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included Red Sonia Sotomayor (a wise Latina) and Ruth Bader Ginsburg (former ACLU attorney and extreme critic of the out-of-date Constitution).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.
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Kagan Sets Up The Sucker Punch

U.S. Supreme Court Justice Elena Kagan has recused herself from the upcoming appeal of the State of Arizona challenging the ruling of the Ninth Circuit Court of Appeals which struck down the major enforcement provisions of Arizona's tough immigration enforcement law. She has done the right and ethical thing.

Simply put, Arizona's law included among other things a provision that during the course of a lawful stop or arrest, the police officer could inquire into the individual's immigration status if he had a reasonable suspicion that the person was in the country illegally. The police could then hold the suspect pending determination of his immigration status. If the person turned out to be in the United States illegally, the Arizona authorities would then turn the suspect over to the federal immigration authorities. The Obama administration successfully took Arizona to court, claiming that this was unconstitutional interference with the federal government's sole authority over immigration.

Arizona argued unsuccessfully that it had a compelling state interest in protecting its lawful citizens, and that the new law merely provided a means by which the federal authorities could be made aware of an illegal immigrant by use of ordinary and established state and local police procedures. The law did seem to grant power to the state to establish its own rules on immigration, and did provide for certain non-investigatory detention beyond the initial inquiry into the person's immigration status. The law did not allow or require the state to take any further action against the detainee such as deporting him from the United States, but there were some criminal sanctions for being present in Arizona illegally. Arizona argued that its law merely reported illegal immigration, while the Obama administration argued that it regulated immigration, a solely federal prerogative.

The law does make it a crime for an undocumented worker to be present in the state. And the law makes it a crime to fail to register with the federal government or attempt to take work or hold a job without government authorization. Unlike the "reasonable suspicion" provision, these provisions do seem to skate very close to the edge of federal supremacy. In any event, all the provisions mentioned were stricken by the federal judge, and his ruling was upheld by the Ninth Circuit Court of Appeals. It will be up to the Supreme Court to sort these provisions out.

A federal judge and ultimately the Ninth Circuit Court of Appeals found against Arizona. Arizona appealed, and the US Supreme Court has now granted certiorari (agreed to hear the case). Justice Kagan immediately recused herself and made a public statement as to why she was doing so. As a senior attorney at the Justice Department (Solicitor General), she had played a major role in the early litigation against the Arizona law. Good for her. She did the right thing. Why she did the right thing may yet turn out not to be quite so honorable.

Caution: What follows is comprised largely of my opinions about anyone or anything having to do with the Obama administration, combined with a healthy dollop of paranoia and suspicion. I'm not stating anything except the jurisdictional matters as fact, and if this turns out to be a debate over Kagan's intentions versus my wariness, that would be a good thing.

I'm sure that every one of you is sophisticated enough to know that the state challenges to Obamacare will be wending their way to the Supreme Court. Different appellate districts have made diametrically opposite decisions, and it's up to the Supreme Court to resolve them. Mounting evidence shows that Justice Kagan was deeply involved in the preparation and final versions of Obamacare while she was Obama's Solicitor General. In fact, within just a few days before the passage of Obamacare, Kagan wrote to the Justice Department's Office of Legal Counsel that a lawsuit was being prepared to block the House from "deeming" the measure passed by a quirky procedural rule if it didn't get enough votes. She not only alerted them, but made suggestions as to how to defend against the lawsuit.

She even went so far as to alert the Office of Legal Counsel of all the arguments which were being prepared against the procedural trick (by a former Tenth Circuit US Appeals Court judge who is now Director of the Constitutional Law Center at Stanford University). During her confirmation proceedings, Kagan was asked for a written response to the following question posed by the Republicans on the Judiciary Committee:

"Have you ever been asked about your opinion or offered any view or comments on the underlying or constitutional issues related to any proposed health care legislation, including, but not limited to Pub. L No. 111-148 PPACA (the Patient Protection and Affordable Care Act) or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?" Kagan answered "no."

Kagan's early opinions of the efficacy of socialized medicine offered as a professor of law at Harvard (pictured) would not automatically require her to recuse herself from considering the Obamacare cases at the Supreme Court. Every professor of law (except possibly Barack Obama) has legal opinions. They'd be pretty dumb if they didn't. Most prominent law professors have written law review articles (again, except Barack Obama, editor of the Harvard Law Review). Those articles frequently go against current prevailing law. But those opinions are largely political abstract law in nature until they start coming down from the bench. So her early legal career was important to the process, but not necessarily to her ultimate confirmation.

So where am I going with this? From everything I've seen and read, Kagan's involvement in Obamacare was at least as deep as her involvement in the Arizona statute controversy and litigation. Her self-recusal from the Arizona case leads me to think that doing the right thing in that case was a red herring, designed to draw attention away from Kagan's personal views and actual involvement in the preparation of the Obamacare legislation.

She, her liberal Democratic friends and their errand boys in the mainstream media can now point out how upright, honest and ethical she is about not hearing cases in which she has been personally and professionally involved. When she refuses to recuse herself from the Obamacare decision, as I expect she will, they can all say "why look, she recused herself in the Arizona case, so if she doesn't recuse herself here, it's because her hands are clean and she is justified in hearing the matter."

Along with her "recusal credentials" she is likely to claim that if she has to recuse herself, the same should be required of Justice Clarence Thomas. Well, hooey. Thomas had no personal or professional involvement in passing or litigating Obamacare. His wife is an ardent anti-socialized medicine advocate. So what? She's not sitting on the bench, he is. And unlike Obama, Thomas does not allow his wife to make his decisions for him. Double red herring.

Maybe I'm just getting old and cynical. But I suspect Kagan's self-recusal in the Arizona case is even more cynical. Sorry, folks, I just don't trust their phony good intentions. So, what do you think?
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Elena Kagan Is A "Racist"

As you know, whenever the left doesn’t like someone, they call them a racist. Yawn, whatever. And when that person also refuses to advocate adopting an Apartheid-like system of racial spoils and preferences in America? Then, I guess, they're double-racists? Well, get this, using the left's definition, it turns out that Elena Kagan is a racist. . . a dirty, dirty double-racist.

Ever since Martin Luther King said that he wished that we would judge people by the content of their character rather than the color of their skin, the left has been busy trying to make sure that the law judges people by their race without regard to their characters. Indeed, nothing obsesses the left more than separating people by race. And nothing angers them more than character tests.

But in the mid-1990s, a group of “New Democrats” appeared who felt that there was no way this country would ever move beyond race so long as we continued to give out legal protections, benefits, school seats, jobs, Congressional seats, and even government funding on the basis of race. Yeah, they were crazy like that. In fact, these people, who would have been considered dirty racists if they had been on the right, somehow managed to infiltrate the highest levels of the Clinton administration -- much to the chagrin of the old-line Apartheidists. . . er, civil rights types.

What this group argued was that it was counterproductive and harmful to the country to keep separating people by race and ensconcing race-based legal preferences into the law. Instead, they advocated using broad-based, color-blind assistance to help poor people, regardless of color, and limiting affirmative action to narrowly-tailored circumstances to remedy actual past discrimination. That’s almost the conservative view, if you drop the affirmative action crap.

So what does this have to do with Kagan? She was smack dab in the middle of this group of modern New Democrat bigots. Oh the humanity! Yep. And this isn’t sitting well with the race hustlers. Indeed, they have begun an angry “muttering” campaign against her, pointing our several damning facts:

1. She never did the kind of “civil rights” work that other Democrats do.

2. Not one single black person became a tenured or tenured-track professor at Harvard Law School while Elena “Bull Connor” Kagan guarded the doors as Dean.

3. Recently released memos from the Clinton Presidential Library and Dirty Book Store show that she “clashed with and sometimes mocked” Clinton’s advisers who were involved with Clinton’s initiative on race. As if these people know what true mocking is. One little whiner, Chris Edley, complained that Kagan ignored his efforts to contact her by phone, email and even “hallway greeting.” It got so bad that the poor dear threatened to resign and go work at UC Berkeley as the dean of their law school. Oh no! Hey Chris, if you read this (if you can read), give me a call and I’ll show you real mocking.

4. In November 1997, she co-authored a memo that said: “We believe that the central focus of the race initiative should be a race-neutral opportunity agenda that reflects these common values and aspirations.”

Well, I’ve never heard such unbelievably vile thoughts. And she wasn’t even done there: “The best hope for improving race relations and reducing racial disparities over the long term is a set of policies that expand opportunities across race lines and, in doing so, force the recognition of shared interests.”

The monster! This woman is worse than Hitler! What have you done Barack Obama? Have you no shame?! This woman clearly wants to set back the clock to the age of slavery.

In all seriousness, this is great news. If she follows through on these views, and there is no reason to think she won’t -- unless you want to believe that she’s gone through the last twenty years hiding her views in the hopes of one day sitting on the Court -- then she will push the court irretrievably to the right on race. And even if she doesn’t, we still don’t lose anything because we’re replacing one of the Court’s most liberal members. So the worst we can do is break even. But the left, the left has a lot to lose here. They could find themselves going from 4-5 to 3-6, from which they will probably not recover in our lifetimes.

Maybe there is something I like about Barack Obama after all?

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Obama Nominates Elena Kagan, Upsets The Left

This morning, Obama picked Elena Kagan for the Supreme Court. Kagan is a woman who looks like Mike Myers from Austin Powers and has an even smaller paper trail than stealth candidate David Souter. She is a self-avowed liberal, but the left isn’t happy. And, truthfully, they have reason to be concerned. Indeed, Obama seems to have picked her because she's likely to be acceptable to the Republicans.

Let’s start with the obvious. Kagan checks off a lot of boxes. She’s female and Jewish, two of Obama’s biggest supporting groups. She’s rumored to be a lesbian, another Obama supporting group, though they prefer their candidates to be open. She’s also young, at 50, so she’s likely to stay on the court a long time.

So what does she stand for? Nobody knows, and that’s the problem.

She was a law clerk for Thurgood Marshall, one of the biggest dipsh*ts to ever sit on the Supreme Court. That’s bad. But she taught with Obama at the University of Chicago Law School, a supposedly conservative school. Her biggest achievement was becoming dean of the Harvard Law School (2003-2009), where she grabbed a little infamy for refusing to let military recruiters operate on campus because of the military’s “don’t ask, don’t tell” policy, a policy put in place while she worked at the Clinton White House. She called the policy a “moral outrage.”

Sounds like a good leftist, right? Not so fast. When she was at Harvard, she garnered serious praise from conservatives for being quite fair to conservative groups at Harvard and by recruiting numerous conservatives for the Harvard faculty. This bothers the left a lot. What’s more, they are furious with her for hiring mostly white males (25 out of 32) during her tenure.

They are also upset with her actions vis-à-vis terror. At one point, she signed a letter opposing legislation proposed by Sen. Lindsey Graham (RINO-SC) to strip courts of the power to review detention practices at Guantanamo Bay, complaining that this law could be used to strip Americans of their legal rights and claiming that this is inconsistent with our government’s current and former criticism of dictatorships. This sounds liberal (though it's also consistent with libertarian thinking). But then, when she became Solicitor General, she took a different stance on this and has been roundly criticized by the left for advocating “Bush-lite.”

Beyond that, she has a scant paper trail, which is also upsetting the left a lot. She hasn’t taken any public stances on the nation’s more controversial issues over the past 20 years, despite the fact that few leftists have been able to shut their yaps on any issue during that time period.

Moreover, she has no legal record. In fact, 31 Republican Senators voted against her confirmation as Solicitor General because, not only has she never argued before the Supreme Court, she’s never argued before ANY COURT. (Her nomination to the D.C. Circuit Court of Appeals was shot down for that very reason.)

So no one knows what she stands for, which has actually generated a whisper campaign against her on the left. And you can see why they would be concerned. She may turn out to be everything the left wants, but it’s a gamble. And that’s making them furious since there are confirmed leftist candidates out there that could have been nominated instead.

Frankly, I think they have reason to worry. This is entirely speculation on my part, but I suspect the left will regret replacing Stevens with her. Stevens was a far-left lunatic. Kagan has shown through her time at Harvard and her adoption of “Bush-lite” that she’s much more reasonable and most likely center-left. She doesn’t seem to hate the right, like the fringe left does. She seems open to reason, and is not blind to ideology. And she seems to respect rule of law. Moreover, the fact that she would hire conservatives and wouldn’t whine constantly about the “evil Bush administration” makes me think that, at the least, she’s a liberal rather than a leftist, and she may even be a moderate liberal at that. If that’s the case, then Obama will have actually moved the court considerably to the right with this choice.

Still, who the heck knows?

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