After President Obama nominated Elena Kagan for the Supreme Court, he made a statement that implied she would follow in the footsteps of Justice Thurgood Marshall, the civil rights giant and first black Supreme Court justice. Kagan served as a law clerk for Marshall shortly after she graduated from Harvard Law School. Specifically, Obama said that Marshall's "understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people, has animated every step of Elena's career." Unfortunately, history does not support Obama's optimism that Kagan is a disciple of Marshall.
Kagan demonstrated while working as his law clerk that she disagreed with Marshall's jurisprudence. In 1988, the Supreme Court decided Kadrmas v. Dickinson Public Schools, a case about whether a school district could make a poor family pay for busing their child to the closest school, which was 16 miles away. The 5-justice majority held that the busing fee did not violate the Fourteenth Amendment's Equal Protection Clause. They rejected the proposition that education is a fundamental right which would subject the statute on which the school district relied to 'strict scrutiny.' The Court also declined to review the statute with 'heightened scrutiny' even though it had different effects on the wealthy and the poor. Instead, the majority found a 'rational basis' for the statute, that is, allocating limited governmental resources.
Marshall asked clerk Kagan to craft the first draft of a strong dissent in that case. But Kagan had a difficult time complying with Marshall's wishes and he returned several drafts to her for, in Kagan's words, "failing to express in a properly pungent tone - his understanding of the case." Ultimately, Marshall's dissent said, "The intent of our Fourteenth Amendment was to abolish caste legislation." He relied on Plyler v. Doe, in which the Court had upheld the right of the children of undocumented immigrants to receive free public education in the State of Texas. "As I have stated on prior occasions," Marshall wrote, "proper analysis of equal protection claims depends less on choosing the formal label under which the claim should be reviewed than upon identifying and carefully analyzing the real interests at stake." Kagan later complained that Marshall "allowed his personal experiences, and the knowledge of suffering and deprivation gained from those experiences to guide him."
Kagan evidently rejects these humanistic factors that guided Marshall's decision making and would follow a more traditional approach. This is a matter of concern for progressives, who worry about how the Supreme Court will deal with issues like a woman's right to choose, same sex marriage, "don't ask, don't tell," and the right of corporations to donate money to political campaigns without restraint. While Kagan has remained silent on many controversial issues, she has announced her belief that the Constitution provides no right to same-sex marriage. If the issue of marriage equality comes before the Court, Justice Kagan would almost certainly rule that denying same sex couples the right to marry does not violate equal protection.
There are other indications that should give progressives pause as well. During her solicitor general confirmation hearing, Kagan said, "The Constitution generally imposes limitations on government rather than establishes affirmative rights and thus has what might be thought of as a libertarian slant. I fully accept this traditional understanding..." But the Constitution is full of affirmative rights - the right to a jury trial, the right to counsel, the right to assemble and petition the government, etc. Does Kagan not understand that decisions made by the Supreme Court give life and meaning to these fundamental rights? Is she willing to interpret those provisions in a way that will preserve individual liberties?
While Kagan generally thinks the Constitution serves to limit governmental power, she nevertheless buys into the Republican theory that the Executive Branch should be enhanced. In one of her few law review articles, Kagan advocated expansive executive power consistent with a formulation from the Reagan administration. This is reminiscent of the 'unitary executive' theory that George W. Bush used to justify grabbing unbridled executive power in his 'war on terror.'
As solicitor general, Kagan asserted in a brief that the 'state secrets privilege' is grounded in the Constitution. The Obama White House, like the Bush administration, is asserting this privilege to prevent people who the CIA sent to other countries to be tortured and people challenging Bush's secret spying program from litigating their cases in court.
During her forthcoming confirmation hearing, senators should press Kagan to define her judicial philosophy. Several of the radical right-wingers on the Court define themselves as 'originalists,' claiming to interpret the Constitution consistent with the intent of the founding fathers.
I would like to hear Kagan say that her judicial philosophy is that human rights are more sacred than property interests. I would hope she would declare that her judicial philosophy favors the right to self-determination - of other countries to control their destinies, of women to control their bodies, and of all people to choose whom they wish to marry.
Kagan is likely to be circumspect about her views. She will frequently decline to answer, protesting that issues may come before the Court. We should be wary about how Justice Kagan will rule when they do.
Dunno Puller58, with your argument, anybody could become a good Supreme Court Justice.
She reduced him to asking truly stupid questions and coming close to smears.
If that's what a smart person can do to a Kagan supporter, she's a really bad choice.
But then, what has Obama done for the left that got him elected?
Bohemian became hippie. Anything goes became the rule, thanks partly to the use of dope by vets to get through the hell of a war they were drafted to fight. And one that saw it fought, not by the elites and their children, but by the powerless in society. And they brought the habit of the use of dope home with them.
An "anything goes society" has little or nothing to do with liberalism. I'm a 'liberal' and i'm still amazed and distresed by the tightness of the jeans over the *ss, the sight of female navels, the body piercings, the illigitimate birth rate, the treatment of minorities, the lack of foresight from the ruling powers that keeping people poor and without healthcare will lead to social instability, the lying, cheating, dishonesty, that marks our elected leaders. The greed of those with already more wealth than God.... and on and on.
Your comment is unworthy of a thinking rational person. You need to take a break and try not to box people in with your labels.......
I am so happy with Obama that I would like to repeal the 20th Amendment to the Constitution restricting the president to two terms, at least until a Republican is elected.
This was a good decision from Obama. The majority of academics are from well-off families. Why should he be held to such unrealistic selection standards? Kagan is a good choice for both sides.
Hmmmm.
Who knows. Maybe Ruth Bader Ginsberg has given the secret high sign and will retire as soon as Kagan gets on board.
boycot everything righty.
divest from the righty.
join / start a lefty institution.
the righty system will NEVER budge.
If Obama were willing to sacrifice the nation's interest for remainder of the Jewish vote, he would be supporting right-wing irredentists who want to expand Israeli settlements on the West Bank.
Obama nominated Kagan because she shares his views, values and methods. He in effect nominated himself. Those who like him, will like her; those who don't, won't
Politico agrees: "Kagan’s career mirrors that of the man who chose her for the high court — reinforcing the notion...that Obama is drawn to people who, well, remind Obama of Obama. Kagan, like the president, has a reputation as a progressive but not necessarily a clear record to match, which has aroused suspicion on the left. As dean of Harvard Law School, Kagan set about to reform, renovate and change — but ever so carefully, reaching out to the right and earning influential conservative admirers who will help her during the confirmation process."
The Washington Post said: "Both have cool temperaments, although her sharp wit is closer to the surface than his. Both thrive in tense and ego-ridden environments by synthesizing the arguments of different camps."
No one else has pointed out this incredibly incisive analysis.
1. Kagan is overly deferential to the executive branch. Her Harvard Law Review article, "Presidential Administration," maintains that a president may issue directives to all executive agencies unless Congress expressly enacts legislation curtailing that authority. Because such restraints would have to be enacted over the veto of the president, as a practical matter Kagan's position results in the same "imperial presidency" advocated by the authoritarian Neocon "unitarians."
2. Kagan is an upper middle class, Jewish, New York, Ivy League graduate who spent years among the unabashed elitists at the University of Chicago. She contributes no diversity of life experience or judicial philosophy to a court that will be 1/3 Jewish, 2/3 Roman Catholic, and almost entirely bourgeois Ivy League.
3. Kagan will not be an aggressive advocate for restoration of the civil rights and democratic processes that the Supreme Court has deleted phrase-by-phrase since the Burger Court and the executive has erased Amendment-by-Amendment since '9/11.'
Kagan cannot be criticized for being herself, a talented and privileged member of America's academic and economic elite.
However, Obama's two nominations of reliable guardians of the powerful clearly evidence his intent to pursue the Bush plan for plutocracy. Our constitutional democracy is being struck down article-by-article "under the color of law."