Jewish World Review May 7, 2010 / 23 Iyar 5770
A stealth mission for Elena Kagan
By Wesley Pruden
http://www.JewishWorldReview.com | It takes a tough man to raise a tender chicken, as we all know, and it's going to take a big justice to do all the things expected of Elena Kagan.
Some of the senators — not most, but some — will be interested to know what she thinks of the Constitution as the Founders wrote it. President Obama will want her to rule on the law as decent and high-minded folk like him think it ought to be, not what it is. The gay community, which rarely seems very gay, expects her to be a reliable vote for changing the definition of marriage and for remaking the military into something Barney Frank can be proud of. Since Mzz Kagan has argued that the Supreme Court's role is mainly to tend the interests of "the despised and disadvantaged," somebody will be disappointed.
President Obama has a larger view of how his crusade should remake America. He's replacing a liberal with a "progressive" — the ultimate distinction without a difference — but Mzz Kagan's role will be to reshape Anthony Kennedy, who, like the amiable cow in the Robert Louis Stevenson poem, is "blown about by all the winds that pass." He could nevertheless be transformed with a successful convictions transplant by Dr. Kagan into a reliable fifth vote.
Some of the president's allies on the far left, and even the not-so-far left, are grumbling that she's not really one of them. They're unhappy that Mzz Kagan was polite and civil to conservatives at Harvard Law School, where she was the dean. Under her tenure the odd conservative in the faculty lounge was even allowed to use the restroom and could sip an occasional cup of coffee from china decent folks used. This is supposed to allay fears and concerns of conservative senators who would otherwise fret over her lack of judicial experience, her limited courtroom experience and a dearth of her opinions on the written record.
The early conventional wisdom is that Mzz Kagan is nice, bright and highly intelligent, a "wise Jewess" like the "wise Latina" that Justice Sotomayor assured us she was, and pressing the nominee on her judicial philosophy and intellectual temperament is something that only a churlish Republican senator would do. This will probably be enough to intimidate the Republican senators whose mission in Washington is to assure everyone that Republicans are not really as bad as people think they are.
But there are early exceptions. Edwin Meese, the U.S. attorney general in the Reagan administration, expects the nominee, or any nominee, to "demonstrate a thorough fidelity to apply the Constitution as it was written rather than as they would like to rewrite it." The tutorial, sorely needed since the president and his nominee seemed to have been deprived of it in law school (and were playing hooky from seventh-grade civics class), continues: "The judiciary is not to favor any one group, but to secure justice equally for all through impartial application of the Constitution and laws. Senators should vigorously question [Mzz] Kagan about [earlier] 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."
Mzz Kagan has always tried to keep her opinions hidden or cleverly camouflaged, as if she might one day want to be a stealth candidate for the court. She has been open and passionate only about expanding rights of gays and lesbians at the expense of everyone else. Sen. Arlen Specter, of all people, called her out during the hearings on confirming her as the solicitor general last year. He was a Republican then, of course, but he voted against confirming her after "having gone to substantial lengths, really great lengths, to find out about Dean Kagan's approach to law and approach to the job of solicitor general and to get some of her ideas on the law." When the hearings ended, he didn't "know much more about her … than when we started the process." (Mr. Specter explained Thursday that he's more open now, and besides, qualifications for solicitor general and Supreme Court justice are "different.") Presumably solicitor generals should be held to higher standards than mere justices.
President Obama says he wants justices with "a keen understanding of how the law affects the daily lives of the American people." Even against this bizarre standard for choosing judges, Mzz Kagan, who booted military recruiters off the Harvard campus and was a one-time consultant to Goldman Sachs — yes, that Goldman Sachs — fails. The hearings could be a teaching moment.
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© 2007 Wesley Pruden