Kagan Hearings Surpass World Cup For Most Boring TV Event

Via-Townhall

Ann Coulter

The two main points being made by Democrats in support of Elena Kagan's nomination to the Supreme Court merely serve to remind us that Democrats are inveterate liars.

First, it has been repeatedly observed how wonderful it is that Ms. Kagan is "someone who's an intellectual heavyweight who's going to give Roberts a run for the money" -- as Sen. Amy Klobuchar, D-Minn., put it.

Whew! Good thing the Democrats got that Hispanic nominee out of the way, so they could appoint somebody with intellectual heft! Hey! What happened to the "wise Latina"? At least now you know what liberals really think of you, Sonia.

Second, liberals are raving about Kagan's "skill at building a consensus ... reaching out and building coalitions" -- as Sen. Dick Durbin, D-Ill., said last week.

It's as if they're talking about a governing majority in the Senate. Next thing you know, liberals will be complaining about a "do nothing" Supreme Court.

On MSNBC's "Hardball" back in May, Sen. Klobuchar said: "We want to get some things done on this court."

Get some things done? Amy Klobuchar is not considered a lunatic, but this was a crazy, giveaway moment. (Durbin is not considered a lunatic, just a hack.)

The Supreme Court is not supposed to be "getting things done." Durbin's and Klobuchar's statements reveal a massive misunderstanding of the role of the court.

Congress, as the people's elected representatives, is supposed to "get things done." If they don't, that usually means the people don't want those things done. It's not the court's job to say: "Hey, Congress, you forgot to enact this! Don't worry, we'll take care of it."

But liberals see the Supreme Court as their backup legislature, giving them all the laws Democrats can't pass themselves because they'd be voted out of office if they did.

Can't get Americans to approve of abortion? Get the Supreme Court to do it! Can't get Americans to ban the death penalty? Get the Supreme Court to do it! Can't get Americans to release criminals? Get the Supreme Court to do it!

Usually Democrats denounce the idea that they want an activist judiciary as a vicious, right-wing lie. But now they're complaining that the court's not activist enough -- and they need Kagan up there to "get some things done"!

Despite the herculean efforts of liberals to redefine "judicial activism" as "overturning laws," the two acts are completely unrelated.

It would be like redefining "terrorist" to mean "airline passenger." Some airline passengers are terrorists and some aren't -- indeed, some battle the terrorists. The two have nothing to do with each other, although, sometimes, both notions come together and you get an airline passenger who's a terrorist -- and blows up the plane.

It makes as much sense to say, "Republicans say they're against 'judicial activism,' but conservative justices strike down laws more than liberals do!" as it does to say, "Republicans claim they're against terrorism, but they fly more than Democrats do!"

Different things.

As former Chief Justice William Rehnquist described the proper role of judicial review in a constitutional democracy, the courts have the last word "as to whether a law passed by the legislature conforms to the Constitution."

It would be every bit as "activist" for the Supreme Court to refuse to strike down a law that violated the Constitution -- e.g., Chicago's anti-gun laws or Congress' restriction of free speech via the campaign finance laws -- as it is for the court to strike down laws that do not violate the Constitution.

We know that laws restricting speech and the right to bear arms violate the Constitution because it says so. The very first two items in the Bill of Rights prohibit the government from infringing on -- I quote -- "the freedom of speech" and "the right of the people to keep and bear arms." You can look it up yourself.

If Congress passed a law banning books critical of the Supreme Court and the court refused to strike down that law, that would be "judicial activism."

Historically, judicial activists have preferred to strike down laws that are perfectly acceptable under the Constitution than to let unconstitutional laws stand. Constitutionally permissible laws include laws against abortion and laws providing for the death penalty.

We know that laws prohibiting abortion do not violate the Constitution because neither abortion, nor its synonyms, nor anything vaguely resembling abortion, is mentioned -- much less granted protected status -- by the Constitution.

And we know that laws providing for the death penalty are permitted by the Constitution because it goes on and on about capital crimes. The Fifth Amendment, for example, says:

-- "No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury";

-- "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb";

-- "nor be deprived of life, liberty, or property, without due process of law."

States are free to ban the death penalty on their own, but the Constitution requires only three things for the imposition of a death sentence: a grand jury indictment, no double jeopardy, and a hearing. The End. Love, the Founding Fathers.

And yet, the Supreme Court banned the death penalty -- even with those three safeguards -- as "unconstitutional" from 1972-1976.

Several justices -- including Kagan's mentor, Justice Thurgood Marshall -- continually voted to ban the death penalty, despite the fact that the Constitution clearly, repeatedly, unquestionably provides for capital punishment.

That's how liberals "get some things done." That's judicial activism.

Video-Kagan argueing before SOTUS

What is most disturbing about this is that 4 justices sided with her as well as many Americans who see corporations as a bigger threat to our freedoms than government destruction of our First Amendment Rights. A classic example of throwing out the baby with the bath water, but unfortunately; for progressives like Obama and Kagan they just want to boil the baby (free speech) in the bath water.

Video-Or: "where's the beef?"

Via-

More questions for nominee Elena Kagan

Via-WAPO

Pursuant to Elena Kagan's expressed enthusiasm for confirmation hearings that feature intellectual snap, crackle and pop, here are some questions the Senate Judiciary Committee can elate her by asking:

-- Regarding campaign finance "reforms": If allowing the political class to write laws regulating the quantity, content and timing of speech about the political class is the solution, what is the problem?

-- If the problem is corruption, do we not already have abundant laws proscribing that?

-- If the problem is the "appearance" of corruption, how do you square the First Amendment with Congress restricting speech to regulate how things "appear" to unspecified people?

-- Incumbent legislators are constantly tinkering with the rules regulating campaigns that could cost them their jobs. Does this present an appearance of corruption?

-- Some persons argue that our nation has a "living" Constitution; the court has spoken of "the evolving standards of decency that mark the progress of a maturing society." But Justice Antonin Scalia, speaking against "changeability" and stressing "the whole antievolutionary purpose of a constitution," says "its whole purpose is to prevent change -- to embed certain rights in such a manner that future generations cannot readily take them away. A society that adopts a bill of rights is skeptical that 'evolving standards of decency' always 'mark progress,' and that societies always 'mature,' as opposed to rot." Is he wrong?

-- The Ninth Amendment says: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." The 14th Amendment says no state may abridge "the privileges or immunities" of U.S. citizens. How should the court determine what are the "retained" rights and the "privileges or immunities"?

-- The 10th Amendment ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people") is, as former Delaware governor Pete du Pont has said, "to the Constitution what the Chicago Cubs are to the World Series: of only occasional appearance and little consequence." Were the authors of the Bill of Rights silly to include this amendment?

-- Should decisions of foreign courts, or laws enacted by foreign legislatures, have any bearing on U.S. courts' interpretations of the Constitution or federal laws (other than directly binding treaties)?

-- The Fifth Amendment says private property shall not be taken by government for public use without just compensation. But what about "regulatory takings"? To confer a supposed benefit on the public, government often restricts how persons can use their property, sometimes substantially reducing the property's value. But government offers no compensation because the property is not "taken." But when much of a property's value is taken away by government action, should owners be compensated?

-- In Bush v. Gore, which settled the 2000 election, seven justices ruled that Florida vote recounts that were being conducted in different jurisdictions under subjective and contradictory standards were incompatible with the Constitution's guarantee of "equal protection of the laws." Were they right?

-- In Bush v. Gore, five justices held that Article II of the Constitution gives state legislatures plenary power to set the rules for presidential elections. The Florida legislature fashioned election rules to produce presidential electors immune from challenge by Congress. But the legislature said that immunity depended on electors being chosen by a certain date, which could not be met if further recounts were to ensue. The court held that allowing more recounts would have contravened the intent of Florida's legislature. So the recounts were halted. Was the court's majority correct?

-- Justice Thurgood Marshall, for whom you clerked, said: "You do what you think is right and let the law catch up." Can you defend this approach to judging?

-- You have said: "There is no federal constitutional right to same-sex marriage." But that depends on what the meaning of "is" is. There was no constitutional right to abortion until the court discovered one 185 years after the Constitution was ratified, when the right was spotted lurking in emanations of penumbras of other rights. What is to prevent the court from similarly discovering a right to same-sex marriage?

-- Bonus question: In Roe v. Wade, the court held that the abortion right is different in each of the three trimesters of pregnancy. Is it odd that the meaning of the Constitution's text would be different if the number of months in the gestation of a human infant were a prime number?

EDITORIAL: The case against Kagan

By THE WASHINGTON TIMES

Solicitor General Elena Kagan is too political, too leftist, too inexperienced and too disrespectful towards existing law to be confirmed for the U.S. Supreme Court. As Ms. Kagan's nomination hearings begin on Monday, what we now know about her should disturb fair-minded Americans, and should embolden moderate senators of both parties to avoid rubber-stamping her for a lifetime appointment. The pressure should be most intense not on Republicans, but on Democrats who claim moderation and yet try to explain away Ms. Kagan's history of leftist proselytizing.

No amount of personal charm on Ms. Kagan's part should obscure her actual record. Here's what we know about this former dean of Harvard Law School:

We know she is remarkably lacking in courtroom experience. Until Ms. Kagan became solicitor general, she not only had never been a judge, but she also had not even argued a single appeals case in her entire career. Her few arguments as solicitor general have been undistinguished. In one, the justices had to remind her that she was to answer their questions, not ask them questions of her own.

We know she deliberately ignored the law while at Harvard, and unfairly besmirched our military in time of war. The facts are simple. A law known as the Solomon Amendment made it illegal to keep military recruiters off of college campuses. An appeals court ruled that the law should be overturned but immediately made its own ruling inapplicable until it could be reviewed by the Supreme Court. Then-Dean Kagan barred the recruiters from campus anyway, thus flouting the law. She called the military's "Don't Ask, Don't Tell" rule on homosexual practices "a moral injustice of the first order," even though she herself had served in the Clinton White House that developed the "Don't Ask, Don't Tell" rule in the first place. Then, when she supported a challenge to the Solomon Amendment, the Supreme Court ruled against her position 8-0 - an overwhelming rejection of her anti-military stance.

Somebody who openly flouts the law should not be one of the law's ultimate arbiters.

We know she cut corners in order to preserve partial-birth abortions. Vast majorities of the American public oppose partial-birth abortion, which involves crushing the skull of a partially born baby and which the late Sen. Daniel Patrick Moynihan characterized as, for all intents and purposes, open "infanticide." Yet when serving as a legal adviser to former President Bill Clinton, Ms. Kagan deliberately withheld from the president a finding by the American College of Obstetricians and Gynecologists that partial-birth abortion is virtually never "the least risky, let alone the 'necessary,' approach." As accurately summarized by the National Right to Life Committee, the result was this: "Ms. Kagan played a key role in keeping the brutal partial-birth abortion method legal for an additional decade."

We know she is willing to undercut First Amendment free speech for political purposes. Ms. Kagan argued before the Supreme Court that the law should be read to allow the government to prohibit the publication of political pamphlets. In a nation stirred to its own founding by political pamphlets such as "Common Sense" and "The Federalist Papers," this is an extremely disturbing position. Ms. Kagan also has written of the benefits of "redistribution of expression," and has written that speech rights are to be "dol[ed] out" as a "favor" from government rather than being pre-existing rights that government cannot take away. She has argued that government would be justified in "disfavoring [an] idea [to] 'unskew,' rather than skew, public discourse."

We know Ms. Kagan is hostile to gun rights. Curt Levey of the conservative Committee for Justice has closely and fully analyzed the record. His conclusion is worth quoting in full: "When it comes to firearms, Elena Kagan's liberal bias stands out again and again throughout the documents. The Second Amendment consistently plays second fiddle to gun control in Kagan's analysis across issues such as gun-show regulations, trigger-lock mandates, the Brady Bill, municipal lawsuits against gun manufacturers, the congressional ban on assault weapons, an executive order banning semiautomatic weapons, use of executive agencies to push gun safety, use of state and local police to conduct background checks, and even the fundamental question of whether individuals have any Second Amendment rights."

We know she believes foreign law is highly relevant to U.S. law. In a New Hampshire speech on Oct. 6, 2008, then-Dean Kagan referred to "a transnational perspective" as being "foundational" as "part of the core of legal thought and activity in this new century." To be clear, she said, "I think the solicitor general's office should offer reasonable foreign law arguments." While she was dean, Harvard Law added "International- Comparative Law" as a course requirement for graduation, but the school dropped the requirement for constitutional law.

We know she believes judges should automatically favor certain classes of people and impose their own values to reach desired outcomes. In short, judges should be super-legislators. We know she believes this because she has written as much. She wrote in 1993 that it is a "thing of glory" for the Supreme Court to see its primary mission as "show[ing] a special solicitude for the despised and disadvantaged." She has acclaimed as her greatest "judicial hero" the radical Israeli judge Aharon Barak, who openly bragged that his "judicial philosophy is enshrined in the recognition that his role is to create rights." Not enforce rights recognized by the people, but create those rights himself. That's dangerous, yet it echoes what Ms. Kagan herself wrote in her Oxford University thesis in 1983, namely that "as participants in public life, judges will have opinions, prejudices, values. Perhaps most important, judges will have goals. ... And because this is so, judges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends. Such activity is not necessarily wrong or invalid."

And we know lots of other things about Ms. Kagan. She believes states should be forced to recognize purported marriages performed in other states (presumably such as homosexual "marriage") even if their own policies forbid it. She used her job as legal analyst to make political judgments about how various legal stances would benefit Democrats over Republicans. She supported a policy to allow human embryos to be cloned and killed. She said she "loved" the vicious character assault on Judge Robert Bork when he was nominated for the Supreme Court in 1987. And she once wrote that she hoped for "a new, revitalized, perhaps more leftist left."

If those are Elena Kagan's goals, let her run for elective office. But keep her far away from the nation's highest court, where justices are supposed to serve the law, not create it.

What a Sack of Sacrosanct

Via-Townhall

Ann Coulter

In The New York Times' profile on the family of Supreme Court nominee Elena Kagan, her aunt was quoted as saying: "There was thinking, always thinking" at the family's dinner table. "Nothing was sacrosanct."

Really? Nothing was sacrosanct? Because in my experience, on a scale of 1-to-infinity, the range of acceptable opinion among New York liberals goes from 1-to-1.001.

How would the following remarks fare at a dinner table on the Upper West Side where "nothing was sacrosanct": Hey, maybe that Joe McCarthy was onto something. What would prayer in the schools really hurt? How do we know gays are born that way? Is it possible that union demands have gone too far? Does it make sense to have three recycling bins in these microscopic Manhattan apartments? Say, has anyone read Charles Murray's latest book?

Those comments, considered "conversation starters" in most of the country, would get you banned from polite society in New York. Also, unless you want the whole room slowly backing away from you, also avoid: May I smoke? I heard it on Fox News and Merry Christmas!

Even members of survivalist Christian cults in Idaho at least know people who hold opposing views. New York liberals don't.

As Kagan herself described it, on the Upper West Side of New York where she grew up, "Nobody ever admitted to voting Republican." So, I guess you could say being a Democrat was "sacrosanct."

Even within the teeny-tiny range of approved liberal opinion in New York, disagreement will get you banned from the premises.

When, as dean of the Harvard Law School, Kagan disagreed with the Bill Clinton policy of "Don't ask, don't tell" for gays in the military, she open-mindedly banned military recruiters from the law school, denouncing Clinton's policy as "discriminatory," "deeply wrong," "unwise and unjust."

From this, I conclude that having gays serving openly in the military is "sacrosanct" for liberals.

Having gays NOT serve in the military is a position held by lots of people in other parts of the country, but I do not recall any Christian colleges banning military recruiters because the schools believed "Don't ask, don't tell" went too far the other way.

Not only is every weird, shared delusion of the New York liberal deemed sacrosanct, but what ought to be sacrosanct -- off the top of my head, human life -- isn't.

As Stan Evans says, whatever liberals disapprove of, they want banned (smoking, guns, practicing Christianity, ROTC, the Pledge of Allegiance) and whatever they approve of, they make mandatory (abortion-on-demand, gay marriage, pornography, condom distribution in public schools, screenings of "An Inconvenient Truth").

When liberals say, "nothing is sacrosanct," they mean "nothing other Americans consider sacrosanct is sacrosanct." They demonstrate their open-mindedness by ridiculing other people's dogma, but will not brook the most trifling criticism of their own dogmas.

Thus, for example, liberals sneer at the bluenoses and philistines of the "religious right" for objecting to taxpayer-funding of a crucifix submerged in a jar of urine, but would have you banned from public life for putting Matthew Shepard in a jar of urine, with or without taxpayer funding.

These famously broad-minded New Yorkers -- "thinking, always thinking" -- actually booed Mayor Rudy Giuliani when he showed up at the opera after pulling city funding from a museum exhibit that included a painting of the Virgin Mary plastered with close-up pornographic photos of women's vulvas.

(The New York Times fair-mindedly refused to ever mention the vulvas, instead suggesting that the mayor's objection was to the cow dung used in the composition.)

Has a decision to fund or not fund "art" ever gotten a politician in any other part of the country booed in public? And how might the Times refer to citizens booing a mayor who had withdrawn taxpayer funding for a painting of Rosa Parks covered in pornography?

If New York liberals insist on bragging about their intellectual bravado in believing "nothing is sacrosanct," it would really help if they could stop being the most easily offended, P.C., group-think, thin-skinned weanies in the entire universe and maybe ease up on the college "hate speech" codes, politically correct firings, and bans on military recruiters.

With that in mind, here are some questions it would be fun to ask a New York liberal like Supreme Court nominee Elena Kagan at her hearings next week:

-- Roughly one-third of Americans are Evangelical Christians. Do you personally know any Evangelical Christians? Name two.

-- In 1972, Richard Nixon was elected president with more than 60 percent of the vote, winning every state except Massachusetts and the District of Columbia. How many people do you know who voted for Nixon?

-- Appropriate or inappropriate: Schools passing out condoms to seventh-graders? Schools passing out cigarettes to seventh-graders?

-- Who is a greater threat to America, Sarah Palin or Mahmoud Ahmadinejad?

Harvard Law Dean Kagan Replaced Constitution Studies With International Law

Via- The New American

Joe Wolverton, II

On May 10, 2010, President Obama nominated Elena Kagan to the Supreme Court to fill the vacancy from the impending retirement of Justice John Paul Stevens at the end of the Supreme Court's 2009–2010 term. A significant entry in the catalog of Ms. Kagan’s remarkable achievements is her deanship of the über-prestigious Harvard Law School. In 2003, she was named, as the school’s first female dean, to succeed Robert C. Clark, who had held that post for over a decade. While manning the helm at Harvard Law, she attracted attention of alumni and observers for steering the ship away from the tried and true “case-law method” of studying the law.

A central plank in Kagan’s revolutionary platform is the abandonment of the requirement that first year law students study U.S. constitutional law. The course’s place in the curriculum was replaced by classes examining the laws of other nations and international law.

In fact, according to the requirements for receiving a J.D. as listed on the Harvard Law School website, the study of our republic’s founding document is nowhere to be found.

In 2006, after the changes were proposed by Kagan and approved by the faculty committee evaluating the suggestions, the school published a news release to explain the changes and Kagan offered the following justification for the abandonment of constitutional law studies:

“From the beginning of law school, students should learn to locate what they are learning about public and private law in the United States within the context of a larger universe — global networks of economic regulation and private ordering, public systems created through multilateral relations among states, and different and widely varying legal cultures and systems. Accordingly, the Law School will develop three foundation courses, each of which represents a door into the global sphere that students will use as context for U.S. law.”

The press release identifies the three new required courses Kagan introduced to replace constitutional law. The first covers comparative international law and was designed to “introduce students to the sources, institutions and procedures emerging over time through the bilateral and multilateral arrangements among states as well as the participation of nongovernmental actors.”

The second class, called “Legislation and Regulation” is designed to familiarize students with he world of legislation, regulation, and administration that creates and defines so much of our legal order.” In other words, the regulations and codes promulgated by the bureaucracy are more critical to the definition of our legal order than is the Constitution.

The final course, on comparative law, “will introduce students to one or more legal systems outside our own, to the borrowing and transmission of legal ideas across borders and to a variety of approaches to substantive and procedural law that are rooted in distinct cultures and traditions,” the release said. Again, Elena Kagan, President Barack Obama’s nominee to sit on the Supreme Court, believes a survey of “legal systems outside our own” is more valuable than a study of the Constitution.

Apart from the statements included in the press release, Elena Kagan explained her justification for the curriculum changes she instituted at Harvard in a 2008 article published in The Green Bag, a legal journal dedicated to publishing brief, readable articles about the law. In the piece, Kagan explained why she felt it necessary to replace constitutional law studies with classes geared to equipping lawyers with “tools for all the roles they will be called on to play."

One of the very important roles that these future leaders will play, according to the article, is the quest to find workable solutions to problems “ranging from climate change to terrorism to economic insecurity."

Neither the press release nor The Green Bag article indicates why Kagan believed that these classes could not be added to the curriculum without jettisoning the study of the Constitution.

While the benefits of the courses of study created by Elena Kagan are debatable, it is difficult to find a single sound argument for the abolition of the study of constitutional law. That is not to say that a class improving students’ international perspective is unnecessary. As a matter of fact, many of our own Founding Fathers made the study of international law one of the key aspects of their own education in anticipation of the Constitutional Convention of 1787.

The unanswered question is: Why could Elena Kagan not find room for these new classes without eliminating constitutional law study? Why was it an either/or situation, and why did she come down on the side of international and regulatory law and against the Constitution?

It would be similar to the English Department at Harvard determining that Shakespeare would no longer be required reading for students interested in a PhD in Elizabethan English literature.

Robert Alt, senior legal fellow and deputy director of the Center for Legal and Judicial Studies at the Heritage Foundation, reckons that the changes made by Kagan at Harvard offer a glimmer of insight into Kagan’s perception of the Constitution and its place in American jurisprudence. Even a scintilla of evidence is valuable given the dearth of reliable indications of Kagan’s constitutional mien.

“One of the things [that] we don’t know about Kagan, which she has not been terribly forthcoming on in previous questioning (during her nomination) for solicitor general, is how she views international law,” Alt said. “Should domestic law be influenced or modified by international law? We don’t know what she thinks.”

Article 2, Section 2 of the United States Constitution grants the president power to nominate and appoint, with the advice and consent of the Senate, judges of the Supreme Court. It is the responsibility of the Senate to enquire into Elena Kagan’s constitutional bent and her propensity for interpreting our foundational document in a manner consistent with established principles of federalism, separation of powers, and limited government.

As Mr. Alt, understandably concerned with the message sent by Kagan’s removal of constitutional law from the basic curriculum of Harvard Law School, observed, “This is an important question because there are others in the Obama administration, like Harold Koh, for instance, who have suggested with regard to the First Amendment, for instance, that perhaps the First Amendment should be modified in some way in accordance with international norms, in order to facilitate compliance with international agreements.” Harold Koh is the Legal Adviser to the Department of State and is controversial for his advocacy of using tenets of international law and foreign legal precedent to inform the deliberative process of judicial decision making in the United States.

The First Amendment that Koh would "modify" reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”