Exploring Kagan

May 10, 2010

President Barack Obama’s nominee for the Supreme Court, Elena Kagan, once wrote that Senate confirmation hearings for Supreme Court judicial nominees should explore a “nominee’s set of constitutional views and commitments.” By all means, let’s accommodate her and begin exploring.

We could start with the presumption, given Obama’s ideology and judicial philosophy, that any nominee he chooses will be troubling for advocates of judicial restraint and interpreting the Constitution according to its original understanding. But let’s put that aside for this little exploration.

On my initial research, a number of problematic areas have surfaced. Consider, for starters:

–She has no judicial experience and hardly any experience practicing law. She’s mainly been an academic. I confess this one bothers me less than others, for I believe an intellectually honest academic, with proper respect for the Constitution, could make a fine appellate judge.

–Kagan, as dean of Harvard Law School, joined an amicus brief in an appeal to the U.S. Court of Appeals for the 3rd Circuit and another brief to the Supreme Court challenging a congressional law that denied federal funding to universities that didn’t allow military recruiters access to their campuses. Kagan was outraged at the military because of its “don’t ask, don’t tell” policy, which banned openly homosexual men and women from the service, once calling it “a profound wrong — a moral injustice of the first order.”

–Kagan clerked for Justice Thurgood Marshall. Following Marshall’s death, Kagan wrote a glowing tribute to him in the Texas Law Review. Two passages from her article deserve particular scrutiny. She wrote, approvingly: “In Justice Marshall’s view, constitutional interpretation demanded, above all else, one thing from the courts: it demanded that the courts show a special solicitude for the despised or disadvantaged. It was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government — to safeguard the interests of people who had no other champion. The Court existed primarily to fulfill this mission.” Kagan said Marshall told her the other justices had rejected his proposal for a new Supreme Court rule: “When one corporate fat cat sues another corporate fat cat, this Court shall have no jurisdiction,” Kagan wrote. “However much some recent Justices have sniped at that vision, it remains a thing of glory.”

Like Obama and Marshall, Kagan apparently believes the court exists to protect the little guy against evil corporate America, not to interpret the Constitution and the law as written. It’s also interesting, is it not, that Marshall used the phrase “corporate fat cat” long before Obama adopted it — as part of his class warfare rhetoric — to slander financial institutions. But don’t just gloss over the leftist buzzwords “despised or disadvantaged.” What groups do they mean by “the despised”? Perhaps they mean those who don’t agree with their radical idea of unconstitutional wealth redistribution “despise” recipients of such extreme wealth transfers. Or maybe they’re implying that conservatives “despise” minorities. Don’t scoff. I’ve heard such toxicity before from leftists.

At the outer extreme is a view espoused by another Obama appointee, “regulatory czar” Cass Sunstein. In a Harvard Law Review article, Sunstein wrote that “homosexuals are subject to a deeper kind of social antagonism, connected not only with their acts but also with their identity.” He went on to say that homosexuals are “members of a despised group,” which some want to “isolate and seal off” because they are “thought to be in some sense contaminating or corrosive” and “not fully human.”

–The next problematic passage from Kagan’s Marshall tribute was her boastful recitation of Marshall’s declaration that “the Constitution, as originally drafted and conceived, was ‘defective.’ … The Constitution today … contains a great deal to be proud of. ‘(B)ut the credit does not belong to the Framers. It belongs to those who refused to acquiesce in outdated notions of ‘liberty,’ ‘justice,’ and ‘equality.'” Kagan said, “Our modern Constitution is (Marshall’s).”

–In a Harvard Law Review article in 2001, Kagan wrote, somewhat gleefully, that the most important development in administrative law in the last two decades was the “presidentialization of administration — the emergence of enhanced methods of presidential control over the regulatory state.” Former President Bill Clinton, said Kagan, faced “for most of his time in office with a hostile Congress … turned to the bureaucracy to achieve, to the extent it could, the full panoply of his domestic policy goals.” Sound familiar? Remember when Obama’s chief of staff, Rahm Emanuel, said that because much of Obama’s legislative agenda had stalled in Congress, he planned on “an array of actions using his executive power to advance energy, environmental, fiscal and other domestic policy priorities”?