Jul 05

Kagan finessed the military issue

Culture, Law, Politics, Society No Comments »

By last week’s end, everyone knew Elena Kagan charmed most of our elected representatives involved in the Senate confirmation hearings and deftly maneuvered her way past any confrontations with her own assessment of those hearings as vapid and hollow, while she danced past any interrogations into her radical support for partial-birth abortion in the Clinton adminstration.

But she also finessed the issue of her handling of the US military in her tenure as Harvard law school dean, her putdown of military recruiters as a stand against the ‘Don’t Ask, Don’t Tell’ policy offered as compromise legislation by President Bill Clinton himself during his administration.

So Kagan told the Senate Judiciary Committee last week, “We were trying to do two things, to make sure military recruiters had full access to students and protect our anti-discrimination policy.”

That is, Kagan spent the week arguing that the policy was utterly meaningless.

“Military recruiters had access to Harvard students every single day I was dean,” she boasted.

And: “I respect and indeed I revere the military.”

Sen. Jeff Sessions, the ranking Republican on the committee, wasn’t buying it. He told Kagan, “You keep referring in your e-mails and all to the military policy. Isn’t it a fact that the policy was not the military policy, but a law passed by the Congress of the United States?” He complained that recruiters who had served in Iraq or Afghanistan “were appearing to recruit on your campus … and you were taking steps to treat them in a second-class way.”

And: “Why wouldn’t you complain to Congress and not to the dutiful men and women who put their lives on the line for America every day?”

The answer is simple. To complain to Congress would entail standing up to Democrats, including her old boss, President Bill Clinton.

So instead, Kagan and company targeted U.S. troops acting under orders. When doing so became inconvenient, that is, when it impeded her ascension to the Supreme Court, she argued that the military ban didn’t really do anything.

And in the end, it worked wonders….to illustrate and finally prove how right she was in calling the confirmation hearings vapid and hollow. It was every bit the charade Kagan said it was, all along.

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Jun 30

Kagan’s politics

Abortion, Law, Media, Politics, Society No Comments »

The Supreme Court nominee has trained well for the very confirmation hearing process she once sharply and publicly criticized. So now she’s being as politically correct as she needs to be, while denying she’ll be political at all on the court. What’s wrong with this picture?

Let’s review a thing or two…

Like the fact that she called the bluff of the hearing process herself.

U.S. Supreme Court nominee Elena Kagan’s review of the book “A Confirmation Mess” is creating a confirmation mess of its own.

Not really…most media are stifling it.

Kagan’s 1995 commentary on Stephen Carter’s book rendered a harsh judgment on how lawmakers question Supreme Court nominees…

Coming only a few years after the acrimonious confirmation hearings of Robert Bork which led to his rejection by the Senate, Kagan left no doubt what she thought about the Senate’s subsequent treatment of Supreme Court nominees.

Kagan wrote:

“If the recent hearings lacked acrimony, they also lacked seriousness and substance.”

“The practice of substantive inquiry has suffered a precipitous fall since the Bork hearings, so much so that today it hardly deserves the title ‘practice’ at all.”

“When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.”

“Senators today do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues. Senators have not done so since the hearings on the nomination of Judge Bork. They instead engage in a peculiar ritual dance, in which they propound their own views on constitutional law, but neither hope nor expect the nominee to respond in like manner.”

We could at least admire her honesty in such a candid blast. Now, she’s dancing as deftly as anyone. And even though it’s a cinch she’ll be confirmed in short order, the hearings are drawing out some disturbing facts that are finally making it on the public record. She claims the law is above politics?

Under questioning from Republicans on the Senate Judiciary Committee, Kagan calmly brushed off complaints that she was more interested in politics than legal precedent and promised her rulings would be based solely on the law.

“My politics would be, must be, have to be completely separate from my judging,” Kagan said on the second day of her confirmation hearing. “The question is always what the law says.”

Oh, really? Several versions of this story are appearing now that documents have emerged from Kagan’s work in the Clinton administration.

In 2003, the ban on partial-birth abortion was signed by President Bush—and promptly challenged in court, leading to the 2007 Supreme Court decision upholding its constitutionality, Gonzales v. Carhart.

Along the way to the Gonzales v. Carhart decision, the District Court Judge Richard Kopf ruled the ban unconstitutional, relying heavily on a report that the American College of Obstetricians and Gynecologists (ACOG) prepared during the Clinton administration.

And he relied on it particularly, he said, because it was produced without influence from the contending parties on abortion—proving its scientific integrity: “Before and during the task force meeting neither ACOG nor the task force members conversed with other individuals or organizations, including congressmen and doctors who provided congressional testimony, concerning the topics [the report] addressed.”

Turns out that isn’t true, even though the report said this was. In a blockbuster article in National Review, Shannen Coffin discloses the evidence he found in Clinton administration documents—a topic made timely by the hearings on Elena Kagan’s nomination to the Supreme Court.

And the evidence, Coffin claims, is that Kagan, from her post in the Clinton White House, wrote the central passages of the ostensibly neutral ACOG report and had them inserted in the text—which reveals, he says, Kagan’s “willingness to manipulate medical science to fit the Democratic party’s political agenda on the hot-button issue of abortion.”

So when she says that

…she would leave behind, once on the court, the advocacy she engaged in during the Clinton administration and now as the government’s top lawyer at the Supreme Court.

…let’s keep this for posterity, and continue to hope for truth and justice.

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Jun 28

Supreme Court’s ‘Big Monday’

Law, Media, Politics, Society 3 Comments »

For Court watchers, this was expected to be a big day.

As it wrapped up its session for summer break and released its final decisions, the Court made news early on, especially with its ruling on handguns.

The Supreme Court reversed a ruling upholding Chicago’s ban today and extended the reach of the 2nd Amendment as a nationwide protection against laws that infringe the “right to keep and bear arms.”

The 5-4 decision appears to void the 1982 ordinance, one of the nation’s strictest that barred city residents from having handguns for their own use, even at home.

More directly said…

The Supreme Court held Monday that Americans have the right to own a gun for self-defense anywhere they live…

The court was split along familiar ideological lines, with five conservative-moderate justices in favor of gun rights and four liberals opposed. Chief Justice Roberts voted with the majority.

This is interesting, seeing the AP use this language for a change (from usual big media terminology). Five ‘conservataive-moderate’ justices are just barely – but still decisively - tipping the balance in court decisions these days, with four liberal justices predictably coming down on the ideological left nearly every time.

Which they did on Monday’s “anti-bias”ruling.

The Supreme Court ruled today, 5-to-4, that public colleges and universities may require religious organizations seeking recognition or funds as campus groups to comply with anti-bias rules.

The ruling came in a lawsuit by the Christian Legal Society, which challenged the anti-bias rules of the Hastings College of Law of the University of California. The Hastings policy bars discrimination based on sexual orientation and the Christian Legal Society bars gay people from becoming members. Hastings has argued – with backing from many in public higher education – that state universities have an obligation to adhere to strict anti-bias rules. But the Christian Legal Society – with backing from many religious groups – has argued that forcing it to comply with anti-bias rules amounts to infringing on its First Amendment right to freedom of religion.

And that was ensured by the high court ruling.

The opinion explicitly rejects the argument of the Christian Legal Society that a public university has no business limiting its ability to be recognized and to apply its own rules to membership.

Which means a Christian group or any other identity group cannot expect members to believe in the validity or merit of their core mission statement or purpose or identity. Which prompted this…

A dissent, by Justice Samuel Alito, blasted the decision, saying that it set a principle of “no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.”

And just after these decisions came down, the Senate opened its confirmation hearings on the nomination of Elena Kagan to the high court. In his opening statement, Judiciary Chairman Patrick Leahy said ‘judges should not be politicians.’

But the lines are blurring…

In that statement, Leahy blasted the Supreme Court for certain rulings he found personally and politically offensive.

It is essential that judicial nominees understand that, as judges, they are not members of an administration. The courts are not subsidiaries of any political party or interest group, and our judges should not be partisans. That is why the Supreme Court’s intervention in the 2000 presidential election in Bush v. Gore was so jarring and wrong. That is why the Supreme Court’s recent decision in Citizens United, in which five conservative Justices rejected the Court’s own precedent, the bipartisan law enacted by Congress, and 100 years of legal developments in order to open the door for massive corporate spending on elections, was such a jolt to the system.

Everthing is politics. This is going to be an interesting prelude to the mid-term elections.

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Jun 27

Kagan’s confirmation hearings

Law, Media, Politics, Society No Comments »

Add this to the spectator sports going on right now in exciting arenas….World Cup. Wimbledon. Prelude to the Tour de France. Buildup to the MLB All-Star Break. US Open to the British Open.

And now, finally, the Senate confirmation hearings for Supreme Court nominee Elena Kagan begin. Okay, most people don’t care. But we journalists must, and must understand the players and the stakes.

And that’s the key point of interest here, given that Kagan’s confirmation is a certainty.

For Congress, it’s an election year, and the hearing provides Democrats and Republicans a platform to make their respective campaign arguments.

But what’s more important is that they make their respective cases before the American people about their view of the Constitution and its interpretation. Asking the right questions is critical. And it’s not ‘will the Republicans resort to the filibuster?’

A better question would have been, “Would it be politically smart for Republicans to use the confirmation process for Elena Kagan to highlight differences between the parties on the proper role of the Supreme Court?”  I’d submit that the Sotomayor confirmation process demonstrates that the right answer to that question is a resounding “yes.”

Because the mid-term elections are right around the corner.

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May 11

Until Kagan is confirmed

Law, Politics, Society No Comments »

Senators will soon be involved in the confirmation hearings for Elena Kagan, President Obama’s nominee to replace Justice John Paul Stevens on the Supreme Court. It’s a lifetime appointment, and big media aren’t giving the nominee much scrutiny. They’re  mostly spinning White House talking points in a montage of nearly identical sound bites, which over and over tell us about her ‘great mind’ and acceptability to a broad range of people.

Her confirmation is a certainty. So while the hearing process is still open, here’s some advice to senators who aren’t prepared to rubber stamp the nomination: ask questions. The nominee, herself, once advocated for a thorough examination of judges.

In a 1995 article for the University of Chicago Law Review, Kagan argued for probing, detailed inquiry during Senate confirmation hearings for federal court nominees, writing: “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.” She has written that she found Justice Ginsburg evasive during her own 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.”

So now what? Kagan is in Ginsburg’s place, being examined for her merit as a potential lifetime Supreme Court justice.

Would she answer such questions forthrightly? There are worrisome indicators that she would not.

She is on record for believing in the force of settled law, when it comes to a woman’s right to abortion. But then, she is very much against settled law on same-sex marriage and even the military’s policy with regard to homosexuality.

Kagan called the “Don’t Ask, Don’t Tell” policy “repugnant” and “immoral,” but repugnant to what? To her personal political sensibilities, or to the Constitution? Was that unanimous Supreme Court correct to rule against Kagan, or was it incorrect? She has referred to “Don’t Ask, Don’t Tell” as representing a “military policy,” but it was established through an act of Congress, and is therefore the American people’s policy. Should Joe Biden be banned from the Harvard campus for having voted for it? And what precisely is the constitutional weight of Elena Kagan’s repugnance or her sense of immorality?

Good questions. They should be asked….and answered.

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