The Supreme Court- Why It Doesn't Matter What WE Think of Kagan

Before we begin, I'd like to point something out to all: "It is the mark of an educated mind to be able to entertain a thought without accepting it." -Aristotle. I bring this up because there are points in this blog that I may say I understand why someone would think one way or another. Just because I understand does not mean I agree. This goes for anyone else as well, and it works both ways. Anyone can understand another viewpoint without agreeing, and many can agree with a viewpoint without understanding... like the sheeple. Also, I try to make it a point to see both sides of an issue before passing judgement. Just because the RNC says "this is good" doesn't mean I go out and shout it from the rooftops. I have my own ideals, my own opinions. Not everything I believe is espoused by the Republican Party. Not everything the Democrats say is automatically disregarded as propaganda and BS. Just because Obama has nominated Kagan does not mean I'm going to automatically think of her as unqualified and a liberal plant for the Dems.

In this country, we are governed by two types of people: the elected and the appointed. The average citizen elects some, like Senators, Representatives, and to a point, the President. Those who are elected, mostly the President, makes appointments. Voting for a President is never just about the person he/she is, it's also about who he/she is going to appoint to those positions of power.

U.S. Constitution Article II Section 2, Paragraph 2:
"He [the President] shall have Power... and by and with the Advice and Consent of the Senate, shall appoint... Judges of the supreme Court...."

U.S. Constitution Article VI Paragraph 3:
"...judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution..."

The purpose of the Supreme Court is mainly to interpret the Constitution. When a judge is said to be liberal or conservative, it is their legal outlook that is being described, not their political leanings. Their job, first and foremost is to ensure everything that takes place is Constitutional.

A justice is seated for life, or until they resign or are impeached. In a way, this can prevent wild swings of governmental control with the shorter-term executive and legislative branches able to swing from one side of the spectrum to the other every four or twelve years. While one president's administration may differ wildly from the next, the Supreme Court is fairly stable in its makeup. Right now, the average age of the justices is nearly 69 years.

Currently, Chief Justice Roberts and Justices Alito, Thomas and Scalia are the Conservative Wing; Justices Stevens, Ginsburg, and Breyer are the Liberals, and Justice Kennedy is more of a swing vote, typically conservative, but occasionally voting with the liberals. Sotomayor, the most junior Justice, nominated by President Obama and seated just last August seems to be voting liberally along the lines of Souter, who she replaced.

Kagan is being nominated to replace Justice Stevens who has been in the Supreme Court since Ford nominated him back in 1975. He was born in 1920. He is often considered the most liberal of all the Justices.

Now for the question- who is Elena Kagan? How will she vote on the issues at hand?

Kagan is currently the Solicitor General... which basically means she's the lawyer for the United States when in court... the Supreme Court. She has been the Solicitor General since March 2009.

Before this, she was the Charles Hamilton Houston Professor of Law and the 11th Dean of Harvard Law. At Harvard, she taught administrative law, constitutional law, civil procedure, and seminars on issues involving the separation of powers.

She served as Associate Counsel to the President in the White House from 1995-96 and Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council from 1997-99. What a mouthful.

She started teaching at the University of Chicago Law School in 1991 where she was a colleague of Obama. She worked in the law firm of Williams & Connolly from 1989-91. She clerked for Justice Thurgood Marshall of the Supreme Court, where she was apparently given the nickname 'Shorty'. She was a clerk for Judge Abner Mikva of the US Court of Appeals for the D.C. Circuit from 1986-87.

She received her bachelor's from Princeton, an M. Phil. from Worcester College, Oxford, and then attended Harvard Law where she was supervising editor of the Harvard Law Review.

Experience

One big omission from this list is that she has never been a judge. The last Supreme Court Justice who was never previously a judge was Chief Justice William Rehnquist in 1972. Senior White House Advisor David Axelrod says, "I don't think the president has one bit of hesitation" that she is lacking judicially. Calling her "one of the foremost legal scholars in the country," and "supremely qualified."

I suppose the question here is: Does law require experience? More to the point, does being on that side of law require experience? She has some experience arguing a case, but do you need experience listening to a case to know what is right and what is wrong? She taught constitutional law, which is what the Supreme Court upholds. She is the Solicitor General, so is familiar with the proceedings in the Court itself. She just doesn't have experience behind the bench.

Moderate in disguise?

Granted, this comes from the big O himself, but Obama points out that when Harvard had "gotten a little one-sided in its viewpoint," Kagan recruited prominent conservative scholars and attempted to spur healthy debate on campus. This is, of course, supposed to point out that she doesn't turn a deaf ear to differing viewpoints. As someone recently pointed out to me though, right of left doesn't always mean center... it could just mean left. When asked by a FOX reporter if she was "center-left," neither Axelrod nor Bauer responded.

It appears as though Kagan is generally a liberal when it comes to social issues, but she takes these stands cautiously. Either she honestly looks at both sides of the issue and takes actions to satisfy as many as she can while still within her own beliefs (as moderate as a liberal can get, in other words) or the woman who "loves poker" just has an awesome poker face. Either way, it appears that most liberals are less than thrilled about her nomination, preferring someone with a farther left outlook.

Another woman

Most will remember that the first Justice nominated by Obama was Justice Sotomayor- a Latina woman. Now another woman, this time of Jewish descent. She will be only the fourth female justice seated. She was the first female dean of Harvard Law. Is this because she was best suited for the job? Axelrod says Kagan's gender and relatively young age were important factors "but not determinative." When are the Dems going to realize that no matter which side of the line you are on, if you are drawing one based on sex, race, or creed, it's still discrimination?? Her gender should never be a factor, let alone an important one. Only when we stop looking at things like race and gender will we be past discrimination- not by giving more support or more praise to the minority.

The vetting process

In 1995, before the Senate really got into questioning nominees, Kagan wrote a piece for the University of Chicago Law Review saying that the confirmation process was "an embarrassment" and said that Senators don't do any digging to get the nominee to reveal what type of Justice she would make by disclosing her views on important legal issues. Both critics and supporters want to know what she thinks about the process now, since she will likely be questioned more than any to date, simply because she has so small a public voice in published documents.

Princeton Thesis

Her thesis focused on the demise of the Socialist movement. She referred to it as "...a sad but also chastening one for those who, more than half a century after socialism's decline, still wish to change America." Many conservatives are taking this simple quote to mean that she is socialist. Her supporters say that her paper examined Socialism, but did not condone it. From such a small quote, it is really impossible to say which is right. The professor who oversaw the research for this piece called Kagan "the furthest thing from a socialist- period." Without more of the piece to read, I cannot, at this point, make a comment as to which side I would be on.

Don't Ask Don't Tell

Many of the reports I've read regarding this incident seem to be left vague on purpose. They say she's against the policy of discrimination in the military which is why she supported the attempt to remove military recruiters from campus. This way, the liberals will be on her side: "Kagan believes in equality for gays." From this light reporting, you have groups like Move America Forward, a self described grassroots military support group, calling her "anti-military" though she has been careful to note her respect and admiration for the work the military does. One thing that seems to be left out of many of these reports was that the military was still able to recruit through a student group called the Harvard Law School Veterans Association. That ability was never removed. It was only use of an on-campus office that was suspended during the bans.

There is a law out there, generally referred to as the Solomon Amendment, that says if a school refuses to allow military recruiters or an ROTC program on campus, school will be denied federal funding. It was changed to the entire college specifically in 2001 because of law schools. For instance- Harvard Law does not rely heavily on federal funding, so they had little reason to allow military recruiters in the first place. However, Harvard University is paid over $400 million a year in funding, including research grants.

In 2005, Kagan and 39 other professors signed a brief, urging reconsideration for law schools. Rather than calling the Solomon Amendment unconstitutional, as many others tried, they simply said that they treat the military the same as any other employer unwilling to sign the non-discrimination waiver. The subject at hand was for their 'Job Fair' of sorts, and any employer wishing to recruit had to sign a statement announcing that they do not discriminate based on sex, race, or sexual orientation. Because of the military's Don't Ask, Don't Tell policy, the recruiters were unable to sign the statement. This is the basis for their 'ban'. Prior to the change to the law, when only Harvard Law would be affected, the military had been banned from campus for 25 years. It was only when it would affect the entire college that the ban was lifted.

When the Solomon Amendment was ruled unconstitutional, as Dean, she reinstated the ban. When the Supreme Court took the case under the Bush administration, she removed the ban again. All these times, she followed the current law first, and her school's belief system second.

In 2009, during her confirmation as Solicitor General, however, she wrote that there is no federal Constitutional right to same-sex marriage, showing that when her personal beliefs go against what the current law says, she would follow the law. Justices are not supposed to make laws, or legislate from the bench, as many call it. They are simply keepers of the Constitution- to ensure current laws are followed as written, and as intended, not to try to bend them or find loopholes.

Some of her critics say that her attempt to change the law is the sticking point in their argument. The problem here is that nobody ever claimed the Constitution was perfect all the time. There is a mechanism of change written right into the text in the form of Amendments. A fight to change the law is not something that should be looked down upon. If anything, it should count in her favor that she fought for change, and when it was deemed that law was correct, she still followed it. A respect for law is, in my opinion, one of the most important traits an official should have. And yes, you can respect something while also trying to change it.

Other topics

Kagan has successfully skirted around controversy over issues like abortion, death penalty and gun control, but said she was fully prepared to argue that under prevailing law and the Constitution, that the death penalty is legal as is a woman's right to terminate a pregnancy. Again, this shows that no matter the belief of the person, she will follow current law in her rulings.

In 1997, as a White House adviser, she urged President Clinton to support a ban on late term abortion. She encouraged Clinton to support a compromise that would have banned all abortions of viable fetuses except when the health of the mother was at risk.

Other random topics

Obama mentions that by nominating a woman, it will be a "court that would be more inclusive, more representative, more reflective of us as a people than ever before." Apparently he means just when it pertains to sex. The majority of Americans are Protestant. The only Protestant judge is the one who Kagan will replace. Catholics represent 2/3 of the court, and while only 2% of Americans are Jewish, with Kagan's addition, the Court will be 33% Jewish. There are 3 first generation Americans on the bench currently- Scalia's father was Sicilian, Alito's parents were Italian, and Sotomayor's father was Puerto Rican. There is one Latina justice, one black justice, the rest all white. If he was truly looking to have the court be more representative of the real world, he wouldn't have looked for a white Jewish woman. Now, in no way am I saying she's not qualified because she's a white Jewish woman. What I am saying is that he is holding too tightly to the idea of forced diversity. Diversity is good, I agree... but not diversity for diversity's sake. It just seems like he tried to find someone who wasn't a white Protestant male... and eventually, with that kind of attitude, the white Protestant male will be absent from any appointed office, even though he is still the majority in this country... at least until the census shows the results.

Back to what I started with, you can understand without agreement. It seems she is able to. The question is, when it comes time to rule on a case, will she follow law or her beliefs? It seems that she can follow law even if she doesn't agree because she understands.

I'm sure there will be more to come as the Senators pick through all her writings and decisions, but for now, this is what I have found. The Senate vote will not take place until August, so we have until then to discover who she really is. For now, all I'll say is it could be a lot worse.

Edit: After reading her thesis, it appears that the woman IS actually a socialist. If I seemed to endorse her in this blog, I wish to make it known that I do not. Thanks!