Could You Repeat My Job Description?

At a forum conducted at the Newseum in the nation’s capital, Justice Elena Kagan confirmed that she doesn’t have a clue about what the difference is between being a lawyer/advocate and being a judge/neutral referee. Said the former Solicitor General: “Sometimes I think that the job doesn’t really change at all.” That’s like a baseball umpire saying his job is the same as his former job as coach of one of the teams.

In fact, Kagan explained why the job as Supreme Court Justice is even easier than being an advocate for a particular case or client: “As Solicitor General, my life was spent trying to persuade nine people and now it’s just trying to persuade eight people.” This probably explains why she sees no problem with having been an active partisan participant in the early Obamacare court cases, and then refusing to recuse herself when the cases came before the Supreme Court on which she now sits.

She wouldn’t have to do much convincing of three of her fellow Newseum panelists. They included Red Sonia Sotomayor (a wise Latina) and Ruth Bader Ginsburg (former ACLU attorney and extreme critic of the out-of-date Constitution). The third was the guest of honor—former Justice Sandra Day O’Connor. The occasion was the celebration of the thirtieth anniversary of O’Connor’s appointment to the Supreme Court, making her the first woman to sit on the court.

O’Connor was appointed by President Ronald Reagan, but this was before the Republican war one women. Just as President Dwight Eisenhower once said that appointing Earl Warren to the Supreme Court was his biggest mistake in office, President Reagan proved that even great presidents make mistakes. O’Connor voted in favor of radically altering the constitutional principle of the government taking property for public use by converting it to taking of property for a public purpose. That isn’t a minor difference in wording, but a complete perversion of the clear words of the Constitution.

O’Connor actually wrote an opinion in an affirmative action case which stated that she “didn’t know if the law was constitutional or not.” Guess she didn’t quite comprehend her job description either. If a Supreme Court Justice can’t articulate her understanding of the law and the Constitution, who can? O’Connor went all touch-feely in an opinion overturning a state sodomy statute by saying that everyone “should be free to determine his or her place in the cosmos.” Yes, Madam Justice, but what about our place in America and the role of the Constitution’s Tenth Amendment?

Kagan’s deep involvement as Solicitor General in the politics and legal maneuvering surrounding the early phases of state challenges to Obamacare is well documented. E-mails to her subordinates about how to litigate the Obamacare cases abound. In one case, her e-mail after a dismissal of one of the challenges was “we won.” Considerable testimony before the Senate Judiciary Committee expanded on those e-mails and the use of Kagan’s considerable resources and staff to defend Obamacare. All of that is perfectly acceptable and even good work for a Solicitor General. But a fair, knowledgeable and ethical Supreme Court Justice would see the clear conflict of interest and incompatibility of office in hearing cases she was deeply involved in.

Perhaps this will explain her confusion. When asked at the forum if sitting on the Supreme Court bench is still challenging for her, Kagan replied: “Oh, every day is a challenge. But, you know, for me, I had never been a judge before, and just figuring out the mechanics of the job—you know, I have these four clerks, what do I do with them? What is the best process for drafting an opinion? When do I read the briefs? Do I read them the day before, the week before?”

My answer to that is “why bother reading them at all since you were instrumental in writing briefs which are merely being rehashed in the consolidated Obamacare cases pending before your high court?” Many great Supreme Court Justices had no prior judicial experience. Lack of judicial experience is certainly not a disqualifier for a seat on the high bench if all the other positive indicators are there.

I know a great many very fine trial attorneys who would be terrible judges simply because they can't shift gears from advocate to neutral referee. Likewise, I appeared before many excellent appellate court judges who had never set foot inside a trial court and had never sat on a bench previously. And sadly, I also appeared before several trial and appellate judges who never should have been on the bench in the first place, let alone elevated to a higher court. It's called "judicial temperament." But lack of ethics should be a disqualifier at every stage.

Kagan outright lied and obfuscated when she was asked by the Senate Judiciary Committee about her personal involvement in the early Obamacare cases as well as the drafting of the original legislation. Even first year law students are taught the very distinct differences between the role of the advocate and the role of the judge (unless they took their courses from Kagan when she was a law professor at the University of Chicago or Harvard Law). It’s simple. If you were actively involved in the cases at an earlier stage as an attorney/advocate, you must not be involved in hearing and determining those same cases when they come before you as a judge.

Kagan’s refusal to recuse herself on the Obamacare cases at the Supreme Court is doubly-damnable, since she knows full well that there is no higher court to reverse her decision. That said, it is a rather routine lapse of ethics for a former member of the most corrupt administration in recent memory.