Posted by
Patrick Henry on Friday, May 14, 2010 12:50:45 AM
When, in 1987, Ronald Reagan nominated conservative legal scholar Robert Bork
to be an associate justice of the United States Supreme Course, the usually civil and
agreeable process of confirmation turned ugly, with liberal Democrats led by the
late Senator Ted Kennedy tearing, slashing and burning him because he had the
temerity to answer their questions truthfully. Those answers reflected a strict
constructionist conservatism that threatened the Dems master social agenda, and
so they assailed the poor man until finally he withdrew his name from consideration.
Now, Barack Obama has nominated a second left-leaning judge in Elena Kagan.
If turnabout is fair play, should Republicans now "bork" her? That depends on
whether they can show that she, as Kennedy accused Bork of being, is "out of the
mainstream," and whether she can show cause why one with zero experience on
the judicial bench and a minimal catalog of legal scholarship is qualified for such
a prestigious nomination.
Since the Bork debacle, nominees to the court have waxed very cagey in answering
senatorial questions, often declining comment on grounds that issues surrounding
the issue at hand are already in train to come before the court, and a nominee dare
not appear to be pre-judging such cases. The tactic has worked like a charm, and
anyone who doubts Kagan will hide behind it is very naive indeed.
In light of her almost non-existent paper trail, Obama's contention that she is one
of America's "leading legal minds" is false on its face. Where are the extensive legal
opinions shedding light on the constitution? Where are the major cases argued before
high courts? Where is her bench experience, or her life outside the cloisters of
academia and the beltway that would enable her, as Obama required, to understand
how laws affect the common man? The reason it matters is because being legally
anonymous is decidedly not a qualification for a lifetime appointment to the highest
court in the land.
In those instances when she has ventured out of the academic closet, the results
have raised more questions than they have answered. In a 1996 paper she argued
that freedom of speech was dependent on societal value, and could, in some cases,
be set aside if either "society" or the government, acting on pure motives, deemed
it in the public interest. In other words, you're welcome to say what we want you to
say. Otherwise, we can tell you to shut up.
When she was the dean of Harvard's law school she banned military recruiters
from campus because she considered "don't ask, don't tell" both immoral and wrong.
When congress passed the Solomon Amendment allowing the government to deprive
schools banning military recruiters of public funding, Kagan joined a suit to have
it overturned. The matter was eventually heard by the supremes, who ruled against
Kagan and her co-complainants 8-0. She seemed flawed in both form and substance.
It is worth notng that what Kagan flaunted was not, as she argued, "the military's
policy," but the law of the land, passed by a Democratic congress and signed into
law by a Democratic president.
While she was an official in the Clinton government, another official leaked sensitive
information to an environmental group that used it to bludgeon the president and his
policies. It was Kagan's responsibility to investigate and prosecute the leaker, which
she failed to do. Could it have been because she was sympathetic to the violation
of the law -- again?
What is apparent here is that Elena Kagan is a liberal judicial activist who decides
that the constitution is whatever she and her leftist cronies want it to be. That does
nothing to advance justice, and much to undermine the legal foundation upon which
our democracy is built.
So should Elena Kagan be "borked?" The only way to stop her nomination from
going forward is the filibuster, and since three GOP senators have already said they
see no problem with her, that seems like the impossible dream. But Kagan herself
once argued publicly that nominees to the court should be stringently examined. Let
the stringency begin.