly committed to the rule of law. Nothing less should be expected from anyone appointed to a life-tenured position as one of the final arbiters of justice in our country.
“I just don’t understand why the Administration would want to makes themselves and their nominee vulnerable to the opposition at a time when American skepticism of Wall Street is at an all time high,” said a prominent progressive strategist speaking on the condition of anonymity. “This is like handing the Republicans the mantle of populism just for trying to oppose Kagen’s confirmation.”
(2) Digby examines what a Kagan selection would reveal about Obama, and she particularly focuses on Kagan’s relationship to Goldman Sachs. That relationship is relatively minor, but it is illustrative in several ways and will certainly be used by Republicans to advance their attacks on this administration as being inextricably linked with Wall Street. The Huffington Post’s Sam Stein has more on the Kagan/Goldman Sachs connection.
(3) Following up on the article published yesterday in Salon by four minority law professors — which condemned Kagan’s record on diversity issues as “shocking” and “indefensible for the 21st Century” — Law Professor Darren Hutchinson of American University School of Law today writes that Kagan’s record is “abysmal.”
Yesterday, I read everything Elena Kagan has ever published. It didn’t take long: in the nearly 20 years since Kagan became a law professor, she’s published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review—a scholarly journal edited by Chicago’s own faculty—and a short essay in the school’s law review. She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing. (While it’s true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard’s dean, and for never having written anything intended for a more general audience, either before or after taking that position.)
Progressives – and indeed people of all political inclinations – should demand more. In theory, there’s nothing wrong with nominating someone to the Supreme Court who has never been a judge. And I have no reason to doubt that Elena Kagan is as fine a person as all her friends say she is. But in practice, a lifetime appointment to the Court should require more than having lots of friends in high places. Meriting such a position should involve clearing a very high evidentiary bar. In Kagan’s case, that bar seems to have been placed on the ground.
After reading all this, and much more, the only conclusion I can come to……this is another person that D’Bama wants to put in a position of power that is totally unqualified. Not extremely surprising.