Tuesday, May 11, 2010

More, um, Actually Less on Nominee Kagan

Consider this an addition to yesterdays post on Supreme Court Justice nominee Elena Kagan.

What a difference a day makes. The good thing about nominating someone to the SCOTUS who doesn't have much of a paper trail is that it doesn't take long to review her career. Almost 24 hours have elapsed since President Obama announced her as his next nominee and we're finding out more about her, kinda, sorta.

Even though her confirmation appears to be a slam dunk for Obama, the country deserves a rigorous examination of her judicial propensities. There are lots of things we need to know about how she will decide cases. We should receive a fair and accurate picture of her judicial philosophy in order to find out if she truly represents the mainstream views of Americans or if she posesses some other opinions that run counter to the Constitution.

Indeed, Kagan herself thinks this should be the case. The editors of NRO agree. She has written -

“The kind of inquiry that would contribute most to understanding and evaluating a nomination is . . . discussion first, of the nominee’s broad judicial philosophy and, second, of her views on particular constitutional issues . . . seeing how theory works in practice by evoking a nominee’s comments on particular issues — involving privacy rights, free speech, race and gender discrimination, and so forth — that the Court regularly faces.”
It's been a popular evasion in recent years for nominees to decline comment on their philosophy citing the fact that they may have to decide on cases that contain such issues and that their answers could somehow be interpreted as prejudice. This argument falls flat on its face the second the nominee is sworn in. Kagan even criticized Justice Ginsburg for evasiveness during her confirmation hearings:

“I was frustrated by what I called Justice Ginsburg’s ‘pincer movement’ — the tendency to say that questions were either too specific or too general to be able to answer, with little ground in between.”
This blog concurs. There is no reason that the American public, who must live with the Courts decisions, shouldn't know everything there is to know about how a potential justice will decide a case, in depth and with clarity.

This is especially important given as how many members of Congress introduce legislation seemingly without questioning the Constitutionality of the bills they propose. They just write a bill (or have someone else write it in many cases) and leave the Supreme Court to decide. Am I the only one who finds this at least questionable, if not downright irresponsible? Aren't there already many lawyers in Washington who should know whether or not a bill is Constitutional without having to go through a legal challenge to find out? If they don't know whether or not a bill will pass muster, perhaps they should scrap the bill in question and start over. After all, it's only peoples lives we're talking about. And their freedom.

And, lest we forget, Kagan was on the list of nominees from that gave us Sonia Sotomayor last year. Michelle Malkin remembers:

Dean Kagan has taken positions that are disturbingly out of the mainstream. For example, driven by her view that the “don’t ask; don’t tell” policy adopted by a Democrat Congress and President Clinton is “a profound wrong–a moral injustice of the first order,” she argued that it violates the First Amendment for the United States to withhold funds from colleges that ban the military from recruiting on campus. The Supreme Court unanimously rejected this view.

A Pajamas Media article also questions her fitness for high office - Can Kagan be a Justice even though she's never been a judge? That question is all the more reason for us to find out as much about her as possible.

There are even some who think she may move the court towards the right. I'd post a link, but I'm too busy laughing at that idea. Does anyone truly think Obama would pick someone for the highest court that would endanger his radical transformation of the country?

Indeed, it's the perfect strategy for Obama to install two SCOTUS Justices to insure that his transformation stays in place long after he is swept from office.

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