Sunday, May 23, 2010


     There has been much media speculation about Elena Kagan's sexual orientation. That is not what this article is about. In terms of her service on the Supreme Ct. it doesn't matter. Her support of the homosexual political agenda is the standard liberal viewpoint and well known based on her strong condemnation of the military's "Don't Ask Don't Tell" policy regarding homosexuals. Her broader ideological viewpoint is of more interest and more concern..

     By all the anecdotal offerings from Kagan's colleagues and associates, she is a highly intelligent, hard working and personable individual. While admirable personal characteristics, these are largely peripheral to the political debate that accompanies every Supreme Court nomination. These debates and the nomination hearings that follow, have become highly charged and contentious over the last thirty years or so, at least since the undoing of the Robert Bork nomination during the Reagan Administration in which he was viciously attacked for his conservative views. The general tenor of the debate since then has been over broad judicial philosophy: whether the nominee believes in a "living constitution", ever changing and adaptive to the circumstances of modern life, or the so called "strict constructionist" philosophy which requires the justices to seek out the original intent of the Framers and avoid "legislating from the bench." This latter tendency has been generalized under the label of "judicial activism". Both the conservative bloc and the liberal bloc on the current Court have been accused of this characteristic. This is an important issue because "legislation" coming from the Supreme Ct. is essentially irreversible, except by the Court itself. However, nominees of any ideological persuasion are reluctant to describe themselves as "activists" or would be "legislators" so there is little the Senate can do to discern such a tendency except read the written opinions of the nominees, most of whom in recent times have come up the professional judicial ladder from U.S. District Cts. to federal Appeals Cts.

     Thus the problem with the current nominee, Elena Kagan, who has never been a judge on any level and has no written record by which to evaluate either her legal acumen or her judicial philosophy. The problem however, is essentially academic since based on her background which includes stellar academic performance, the Dean of the Harvard Law School and two years as the Administration's lawyer before the Supreme Ct, in the office of Solicitor General, her confirmation is a given. In fact, only 8% of nominees to the Supreme Ct. have been rejected by the Senate. In the modern era, only three nominees, all by Republican presidents, have been rejected. Perhaps the most obviously liberal justice of all, Ruth Bader Ginsburg, who was a member of the ACLU Board and their General Counsel in the 1970s was affirmed by the Senate in a 96 to 3 vote.

     The pre-hearings debate will go on however and after some posturing on both sides over the desirability of "empathy", as cited by Obama, being a judicial characteristic and the aforementioned "living constitution" issue, the social issues will again likely predominate i.e. abortion under the guise of a "right of privacy", gun control, homosexual rights, and now, the status of immigrants. Despite the inevitability of Kagan's appointment to the Court, the White House is vigorously attempting to smooth out the hearing process by portraying Kagan as a "moderate"; a conciliator with a "center-Left" orientation.

     The obvious expectation from all quarters was that Obama, would be true to his own liberal instincts and nominate someone who would support that philosophy. The far Left core of the Democrat Party advocated for someone who would be the Left's Scalia, who they see as an uncompromising and sharp tongued creature of the Right. Obama, ever the political tactician sought someone less controversial but dependably liberal. Kagan seems to fit that bill perfectly. Without a record of judicial opinions and with a record of uncontestable intellectual skills, she will, by adopting the now commonplace position of refusing to answer specific questions about how she might rule on the controversial issues of the day, be assured of confirmation. Her actual philosophical orientation remains of interest however, in spite of the Administration's claims.

     While a senior at Princeton, Kagan volunteered to work on the Senate campaign of former U.S. Representative Elizabeth Holtzman who today, remains one of her supporters for her appointment to the Supreme Ct. If one is "known by the friends we keep" this is revealing. Holtzman is a far Left activist who made a national reputation for her enthusiastic service on the House Judiciary Committee hearings into the Watergate scandal which brought down President Nixon. She was a strong promoter of the feminist sponsored, Equal Rights Amendment to the Constitution which became more and more controversial as time went by and failed ratification by the necessary 38 states in spite of Holtzman's work to provide it with a 39 month extension for the ratification process after the original deadline expired.

     Holtzman ran for the U.S. Senate from New York in 1980. During the campaign, New York Republican Senator Al D'Amato said that as a member of the House, she had never voted for a Dept. of Defense appropriations bill. In 2006, Holtzman called for the impeachment of President George W. Bush. Holtzman lost the election and afterward,in a Princeton University publication, Kagan wrote; "I absorbed . . .liberal principles early." "More to the point, I have retained them fairly intact to this day." She hoped that the future would be "marked by American disillusionment with conservative programs and solutions and that a new, revitalized, perhaps more leftist left, will once again come to the fore." Obviously some individuals change their political views as they mature and youthful idealism, common in elite universities often wanes with maturity and exposure to the real world . But it is difficult to find such changes in Kagan either from her professional path or her public pronouncements.

     After graduation from Harvard Law School, Kagan clerked for Supreme Ct. Justice Thurgood Marshall, a widely respected civil rights icon but a knee jerk liberal whose votes rarely, if ever, varied from the strong liberal bloc on the Court. Kagan, as Marshall's clerk she could reasonably be expected to have participated in the crafting of those opinions.

     Other current supporters for Kagan's appointment are Robert Reich, liberal former Secretary of Labor in the Clinton Administration and current professor at the University of California at Berkeley. Another public supporter is Lani Guinier, who achieved notoriety when nominated by President Clinton for head of the Justice Departments'. Civil Rights Division. When her writings about race and politics became known, Guinier became known as the "Quota Queen." While she denied supporting actual numerical race based quotas, she supported such things as proportional representation for municipal governments to override the "winner take all" procedures common to U.S. elections and thus ensure minority representation no matter how lightly supported. Her book "Tyranny of the Majority" outlines her race conscious legal philosophy. President Clinton, claimed he wasn't familiar with her writings when she was nominated and withdrew her nomination.

     So this is the "moderate" Obama has nominated. Did her service in a law firm, then as Dean of the Harvard Law School, a White House Counsel in the Obama Administration and finally as Solicitor General, cause this "moderation"? Highly unlikely.

"If is walks like a duck and quacks like a liberal. . . " Well, we all know the rest.

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