Saturday, June 26, 2010

Supreme Court Nominee Kagan Picks A Hero

Barack Obama's second nominee for the United States Supreme Court picked her judicial hero, then honored him at Harvard Law during her term as dean of the law school with a judicial prize. When asked recently about the 2006 ceremony, Elena Kagan reaffirmed her devotion to the judicial philosophy of Aharon Barak, former president of the Israeli Supreme Court (comparable to Chief Justice). Fortunately for Israel, that position is not a lifetime appointment.

Not surprisingly for an Obama nominee, the judge Kagan so esteems is a judicial supremacist par excellence. Kagan, like so many liberal legal scholars, believes and teaches her law students the concept of judicial supremacy as derived from the famous Chief Justice John Marshall. The only problem with that concept for lawyers and decent historians is that Marshall announced no such belief. Marshall established judicial review, not judicial supremacy. Quite the opposite from judicial supremacy, Marshall announced that the Constitution was the supreme law of the land, and that nobody, including himself, had the right to make policy decisions in conflict with the Constitution.

Distorting Marshall's viewpoint into near-unrecognizable pretzels, revisionist lawyers and judges have been attempting to rewrite the Constitution from the bench for nearly a century and a half, with a considerable acceleration with the onset of the Earl Warren Court. Yet all of those revisionist, judicial activists, and "living constitutionalists" of note in America have been downright shy compared to the outspoken Barak. In a way that couldn't even happen in America because we have a written foundational Constitution, the judicial supremacist Kagan announced from the Israeli high bench that "the court may strike down any law that it feels conflicts with basic Israeli laws. Israel's basic laws amount to a formal constitution that any law violating them should be overturned."

In other words, unlike our judicial activists who attempt to rewrite the real Constitution by interpreting it into meaninglessness, Barak 'wrote' Israel's imaginary constitution himself so that he could determine which Knesset legislation conflicted with it. As we lawyers say, he "deemed" certain Israeli principles to be a basic law tantamount to a Constitution giving the Israeli Supreme Court supremacy over the legislature and executives simply by virtue of Barak's sole and unique knowledge of a constitution that doesn't actually exist. Now that's judicial activism.

Says Barak: "The law regulates relationships between people and proscribes patterns of behavior (guess there's no Bill of Rights in the imaginary constitution). It reflects the values of society (by which he means his own views and those of his fellow social engineers). The role of judge is to understand the purpose of law in society and to help the law achieve its purpose (thereby rendering the people and their elected representatives superfluous)."

"The role of the judge is to ensure stability with change, change with stability, without allowing the legal system to degenerate or collapse into anarchy." In line with our judicial activists, Barak said in another speech that "I support the theory of 'purposivism' in which a judge interprets a constitution or law according to his determination of the modern meaning of the statute (as clarified by the non-existent constitution?)."

And here's the piece de resistance: "The judge is the mouth of the legislature in many cases, but not in all cases. When a judge has discretion (which is always, in Barak's mind), he does not merely declare what has been determined by the creator of the text. Alongside with declaration of the law, judges create new understanding of the law. Prior to the judgment there were, in hard cases, a number of possible solutions. After the judgment, the law is as has been handed down by the judgment."

Kagan's gushing support of this philosophy has caught the attention of several Senators, including a few on the Judiciary Committee. Senator Jeff Sessions asked a very salient question about Kagan: "Does she see her lifetime appointment to the court as an opportunity to promote ideas she desires and then let the law catch up?" I think the question was rhetorical, and the answer is surely "yes."

Robert Bork, formerly a federal judge and unsuccessful Supreme Court nominee believes that unlike his own defeat for things he never believed, Kagan should be disqualified for things she does believe. And her support for Barack's philosophy is one of those major disqualifying beliefs. His exact words were: "Kagan's admiration of Barak's views is disqualifying in and of itself."

For those of us who hoped Kagan would turn out at worst to be a moderate/liberal with some activist tendencies, this is a wake-up call. The judge she most admires makes Earl Warren look like a reactionary originalist. She doesn't believe in mere judicial review and some pretzeling of the law, she sees the role of a Supreme Court Justice as one in which the judge simply ignores the law, precedent and the Constitution in pursuit of doing what she personally considers to be "the right thing." She will use her considerable intelligence to sound traditionally judicial, but in fact she is a ravening wolf in sheep's robes. Unlike Sotomayor, Kagan is no dull-normal political hack. She is a true danger to our entire system of jurisprudence.

12 comments:

Tennessee Jed said...

Fascinating as always, Hawk. The terms judicial supremacist and revisionist seem to say it all when it comes to these people. Not oly that, there is a frightening tie in with the fact her judicial hero is named Barak.

LawHawkRFD said...

Tennessee: I know what you mean. I had to keep editing the post to spell it Barak instead of Barack.

AndrewPrice said...

I've been hearing about this for a couple days now and it's troubling.

But I don't know yet what she actually said about Barak. All I'm hearing is that she praised him, but that doesn't mean anything. What is key is if she's endorsed his view that judges are arbiters of society, and the laws are merely tools to get there. And if that's true, then she needs to be stopped because she doesn't understand what a constition is. But no one has pointed out yet if she has actually said anything like that.

If, on the other hand, her praise is merely college dean puffery or some sort of vague "someone I respect," then this isn't that big of a deal. There are many people we all respect without accepting their views. I respect Gandhi, but wouldn't agree with 90% of his views.

In any event, this is a red flag that the Republicans need to look at closely. Fortunately, the public is really opposed to her according to the polls. So if the Republicans do uncover another "living document" type in Kagan, then they have plenty of public support for stopping her.

As for Bork, I actually disagree with the reason he's been giving for opposing her. He said that he opposes her because she hasn't been a judge and therefore hasn't had time to develop a judicial temperment. I don't buy that. And the easiest counter example is this: Reagan would have made one hell of a Supreme Court justice, but he was never a judge. I think generally judges are better suited to be on the court, but I think intellect and principled understanding of the constitution are more important.

HamiltonsGhost said...

Lawhawk--With that hero, Kagan might just as well propose that we eliminate the Congress and the executive branch and just run the country on five votes out of nine on the Supreme Court. Neater, faster, and no need to bother with elections.

Tam said...

I have another question...what is the process (in a nutshell/layman's terms) ...I'm not a lawyer or a law student) for her nomination being confirmed? Is there a remote chance that we could get anyone less dangerous from Dear Leader? (p.s. Word verification for this post is Kings. I was thinking emperors or dictators would be more appropriate.)

LawHawkRFD said...

Andrew: The only way she could avoid serious vetting on this issue would be to convince the Committee that it was only law school dean excess. But her remarks were very pointed, and very expansive not just about how much she admires Barak, but why. Still, it was four years ago and at a ceremonial function, so if she can survive hard questioning on the issue at the hearings, she may put it behind her.

As for Bork, I agree with you in part, but not on this particular issue. I agree that not having been a judge is not an automatic disqualifier, and probably shouldn't be. On that, I think Bork went overboard. But he also addressed the specific issue of her admiration for Barak, and if she can't explain why she so admires his philosophy without outright admitting that she believes in judicial supremacy and the creation of law from the bench, then she ought to be rejected by the Senate.

One of Kagan's recorded and printed remarks about Barak is "he is the judge or justice in my lifetime whom I think best represents and has best advanced the values of democracy and human rights, of the rule of law and justice." If she can't explain that she was speaking generally and does not subscribe to his belief in judicial supremacy and judicial creation of law, then she ought not to become a Supreme Court Justice.

It is now up to the Judiciary Committee, and conservative Republicans particularly, to ask hard and serious questions about this issue. If she can't answer them properly, she should be sent back to Harvard.

LawHawkRFD said...

Tam: The process is not as arcane as you might think. Quite simply, the Senate Judiciary Committee investigates, questions, calls witnesses and interrogates the nominee. Then the Committee kicks it around and finally votes on whether to send a favorable recommendation to the full Senate. It is still the job of the full Senate to vote up or down on the recommendation.

We probably could get something better than Kagan from the Messiah, but I'm only saying that because it is only recently I began to hear things about her genuine legal philosophy. The Barak remarks particularly caught my attention. The question is did the president know all this, and when did he find it out? Chances are what we're hearing for the first time, he has known for a long time, given his personal friendship with Kagan. But that's what the committee hearings are for. If it comes out that Obama was trying to sneak a true believer in judicial supremacy past us as a moderate/liberal, his next appointee might have to be considerably less liberal.

LawHawkRFD said...

HamiltonsGhost: If it is entirely true, and Kagan can't explain how she differs from Barak, then it probably means that in her heart of hearts, she really does believe the democratic process is fatally flawed. If the Republicans do in-depth and serious questioning on the issue, we may get an honest answer on it. So far, all we can glean from her remarks is intelligent guesswork. Now it's in the hands of the investigators and the Committee members.

AndrewPrice said...

Lawhawk, That quote just doesn't say anything to me more than "here is my honored guest." It's definitely a red flag that needs to be explored carefully. But if that's all there is, then it doesn't bother me. In fact, I could see Reagan saying similarly grandiose things about someone like Gandhi, or even one of the Russians, or Tipp O'Neill. That wouldn't make me wonder if Reagan agreed with those views. And unless Bork has more on this issue than he's saying, then I think he's over-reacting -- which I certainly think is the case with criticism about her not being a judge, which he's been saying for weeks now.



Tam, The process is simple, like Lawhawk said. The Senate Judical Committee investigates her and then votes. It then passes to the full Senate, where she could be filibustered -- except in this case, there are already too many Republicans on record in favor of her.

In terms of getting someone better, I doubt it. Unless this issue uncovers some secret leanings that she's kept quiet for many years -- which would be a HUGE reason to stop her at all costs -- then her other views and actions have been largely centrist/consensus-maker. I don't share them and I would rather she was not on the court, but they don't appear to be far-left.

Moreover, the other people Obama is looking at are quite open about sharing a philosophy like that espoused by Barak -- in fact, that's become rather standard thinking on the left. So basically, he would be replacing her with people who share the same view that we would be using to disqualify her -- only they do so openly.

To me, the real question here is "has she been intentionally hiding leftist views for 20 years." If the answer to that is yes, then that shows a pathology that should disqualify her.

Joel Farnham said...

LawHawk,

I fear she might be able to get in because the Republican party, as it currently is constituted, doesn't have the stones to oppose her completely.

The hits against the Constitution keep coming faster and faster as November looms closer.

LawHawkRFD said...

Andrew: You're more of an optimist than I am. But I certainly can't say you're wrong. I just read her remarks as more than mere surface honorifics. I think she may very well believe it. But it's neither your job nor mine to pursue that. Let's hope our guys and gals on the Committee can get a full elucidation of what Kagan really meant.

LawHawkRFD said...

Joel: I've covered this subject before. If Andrew is right, and this was mere puffery on her part, then all things being equal, she ought to be confirmed, despite her being far too liberal for my tastes. It is not an act of cowardice for the opposition party to allow a nominee with whom they disagree to be confirmed. It is an act of cowardice only when that nominee is completely radical and dismissive of our entire form of government and yet they refuse to fight.

But as I've said before, the president is entitled to his nominees. So in this case, all-out Republican opposition to her confirmation could end up being based solely on whether or not she actually fully subscribes to Barak's judicial philosophy. Andrew thinks she probably doesn't, I think she probably does, but neither of us can be sure of that, and that's why it's the job of the Committee to find out.

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