A leftist guide to mis-defining terms when it comes to Kagan

The American Prospect has written a little guide for its readers explaining why Republican attacks will fall off Kagan like eggs off Teflon.  You and I know that they won’t matter because of the Democratic majority, and maybe the American Prospect knows that too, because its defense is lazy.  One aspect of the defense, however, caught my eye, and I wanted to share it with you:

She’s an activist.

Republicans have pointed to two things — Kagan’s clerkships for Thurgood Marshall and liberal judge Abner Mikva, and her admiration for Israeli Supreme Court Justice Aharon Barak, whom she praised as a “judicial hero” — as evidence that she is a judicial activist who tailors her reading of the law to whatever result she wants to achieve. Criticism of Marshall, though, isn’t likely to take Republicans very far. As the first African American on the court, he’s a largely unimpeachable figure. Democrats will also note that some conservatives have expressed admiration for Barak, including Justice Antonin Scalia, the current intellectual leader of the conservative wing of the court.

This kind of criticism would offer an opportune moment for Kagan to provide a liberal rebuttal to John Roberts’ hollow conceit about judges merely calling balls and strikes.

The Democratic response, though, will likely be a simple one. In terms of overturning precedent, this court is the most activist one ever produced. This may be effective, but it also reinforces the conservative canard that judges simply interpret the law as written rather than resolve the inherent and inevitable tensions between the principles and obligations outlined in the Constitution.

There are three arguments there.  The first argument is that, simply because Marshall was the first black Supreme Court Justice, nobody can criticize his approach to judicial interpretation.  It’s a closed subject. This is not an argument, of course.  It’s the absence of argument.

The second argument is that the mere fact that Barak may have admirable traits means that he is off limits for criticism when it comes to his approach to judicial interpretation.  Again, this is simply a way of preventing intellectual discourse, and shutting down argument ab initio.

The third and final argument is that, because Roberts’ court is the most activist ever, no one can criticize Kagan on the ground that she might be an “activist.”  It’s this argument that intrigues me, because it shows how differently Lefties and Righties view the notion of judicial activism.

When conservatives think of activist judges, they think of judges who, at their core, are unconcerned with the limits the United States Constitution places on both federal and state governments in their relationship to the individual citizen.  Their decisions are decided by references to natural law, and penumbras, and African tribal decisions, and Israeli Supreme Court decisions, and emanations and emotions.  The Constitution, if it makes an appearance at all, is folded, spindled and mutilated into meaninglessness (there are those penumbras and emanations).

To the conservative mind, the anti-Constitutional bent of decisions made by liberal, or activist, judges, means that, to the extent a prior judicial decision violates Constitutional restrictions, that decision is invalid, and should be overruled.  In other words, merely because a case exists, it is not automatically valid precedent.  If the case was void ab initio, overruling the decision isn’t activism; it is, instead, a corrective act to reinstate Constitutional limitations on government.

To the Left, however, “activism” means any decision that overturns liberal precedent — even if that precedent is, in and of itself, unconstitutional.  It’s therefore no wonder the Left is dismayed by the fact that the Roberts court is tidying up the record and reversing preexisting cases enacted by activist judges.

Tony Blankley tells Republicans in the Senate that it’s time to stop playing by the old rules

Gentleman of the old school might confirm Kagan.  Americans who believe in the Constitution and its freedoms must not:

Those [traditional Senate] rules [for confirming Supreme Court Justices] might be summarized as follows: (1) The president is entitled to an appointee who generally shares his views (i.e., a liberal president is entitled to a liberal justice; a conservative president is entitled to a conservative justice). (2) A nominee should be confirmed if he or she is professionally qualified and of generally good character. (3) The only exception to Rule Two is if the nominee’s views are provably and dangerously outside the mainstream of respectable thought.

By those rules, most people would probably conclude that Ms. Kagan is entitled to confirmation — although I and others would argue that her restricted views on freedom of speech would disqualify her under Rule Three above.

But I want to make a different argument in this column: The current rules are obsolete, having come into being at a time when the federal courts had not yet been consciously politicized. Today, liberal presidents attempt to use their appointments with the intent to systematically undermine — not uphold — the Constitution. And they do so because their vision of an ever-more-statist America is inconsistent with the Constitution’s fundamental purpose: to limit the size and scope of government.

And note, this is not a case of “both sides do it,” although it is true that conservative presidents look for nominees who will support original intent, strict construction or other methods of trying to adhere to the Constitution.

But — and this is paramount — because liberal justices tend to seek to undermine the clear intent of the Constitution while conservative justices try to hold the line: The result is an inexorable march toward undermining the Constitution, with conservative appointments functioning as mere temporary holding actions.

As a conservative, I respect Republican senators who wish to venerate well-established traditions. But now, in the fateful spring of 2010, those senators need to consider which of conflicting traditions they intend to venerate. They can either venerate the traditional rules of confirmation or they can venerate the United States Constitution — but not both.

I introduce, as Exhibit A on behalf of this choice, the provision in Obamacare that requires every American citizen to buy a health insurance policy. When the case challenging the constitutionality of that provision reaches the Supreme Court (as about 20 state attorneys general are currently attempting to accomplish by litigation), the government will argue that it is permitted under the power of the federal government to regulate interstate commerce.

They will be forced to argue that the mere inaction of an individual American citizen is an act of interstate commerce worthy of regulation. If that proposition is upheld by the Supreme Court — then we no longer have a limited government. The government would then have the power to outlaw and punish (by fine or prison term) any American’s decision not to exercise, not to vote, not to eat four servings of vegetables a day — any human inaction would be sanctionable under the Interstate Commerce Clause — and then adios liberty.

Wednesday morning stuff *UPDATED*

A few things have crossed my radar this morning that I hope you’ll find as interesting as I did:

Is Michelle Obama depressed?  One of my friends thinks she is.  That is, she thinks Michelle has moved beyond anger and arrogance and landed in sheer misery.  She sent this link along as an example of Michelle’s current lack of happy fizz.  My friend may be right.  Michelle Obama, who has presented herself over the years as an angry person who feels that, both personally and by race, she’s always had the short end of the stick, probably believed that, when she got to the White House, she would suddenly be fulfilled and happy.  However, wherever you go, there you are.  Whether living in Chicago or the White House, Michelle is still Michelle — and she’s a person who has made a lifestyle out of angry grievance.  She doesn’t know from happy, and she’s probably more unhappy than ever now that she’s discovered that the White House isn’t a cure all for the anger that ails her.

As you know, I’ve been opposed from the beginning to inquiries into Elena Kagan’s private life.  Whether she is lesbian is irrelevant to her politics, which are defined by her liberalism, not her sexuality.  Michael Kinsley, however, has gone the other way.  He thinks that we ought to start savaging other justices private lives.  His first target:  Antonin Scalia, who has nine children:  “Why does Justice Antonin Scalia, by common consent the leading intellectual force on the Court, have nine children? Is this normal? Or should I say ‘normal,’ as some people choose to define it? Can he represent the views of ordinary Americans when he practices such a minority lifestyle? After all, having nine children is far more unusual in this country than, say, being a lesbian.”  If I was in the same room as Kinsley, this is what I would say:  “It’s true that so many children isn’t the norm, but having children is the norm, both biologically and culturally.  And fortunately we’re still enough of a freedom loving country that we allow people to figure out how many of the norm they want in their lives.”  (H/t:  The Anchoress)

In my post the other day about liberal illogic, I noted the illogic that has American blacks hostile to the police, even though blacks are most likely to be the victims of black-on-black crime.  I acknowledged that blacks in the past had good reason to fear the police, who did harass, assault, arrest and even kill them as form of sport.  But I said, the past is past.  Well, it turns out that, for American blacks, the past is not the past, because the liberal media is a well-spring of misinformation.  The media makes much of the fact that police target minorities more, without stating (a) that minorities commit more crimes and (b) that minorities are actually understopped relative to the amount of crime they commit.  Here’s the cause and effect question for you:  If minorities were targeted proportionate to the amount of crime they commit, might they be deterred from committing more crime?  And as you think about that question, do keep in mind that minority criminals commit the majority of their acts against their fellow minorities.

Peter Beinart says that, if we really love Israel, we should beat up on her more.  To which I say:  wife-beaters.  There comes a point where “I love her” is a justification for abuse, not a declaration of true feelings.  Beinart’s attitude would be more palatable, of course, if people loved the Palestinians, Saudis, Iranians, Egyptians, etc., enough to criticize them constantly too.  But they don’t.  It’s only Israel who comes in for this violent, destructive, sometimes deadly “love.”

UPDATEDavid Solway on the scary cipher in the White House.

The Mexican President, whose country is home to some of the most restrictive immigration laws in the world, blasts Arizona from trying to enforce America’s much laxer federal immigration laws.  I know why he’s upset.  If America really tightens her borders, Mexico will have to clean its own house.  It will no longer have a safety valve for the unemployed and the criminal, nor will it have the billions of dollars these “immigrants” (none of whom are committed to America) routinely send to float the Mexican economy.  Obama should have slapped him where he stood.  Instead, he essentially supported Calderon’s swipe at our national sovereignty.  Barack Obama, you are a very bad man; a very bad man (see at 1:08; 1:20; 2:17; 3:35)

UPDATE IIA blast from the past.  I don’t know why, but I’ve always found it cool to peer backwards through time and really look at the people.  They are so like us — as the reconstructed image shows — and yet so very, very different in their world view.

UPDATE III:  Obama, no matter how careful he is, exposes his incoherence and bias.

Letting others take down E.J. Dionne, so we don’t have to

I read E.J. Dionne’s fatuous defense of Kagan in The New Republic, and started formulating a response to his superficial argument comparing Kagan to Roberts.  (It was so superficial it almost, but not quite, devolved into “and they’re both homo sapiens.”)  Fortunately, I was spared that effort when I read both Paul Mirengoff’s and Ed Whelan’s posts today, both of which say precisely what I would have said if I wrote as well and had as much information at my fingertips as these guys do.

Bottom line: Kagan’s legal reasoning has proven to be less than sophisticated, and is frequently (too frequently) wrong.  Further, any professional comparisons between her and Roberts really do stop at the “they’re both homo sapiens” level.

Your quote for the day

J.C. Arenas on the laundry list of qualifications for Obama’s Supreme Court picks:

Obama’s first Supreme Court appointment was Sonia Sotomayor, the Bronx-bred daughter of Puerto Rican parents, who supposedly was a valedictorian student with a deficiency in English and become an Ivy-League educated jurist credited with saving Major League Baseball.

Now we have Elena Kagan, the granddaughter of immigrants, who as Dean of Harvard Law, introduced the concepts of civil debate, a faculty lounge, free coffee and tampons.

If this woman has some legitimate qualifications to serve as a Supreme Court Justice, I hope they are presented soon; otherwise I’m going to have a win a year supply of Laffy Taffy to find a bigger joke.

The word “mediocrity” springs to mind.  So does the story Harrison Bergeron.

Why Elena Kagan’s sexual orientation is irrelevant

I know that much is being said amongst both Progressives and Conservatives about Kagan’s possible lesbianism.  Progressives are mad at her for being in the closet; Conservatives are worried about her orientation affecting her rulings as a Supreme Court judge.  Both are completely wrong.

Regarding the Progressive’s disdain for Kagan’s decision to keep her private life private, I say get out of people’s bedrooms.  This is Kagan’s private life we’re talking about.  She gets to decide how she wants to handle it.  It’s not for political activists to decide what is best for her, her family, and her significant others and friends.

As for Conservatives, even if Kagan is lesbian, it’s irrelevant.  What matters is her unabashed Progressivism.  That will control her thinking on whatever issue comes before her, whether it’s corporate taxes, the death penalty, abortion or gay marriage.  Her decisions will be completely consistent with any other Progressive’s, regardless of hetero- or homosexuality.  Her bedroom behavior is no one’s business because her political decisions are affected by her political orientation, not her sexual orientation.

You and I may have cause to decry the fact that gays and lesbians, as part of identity politics, gravitate almost unthinkingly to Progressive positions, but that’s not the issue with Kagan.  That is, we’re not arguing whether her sexuality decided her politics.  The fact is that she is now, for whatever reason, a Progressive, and it’s her politics, not her sex life, that should be under scrutiny.

Harvard law professor’s defense of Kagan doesn’t hide her anti-military animus

I’d like to analyze a Harvard’s law prof’s defense of a Harvard law dean.  The Prof (and ex-dean himself) is Robert Clark, who wrote an op-ed in the WSJ defending Supreme Court nominee Elena Kagan’s approach to the military during her tenure as dean of Harvard Law.  He spells out the facts, which I’ll accept as true (although with significant omissions), that he contends proves that Kagan loves the military.  If his opinion piece passes for legal analysis at HLS . . . well, they’re all Obamas there, I guess.

Clark begins by explaining that, when Kagan came on board as dean of Harvard Law, Harvard already had a long-standing policy barring any recruiting by employers who hadn’t signed onto a statement that they didn’t discriminate:

As dean, Ms. Kagan basically followed a strategy toward military recruiting that was already in place. Here, some background may be helpful: Since 1979, the law school has had a policy requiring all employers who wish to use the assistance of the School’s Office of Career Services (OCS) to schedule interviews and recruit students to sign a statement that they do not discriminate on the basis of race, gender, sexual orientation, and so on.

(Just FYI, I have a big problem with forcing employers to sign that kind of stuff as a precondition for recruiting.  I don’t think Harvard should be narrowing the pool of prospective employers for their students who are, after all, adults.  Even more than being mere adults, since they’re graduates of Hah-vahd Law, one would think they’d learned a little about analyzing their own needs and the type of employer they wanted.  Had I been in charge, I would simply have required that all comers inform prospective employees what their non-discrimination policies are.  But then again, unlike a liberal, I prefer more information, not less.  But back to Clark’s Kagan narrative. . . .)

In the early years after Harvard started censoring prospective employers, the military circumvented its inability to sign this statement (a Congressionally imposed inability, I might add), by appearing on campus as the guest of a school organization:

For years, the U.S. military, because of its “don’t ask, don’t tell” policy, was not able to sign such a statement and so did not use OCS. It did, however, regularly recruit on campus because it was invited to do so by an official student organization, the Harvard Law School Veterans Association.

Eventually, the Air Force, fed up by its second class treatment, challenged Harvard for violating the 1996 Solomon Amendment (which, like “don’t ask, don’t tell,” passed during a Democratic administration).  That Amendment says that a school can’t take federal money and than ban the American military from its campus. (Or as we used to say in Texas, you dance with them what brung ya’.)

The symbolic effect of this special treatment of military recruiters was important, but the practical effect on recruiting logistics was minimal. In 2002, however, the Air Force took a hard line with Harvard and argued that this pattern did not provide strictly equal access for military recruiters and thus violated the 1996 Solomon Amendment, which denies certain federal funds to an education institution that “prohibits or in effect prevent” military recruiting. It credibly threatened to bring an end to federal funding of all research at the university.

The Law School is so damn rich, Clark says, it could survive without federal money, but other colleges at Harvard might have been hurt by losing your and my taxpayer dollars.  Although it violated every liberal principle in the faculty’s collective body, Harvard Law bowed to Mammon and gave the military a pass on its (Democratically mandated) inability to sign the school’s (Nanny state) non-discrimination pledge. The liberals, of course, made their usual “we love the military” speech, even as they sought to undercut its efficiency.

This penalty would not have hurt the law school, which has virtually no such funding. But it would have hurt other schools at Harvard, principally the medical school and the school of public health. It would have eliminated about 15% of the university’s operating budget.

After much deliberation with the president of Harvard and other university officials, we decided to make an exception for the military to the school’s nondiscrimination policy. At the same time, I, along with many faculty and students, publicly stated our opposition to the military’s policy, which we considered both unwise and unjust, even as we explicitly affirmed our profound gratitude to the military. Virtually all law schools affiliated with large universities did the same.

Kagan rolled with this new policy favoring the military, but complained about it vociferously. That is, at the beginning of each recruiting season, she went out of her way to pay lip service to the military, and then to attack it for following a “don’t ask, don’t tell” policy — a policy, I might add, enacted by a Democratic Congress and signed by Bill Clinton, her former employer:

When Ms. Kagan became dean in July of 2003, she upheld this newer policy. Military recruiters used OCS services, but at the beginning of each interviewing season she wrote a public memorandum explaining the exception to the school’s nondiscrimination policy, stating her objection to “don’t ask, don’t tell,” and expressing her strong view that military service is a noble and socially valuable career path that should be encouraged and open to all of our graduates.

Kagan was not happy with the Solomon Amendment’s dictates, something made clear the moment the opportunity arose for her to block the military from Harvard Law.  When the Third Circuit said that the Solomon Amendment was unconstitutional, Kagan immediately kicked the military off campus again, depriving it off access to some of America’s best and brightest during time of war:

In November 2004, however, the Third Circuit Court of Appeals found that the Solomon Amendment infringed improperly on law schools’ First Amendment freedoms. So Ms. Kagan returned the school to its pre-2002 practice of not allowing the military to use OCS, but allowing them to recruit via the student group.

Unfortunately for Kagan, the U.S. Supreme Court ultimately concluded that the Solomon Amendment was constitutionally sound and held that, unless schools taking federal money give access to the U.S. military, they can kiss their dollars good-bye. Despite the largest endowment in America, Harvard chose free money over principles, and once again opened its doors (complaining bitterly all the while):

Yet this reversion only lasted a semester because the Department of Defense again threatened to cut off federal funding to all of Harvard, and because the U.S. Supreme Court reversed the Third Circuit’s decision. Once again, military recruiters were allowed to use OCS, even as the dean and most of the faculty and student body voiced opposition to “don’t ask, don’t tell.”

From this story, Clark reaches what is, to me, a bizarre conclusion (emphasis mine):

Outside observers may disagree with the moral and policy judgments made by those at Harvard Law School. But it would be very wrong to portray Elena Kagan as hostile to the U.S. military. Quite the opposite is true.

Do you think Clark’s conclusion makes sense.  As I read his own words, he is describing a woman who, at every opportunity, tried to block the military — a military at war — from having access to people who are presumably the nation’s top law students.  She did so because she doesn’t agree with a federal policy put into place by her own own political party and signed by her former boss, Bill Clinton. Not only that, when she was forced to give the military access to these students, she repeatedly voiced her hostility to the military’s program, ignoring the fact that the military was constrained by a political compromise enacted under the aegis of her Democratic party.  Would you remind me where this falls into the “not hostile to the U.S. military” category?

And while I’m at it, let me add a few salient facts that Clark conveniently forgot to mention in his little narrative.

First, as Clark’s narrative tells, every year when Kagan reluctantly allowed military recruiters onto campus, she sent out a formal announcement bemoaning the fact that she was forced to do so.  These were no dry statements.  They were emotionally charged, and the emotions hit the wrong target:

Consider these words in particular from her letters to “All Members of the Harvard Law School Community”: On Oct. 6, 2003, Kagan explained that she abhorred “the military’s discriminatory recruitment policy….The military’s policy deprives many men and women of courage and character from having the opportunity to serve their country in the greatest way possible. This is a profound wrong — a moral injustice of the first order.” On Sep. 28, 2004: “…the military’s recruitment policy is both unjust and unwise. The military’s policy deprives…” etc. And on March 7, 2006: “I hope that many members of the Harvard Law School community will accept the Court’s invitation to express their views clearly and forcefully regarding the military’s discriminatory employment policy. As I have said before, I believe that policy is profoundly wrong — both unwise and unjust…,” etc.

Notice, time and again: “the military’s discriminatory recruitment policy,” “the military’s policy,” “the military’s recruitment policy,” “the military’s discriminatory employment policy.”

But it is not the military’s policy. It is the policy of the U.S. Government, based on legislation passed in 1993 by (a Democratic) Congress, signed into law and implemented by the Clinton administration, legislation and implementation that are currently continued by a Democratic administration and a Democratic Congress. It is intellectually wrong and morally cowardly to call this the “military’s policy.” Wrong for obvious reasons. Cowardly because it allowed Kagan to go ahead and serve in the Clinton administration that enforced this policy she so detests, and to welcome to Harvard as Dean former members of that administration, as well as Senators and Congressmen who actually voted for the law–which is more than the military recruiters whom Kagan sought to ban did.

Even liberal commentators, most notably Peter Beinart, who deeply disapproves of “don’t ask, don’t tell,” have recognized that Kagan loaded, aimed, and then shot the wrong target:

The military, like Congress, the courts and the presidency, is one of our defining public institutions. To question its moral legitimacy is not like questioning the moral legitimacy of General Electric. And that’s exactly what banning the military from campus does. It suggests that Harvard thinks not just that the military’s anti-gay policy is immoral (which it emphatically is) but that the institution itself is immoral. It’s like refusing to sing the national anthem because you’re upset at the Bush administration’s torture policies or refusing to salute the flag because of the way Washington responded to Hurricane Katrina. It’s a statement of profound alienation from your country, and will be received by other Americans as such.

Beinart’s absolutely right.  He recommends that Kagan apologize, but I don’t think an apology will cut the mustard with Americans who recognize in her a profound disdain for the military, one that can’t be swept away with a muttered, “I’m sorry I said that.”

Second, Clark’s narrative also misses the fact that Kagan didn’t just complain about the Solomon Amendment — she acted upon her complaint.  By doing so, as Scott Johnson explains, she proved herself to be in a clear minority as a legal thinker (although comfortably in lockstep with America’s Ivory Tower elites):

When the Supreme Court accepted the Department of Defense’s appeal from the Third Circuit decision, Kagan got on board. She was one of 40 Harvard Law School professors who signed a friend-of-the-court brief written by Walter Dellinger supporting the FAIR plaintiffs.

In the brief Dellinger argued that the Solomon Amendment applied only to schools that specifically prohibited military access on campus, not to schools’ whose policies simply had the (allegedly) incidental effect of doing so. Dellinger distinguished the law schools’ contemporary anti-discrimination policies from Vietnam-era academic anti-military policies.

Dellinger’s argument based on the language of the Solomon Amendment was, to say the least, strained, and the Supreme Court gave it the back of its hand in the Court’s 8-0 opinion upholding the Solomon Amendment. Even Justice Stevens rejected it.

Here we have Kagan herself, as Dean of the Harvard Law School, signing off on a brief making an argument so far out that not a single member of the Supreme Court found it worthy of adherence. This would seem to provide some evidence for the proposition that Kagan’s views lie somewhere outside the mainstream of Supreme Court jurisprudence.

Perhaps the institutional imperatives to which she gave voice as dean of the Harvard Law School overrode her common sense. For other reasons, Kagan has noted she didn’t write the brief; she merely signed it.

Kagan’s side decisively lost the FAIR case in the Supreme Court. I wrote while the case was pending in the Supreme Court that some lawsuits deserve a fate worse than failure. While decent military recruiters suffered the rudeness of their purported betters at Yale Law School and elsewhere in silence, the armed services of the United States were (and are) actively defending the freedom of those schools from peril. The rank ingratitude of those who should know better is a disgrace that deserves to be widely recognized as such.

So, not only does Clark’s conclusion that Kagan is a proud supporter of the American military fail to mesh with his own facts, it also fails to mesh with the facts he excluded from his summary of her approach to the military.

Kagan is certainly not a rabid anti-military person.  As far as we know, she never took to the streets, and she never said anything intemperate.  Nevertheless, during her war-time tenure as Harvard Law’s dean, she actively worked against the military, in violation of rather explicit federal law.  In addition, when the opportunity came along, she signed her name to a brief so contrary to constitutional law that even the liberal jurists on the Supreme Court could not support her position.  (This might not be surprising.  She seems to be careless and unprepared when it comes to acting like a lawyer, something worth considering in light of her Supreme Court nomination.)

Although this post touches heavily upon “don’t ask, don’t tell,” it is not about the merits of that government policy.  It is, instead, about the fact that Kagan’s defenders will obfuscate the record to hide the fact that, as Michael Gerson has said, “many Americans will find her acts offensive”:

During a pastel career, Kagan made one neon decision — to ban military recruiters from the Office of Career Services when she was dean of Harvard Law School, based on her strong opposition to the “don’t ask, don’t tell” policy. Legal experts understand that this is a controversy at many law schools. Kagan will explain that she followed the law and the ruling of the courts, even while arguing to overturn the policy.

I suspect, however, that many Americans will find her actions offensive — with far more intensity than the White House expects. Kagan not only took this controversial action, she publicly attacked the policy as “deeply wrong,” “unwise and unjust” and “a moral injustice of the first order.” It will be hard to downplay an issue on which Kagan has a history of grandstanding. Blocking military recruiters may seem normal in academic circles, but it will seem radical in much of the country — like banning the American flag from campus to protest some policy disagreement with the government. This controversy will add to a broader narrative that “Manhattan’s liberal, intellectual Upper West Side” is disconnected from the views and values of Middle America.

Elena Kagan Open Thread *UPDATED*

To no one’s surprise, Obama nominated Elena Kagan to fill the opening on the Supreme Court.  Many have pointed to the fact that she’s never served as a judge before as one of the main reasons Obama did so — she has no paper trail.  Since I have a generally low estimation of judges at the best of times, I can’t see that it’s too disastrous that she hasn’t sat on the bench.  This is especially true considering that being on the Supreme Court is an entirely different experience from presiding over a trial.  The skill sets just aren’t the same.

My primary sense of Kagan is that she is, first and foremost, a leftist politician.  The perfect evidence of this fact is her decision to kick the military out of Harvard Law School.  That was knee-jerk Leftism pandering to a base.

Funnily enough, the one thing I don’t carry away when thinking of Kagan is intelligence or, rather, I should say I don’t have a sense of a well-stocked brain, strong analytical abilities, and a quick mind.  Instead, she strikes me as something of an Obama clone:  a feral intelligence, unhindered by real knowledge, that is most adept at using Leftist political trends for self-advancement.

I’m sure she will be confirmed — since she’s got no record of anything to support not being confirmed — and I’m hopeful that the intellectual heft that Roberts, Alito, Scalia and Thomas bring to the court will overwhelm her.

UPDATE: Jennifer Rubin on the main problem with Kagan’s activism:

Her entire career has been spent either as a law school administrator or as an advocate (e.g., in a political position in the Clinton administration or as solicitor general). The question she was used to asking herself was: what do I want the law to be? But the business of judging is determining what the law is. Liberals see no difference — the law is what five justices say it is. But most Americans and a majority of the Court think otherwise. So the questions for her now are: how does she decide what the law is, what method does she use for separating personal conviction and constitutional interpretation, and does she have a view of the Supreme Court that is something other than as an uber-legislature? We’ll find out this summer.

Don’t stop him; he serves a chance to kill again

If there was ever an example of misguided compassion, this story out of Britain must rank at the top of the list:

A psychopathic Satanist, given a ‘life means life’ sentence for strangling his cellmate whilst already serving life for murder, has had that cut to 20 years on appeal in order ‘to give him light at the end of the tunnel’.

The move came despite the admission that double killer Clement McNally described the murder as ‘better than sex’ and revealed he would kill again if the opportunity arose.

Father-of-one Anthony Hesketh, of Eastham Way, Worsley, who was in custody for a driving offence and facing drugs charges, was strangled with a T-shirt in September 2003. He was found dead on the floor of the Strangeways cell he shared with McNally.

McNally, 34 – a devil worshipper who decorated his cell with satanic symbols and suffers from ‘psychopathic, narcissistic, paranoid and obsessive-compulsive disorders, all mixed together’ – was serving a mandatory life term for stabbing to death his friend, Arthur Skelly, outside a party in Ashton-under-Lyne in July 2002.

He was given a life term, with a whole life tariff, for the second killing, after pleading guilty to manslaughter by way of diminished responsibility at Manchester Crown Court on July 12 2004.

But now the minimum term on his life sentence has been slashed to 20 years by Lord Justice Hughes, at London’s Criminal Appeal Court. The judge said it was not right that McNally should be denied a light at the end of the tunnel and never have a chance of release.


Lord Justice Hughes, sitting with Mr Justice MacKay and Mr Justice Davis, said of Mr Hesketh’s killing: ‘McNally had no particular grievance against his victim – he simply suffered an urge to kill him.

‘He said it was exciting – better than sex. He said Satan told him to do things and it was his job to do as he was told.

‘He said he was not in the least bit sorry for what he had done, but had derived a great deal of pleasure from subsequently thinking about it.

‘He suffers from compulsive homicidal urges and poses an exceptional risk to other prisoners. He made it perfectly clear that he would kill again if the opportunity arose and the urge to kill was of sufficient intensity.’

However the judge said it was wrong not to give McNally the chance of being freed if, at some point in the future, his mental state stabilises to the extent that the authorities no longer consider him a danger to society.

He told the court: ‘The life sentence was plainly correct as he was likely to represent a danger of the gravest kind, for a period which could not be determined.

‘However the imposition of a whole life tariff was a mistaken application of the process of sentencing.

‘The life sentence itself is designed to cater for a prisoner in whom it cannot be seen when, or if ever, they will cease to be a danger to the public.

It’s amazing how the judge doesn’t seem to realize that, for a man who murdered two people in cold blood, maybe a life without “a light at the end of the tunnel” is just the right prescription.

Maybe this is just the pendulum swinging.  England used to hang children for stealing a loaf of bread.  Now it freely contemplates giving a second start to an unusually cold-blooded killer.  I would suggest, though, that the fact that England was disproportionately punitive 200 years ago doesn’t mean it needs to be disproportionately . . . well, compassion isn’t the right word, because some innocent always gets hurt . . . but disproportionately stupid now.

Cross-dressing jihadists, disillusioned Leftists, and judicial madness

Sadie sent me a great trio of stories today, and I want to pass them on to you:

The UN wants to make sure that the Western nation’s efforts to protect themselves against cross-dressing jihadists (you know, those guys who don burqas to hide bombs) don’t offend transgendered individuals (who may or may not be hiding bombs).   Here’s a quiz for you:  On a scale of one to five, with one being not serious at all and five being very serious, answer two questions.  First, how serious do you think the huge number of socialist and or Islamist tinpot dictatorships that hold sway in the UN are about protecting transgendered rights?  Second, how serious do you think the huge number of socialist and or Islamist tinpot dictatorships that hold sway in the UN are about ensuring that Western democracies are able to defend themselves against socialist and Islamist tinpot dictatorships?

In the too little too late category, one more sign that the bloom is wearing off the Leftist rose when it comes to Obama worship.  Leftist stalwart Richard Cohen, reviewing a hagiographic HBO “documentary” about Obama’s election, has this to say:  “What’s striking about this inside look at Obama is how being inside gets you nowhere. It is virtually the same as being outside. What’s also striking about this movie is its lack of arc.”  In other words, Cohen is starting to realize, as we have long known, that with Obama there’s no “there there,” a problem made worse by the habit his most rabid fans have of trying to prop this empty suit up high on a pedestal.

Have I mentioned how much I dislike judges?  In a long career, I can’t tell you the number of times I’ve dealt with judges who let utterly insane, unprovable, legally impossible cases go forward because the plaintiffs’ claims messed perfectly with the judges’ activist biases.  We now have another example of judicial activism, in which a judge gave a pass to a case against oil companies alleging that they caused Hurricane Katrina by increasing global warming.  What!?  No lawsuits against cows, India or China?  And how about a more logical suit against the unholy cabal of corrupt government officials and environmentalists who ensured that the levies would break?  Nah.  That last one is impossible as being logical and politically incorrect.

Remind me not to send my teenage girls to school in England

I gave the post the above title because, in England, even a woman who is a convicted sexual predator gets to keep up her relationship with the victim:

A public school music teacher was today jailed for lesbian sex with a 15-year-old pupil – but was given an astonishing green light to continue the ‘affair’ when out of prison.

The court heard trumpet teacher Helen Goddard, 26, used sex toys and fluffy handcuffs on the ‘vulnerable’ child, helped weave a web of lies so the girl could stay in her flat overnight, and took her on a dirty weekend in Paris, where they joined a gay pride march.

But despite hearing from the girl’s parents the devastating effect the five-month sexual relationship had on the teenager, Judge Anthony Pitts rejected a prosecution request to ban the teacher from contacting her victim for five years, claiming it would be ‘cruel’ to the child.

Instead, she is allowed to write to her now, and will be able to see her in private the moment she is released from jail, likely to be just half-way through her 15-month sentence.

Goddard actually punched the air in victory in the dock when she realised her ‘relationship’ with her still-underage pupil could continue.

Roe v Wade a warning about Supreme Court involvement in gay marriage

Whether you are for or against gay marriage, Robert George issues a sound warning about the dangers that flow from letting the Supreme Court get its hands on the issue:

It would be disastrous for the justices to do so [rule against California's Prop. 8 and, by extension, make gay marriage the law of the land]. They would repeat the error in Roe v. Wade: namely, trying to remove a morally charged policy issue from the forums of democratic deliberation and resolve it according to their personal lights.

Even many supporters of legal abortion now consider Roe a mistake. Lacking any basis in the text, logic or original understanding of the Constitution, the decision became a symbol of the judicial usurpation of authority vested in the people and their representatives. It sent the message that judges need not be impartial umpires—as both John Roberts and Sonia Sotomayor say they should be—but that judges can impose their policy preferences under the pretext of enforcing constitutional guarantees.

By short-circuiting the democratic process, Roe inflamed the culture war that has divided our nation and polarized our politics. Abortion, which the Court purported to settle in 1973, remains the most unsettled issue in American politics—and the most unsettling. Another Roe would deepen the culture war and prolong it indefinitely.

Wise Latina in on the Supreme Court

It was a foregone conclusion, but it’s still irksome that the RINOs piled on for Sotomayor.  It’s not just that she’s a judicial activist who dislikes self-defense, lies about her record, and shilled for a radical Puerto Rican group.  It’s that the hearings showed something very, very specific about her:  she’s a complete mediocrity.  The woman is as dumb as a somewhat smart post.  She’s a slow thinker.  She’s uninformed.  She’s a tribute, not to brains and hard work, but to affirmative action.

On the good side.  It is entirely possible that the charming and tactful Justice Roberts might be able to move that slow brain into a different world view.  If she were as bright as he, it is likely that she’d be able to match him argument for argument.  As a lesser legal light (heck, a lesser anything light), she might not be able to muster coherent arguments to justify her positions, and may prove to be a very weak liberal link indeed.

Only I can own me! — by guest blogger Danny Lemieux

This clip of today’s Sotomayor hearings may just have hit upon the most important constitutional question that faces us all as we confront our devolution into the Obamatopian State.

In this segment, Senator Tom Coburn (R., OK) asks Judge Sotomayor whether she agrees that Americans have a basic right to self defense. The ensuing silence is deafening. It is enlightening in that it reveals her not only to be mendacious but clueless: asking herself whether the Constitution grants Americans a right to self-defense, the judge could not even answer her own question. She said that she could not think of such a Constitutional right.

Now, granted, Judge Sotomayor has a difficult job. She needs to communicate answers which sound rational, reasonable and wise while obfuscating what she truly believes. Not everyone is adept at such two-track thinking and thus, the wheels turn slowly. The net effect is somewhat akin to a cell phone call fading in and out of range as the caller ducks behind rhetorical hills. So let me help her out by pointing to one of the underlying foundations of our Constitution as enumerated in the Declaration of Independence . . . you know, the one that refers to a God-given right to “life, liberty and the pursuit of happiness”.

My life is my own. It was given to me by God, or so says the Declaration of Independence. Supposedly, the State can make no claim upon my life . . . at least this is what I presume to be the underlying principle of the 13th Amendment banning slavery or involuntary servitude. Yet, this is exactly what the State does when it professes to dictates if, when, how and under what circumstances I am allowed to preserve (or end, for that matter) my life. It asserts a right over my life that could only exist if my life was subject to the whims of the State. At that point, I would not be a free citizen.

Just for the record, I will refuse ever to cede that right to the State, even on pain of death. I was born free and I fully plan to die free. I will never accept the right of the State to dictate if, when and whether I must sacrifice my life to another. This is a big part of what makes me an American.

Other countries don’t accept this and it’s not just barbaric backwaters like North Korea and Iran. British or Canadian passports, for example, quite explicitly (even proudly) proclaim their members to be “subjects” of another human being, Her Majesty the Queen. Although there is talk about redefining British subjects as “Citizens of the EU”, the words EU and “free” hardly go together, do they. Citizens of the EU quite explicitly do NOT have a right to self-defense.

Now, in fairness, the 13th Amendment does not preclude voluntary servitude and I suspect that this is where many of my fellow citizens on the Democrat /Left long to go. They want to abdicate their freedoms under the delusion that a benevolent master will relieve the burdens and responsibilities of freedom from their shoulders in the coming Obamatopia. To them, I say you’re welcome to it: just find a way to finance it yourselves and then get out the way of those of us that insist on staying free men and free women. After all, making claims on my labor without my consent also violates the 13th Amendment. Perhaps we really are devolving into a two-tier society: one of citizens, the other of serfs.

Sotomayor a true judge — incoherent *UPDATED*

You know that I don’t like judges.  I’ve certainly made no secret of that fact, and it’s no doubt a by-product of practicing law in a region crawling with activist judges.  Listening to Sotomayor struggle to articulate things — and to avoid her own footprint — in response to Sen. Lindsay Graham’s questioning is painful.  It’s especially embarrassing when you hear her try to explain why the Constitution directly addressed abortion.

(Graham’s questioning, incidentally, is excellent.  He makes incredibly good use of his “good ole boy” persona to leave her without anything to say.  When Sotomayor does answer, her answers are manifestly non-responsive.)

While Sotomayor’s incoherence and weaseling aren’t surprising, what is surprising is the truly nasty attack that Nancy Benac at the AP — the AP! — launched against her:

It’s a good thing Sonia Sotomayor speaks Sotomayoran.

After week upon week in which plenty of other people on the planet interpreted Sotomayor’s past comments, the Supreme Court nominee at last got a chance to deconstruct her own words Tuesday before the Senate Judiciary Committee.

Fingers splayed, palms flat, hands bouncing up and then deliberately pressing down to the table, Sotomayor elaborated, clarified, expanded, retracted.

She drew loopy circles on her paper; she ran rhetorical circles around her past words.

“I didn’t intend to suggest …” she explained.

“What I was speaking about …” she offered.

“As I have tried to explain …” she parsed.

“I wasn’t talking about …” she demurred.

She was a tough critic at times.

“I was using a rhetorical flourish that fell flat,” she averred.

“It was bad,” she said. Of her own words.

You really have to read the whole thing to get the flavor.  Benac is hostile.  It’s bizarre coming from an AP writer.  I wonder how long Benac will have a job.

UPDATE:  Welcome, Instapundit readers!  This is, of course, the obligatory (and heartfelt) “stop and look around” message.  I really do mean it, though.  Much as I’m delighted that you’re visiting this post, it’s not the best representation of how I write.  If you want to see whether I’m worth visiting again, you’ll get a better sense of me by reading this post (which is one of my periodic better efforts), or this one (which is pretty typical for me).

UPDATE II:  For more on the fact that Sotomayor is not merely imbecilic, but is also dishonest, Jennifer Rubin is a great place to start.  The question then, and it’s a question only for intellectual entertainment, is whether she knows she’s lying or whether she’s a pathological narcissist whose version of the absolute truth is always defined by the needs of the moment.

What I wish some senator would say to Sotomayor *UPDATED*

The Washington Post is warning Republican senators not to be mean to poor Judge Sotomayor.  It’s a funny (inadvertently funny) article, because the Post editors acknowledge that Obama was anything but gracious when he was a Senator; then they explain why, even though he wasn’t gracious, he was right; and then they urge Republicans to be totally nice to Sotomayor, presumably because Obama is still right.

Of course, the main reason Republicans are being told to be nice is because Sotomayor is a woman and a Hispanic.  If I were a senator, my opening statement, before I began my questions, would be short and sweet:

Welcome, Judge Sotomayor.  Before I begin my questions about your qualifications and your understanding of a Supreme Court justice’s role, I’d like to address one thing.  My questioning will be rigorous.  I will not offend you, and every woman and Hispanic in America, by acting as if either your sex or your ethnic identity have rendered you incapable of standing up to the same brisk scrutiny as any other judicial candidate who has appeared before this body.

Mine is a constitutional role and I take it very seriously.  The Supreme Court is the court of last appeal in this land, and it is the court that it is responsible for ensuring that the laws of this land comport with the Constitution.  I would therefore be remiss in my duty, and insulting to you, if I treated you as a lesser being by denying you the opportunity fully to explain your views.

UPDATE: More on the race issue.  After you’ve what Tom Elia has at his blog, come back and tell me if Jesse Washington’s comments make any sense at all.

Follow the money

Something very weird is going on when a woman has worked 25 plus years as a lawyer (in both the private and public sector), but has only about $1,000 in savings, and less than $1,000,000 in equity.

Financial records may show that (a) she gave everything to charity; (b) she gave everything to poor relatives; (c) she had terrible and costly health problems; (d) that she has a drug or gambling problem; or (e) that she is, and always had been, profligate beyond reason.  Suggestions (a) through (c) would speak well of the woman; possibilities (d) and (e) would speak badly of her, especially if she were being put forward to fill a job that requires wisdom, balance, and an understanding of the way business and money work.

I’m talking, of course, of Sonia Sotomayor, and the bizarre case of the missing money.   I wonder if this summer’s hearings will delve into this interesting little mystery.

Peeling off the Sotomayor layers

Phyllis Chesler wrote a nice column today reminding conservatives (a) not to Bork Sotomayor (because two wrongs definitely don’t make a right); and (b) to make sure to develop Sotomayor’s understanding of the Constitution and her role as a judge — because, after all, that is what this whole job interview is about.

Because of the good news/bad news that keeps flowing from Sotomayor’s sudden presence in the popular consciousness (which shows her as a potentially racist, potential protector of the First Amendment; potential identity politics ideologue, potential Catholic voter on abortion, etc.), Chesler is absolutely right about approaching Sotomayor with both diligence and respect.  The same good news/bad news cycle also reminded me of the Simpson’s episode “Hungry are the Damned.”  Pay close attention to the cookbook scene:

Sotomayor’s good instincts on free speech

Sotomayor’s statements about judges (better if they’re female and minority) and their role (to make policy) have been disturbing.  It’s worth nothing though that, as James Taranto points out that, on at least one occasion Sotomayor came out strongly in favor of free speech, even though it was very ugly speech:

Sotomayor Plays Against Type

Blogger Tom Goldstein has a roundup of Judge Sonia Sotomayor’s opinions on the Second U.S. Circuit Court of Appeals, and one First Amendment case caught our attention. Here’s Goldstein’s summary:

One of her more controversial cases was Pappas v. Giuliani, involving an employee of the New York City Police Department who was terminated from his desk job because, when he received mailings requesting that he make charitable contributions, he responded by mailing back racist and bigoted materials. On appeal, the panel majority held that the NYPD could terminate Pappas for his behavior without violating his First Amendment right to free speech. Sotomayor dissented from the majority’s decision to award summary judgment to the police department. She acknowledged that the speech was “patently offensive, hateful, and insulting,” but cautioned the majority against “gloss[ing] over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives just because it is confronted with speech is does not like.”

In her view, Supreme Court precedent required the court to consider not only the NYPD’s mission and community relations but also that Pappas was neither a policymaker nor a cop on the beat. Moreover, Pappas’s speech was anonymous, “occur[ring] away from the office on [his] own time.” She expressed sympathy for the NYPD’s “concerns about race relations in the community,” which she described as “especially poignant,” but at the same time emphasized that the NYPD had substantially contributed to the problem by disclosing the results of its investigation into the racist mailings to the public. In the end, she concluded, the NYPD’s race relations concerns “are so removed from the effective functioning of the public employer that they cannot prevail over the free speech rights of the public employee.”

We’re not sure where we come down on this particular case, but we like Sotomayor’s instinct to err on the side of protecting speech–an instinct that was a hallmark of “liberal” jurisprudence in the days of the Warren court but really is not anymore.


If President Obama’s first nominee turns out to be an old-style liberal with a reverence for free speech, the country could have done a lot worse.

I was also interested to read that there is concern on the Left that Sotomayor, a Catholic, is not a reliable vote on Roe v. Wade.  I won’t go into my abortion ambivalence here (sufficie it to say that I’m more pro-Life than I was, but less pro-Life than I could be), but I do find it interesting that her own fans are worried.

The easy attack on the 32 words

You can’t read a blog, attend a press conference, read a paper, or even think about Sotomayor without those 32 words popping into your head:

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

Because the remark makes statements about people based on their race and sex, many have reached the obvious conclusion that Sotomayor was being racist and sexist.  Democratic partisans have rushed to her defense by contending that only racists and sexists would find a remark defining people by race and attribute to be, in fact, racist and sexist.  (Clearly, these people have been studying at the Humpty Dumpty school of English:  `When I use a word,’ Humpty Dumpty said in rather a scornful tone, `it means just what I choose it to mean — neither more nor less.’)

But isn’t there a much more obvious, less racially and sexually charged way to read that language, and one that reflects equally poorly on Sotomayor?  Let’s look at the context of her 32 words, as Jake Tapper did:

The larger context of the sentence is Sotomayor addressing former Justice Sandra Day O’Connor’s famous quote that “a wise old man and wise old woman will reach the same conclusion in deciding cases.”

“I am also not so sure that I agree with the statement,” Sotomayor says. “First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

“Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society,” she said. “Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.”

“However, to understand takes time and effort, something that not all people are willing to give,” she continued. “For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”

She went on to say that “each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.”

As you can see, the starting point for this discussion was O’Connor’s race and sex blind statement that “a wise old man and wise old woman will reach the same conclusion in deciding cases.”  (One could argue that this is ageist but, considering that we all hope to attain some degree of age, it’s hard to put a lot of weight behind that argument.)

Sotomayor’s approach to challenging this argument was to wander a little bit through selective judicial  history, and then to launch into discussion about her own race and sex, and her own life and experiences.  Her reference to that incredibly wise Latina woman must be seen in that context.  I’m therefore willing to bet that Sotomayor had not a thought in her head for the Latina saleswoman working in Macys, scrubbing someone’s floors, or doing duty as middle level management in a major American corporation.  This is all about Sotomayor.  In her estimation, she is that wise Latina woman.

In other words, Sotomayor has stumbled across the ultimate in identity politics:  she’s put herself into a victim class of ONE — herself.

As for me, the thought of having someone so self-centered sit in judgment on my case, or on legal issues that will affect me, is terrifying — almost more terrifying than if she was the racist and sexist her detractors claim her to be.

The preview of an Obama court

Are you wondering what an Obama court will look like?  You don’t need to look very far.  If you haven’t yet read Christina Hoff Sommers’ wonderful 1995 book, Who Stole Feminism?: How Women Have Betrayed Women, run out right now and get a copy.

Generally speaking, the book is about the difference between equity feminists (a view held by most Americans who believe that women should get equal treatment under the law and equal work for equal pay) and gender feminists (who have embraced victimhood and who hate men). Hoff Sommers makes compelling arguments about the insanity of the latter approach, and the death of the former.

While every chapter is well worth reading, the one chapter that’s stuck with me almost 15 years later is the one that predicts a Sotomayor/Obama court.  In this chapter (and I don’t have a copy in front of me), Hoff Sommers describes her attendance at a conference for feminist academics — or, more accurately, gender feminist academics.  Before these academics could even get to the business of the conference, they had to get to the even more serious business of putting in proper heirarchical order the various degrees of victimhood represented at the conference.

Even without the book to guide me, I have vivid memories of black feminists duking it out with lesbian feminists who are outraged by the demands made by handicapped hispanic feminists.  Each of these little feminist academic subsets was absolutely certain that its handicap (sex, race, sexual orientation, physical disability, etc.) entitled it to some special regard within the confines of the seminar — and, most certainly, out in the wide world.

You can see the parallels between a viewpoint that claims all attendees are not equal at a conference and all citizens are not all equal under the law.  Inevitability, once such a regime is enshrined, the special interest groups start duking it out over who is the most special.  The end result is people groveling before judges to assert their special victim status, while the judges, certain that they are founts of special wisdom because they have cast off the shackles of the traditional patriarchal legal system, opine from the bench about who is the most pathetic of all.

Nor is this scenario hypothetical or confined merely to the groves of academe.  I’ve worked a long time in the San Francisco Bay Area legal system and can tell you that, once all the white men and corporations have been cast into the dirt (which is already par for the course in many Bay Area courts), the fight is on to determine which group or person is sufficiently pathetic to become the recipient of the court’s identity politics beneficence.  The concept of equality at the law has no place here.  It’s anarchy.

This system is also insanely unreliable.  Although Sotomayor testified before the Senate back in 1998 that the law is meant to be unreliable (a statement I heard her make on the radio, but can’t find now), the fact is that the only good legal system is one that is reliable.

It is impossible for a business or an individual to plan ahead if it or he cannot predict with reasonable certainty what it’s rights are.  How can a bank make a loan if it cannot rely on the loan papers and the law to enforce that debt, but must instead rely on the court’s goodwill?  In a fight between a bank and a business, there’s a 50-50 chance the lender will win, unless of course the debtor business is women or minority (or gay or lesbian) owned.  In a fight between a bank and an individual, since banks are categorically evil, the bank will always lose.

It’s clearly a short term pleasure for the tyrannical activist justice to reach this ruling, but a long term disaster as banks refuse to grant loans and fail.  (Although, with the US owning banks now, I guess that was a lousy hypothetical.  The banks will continue to grant loans and they won’t fail because we, the taxpayers, are clearly stuck with paying for all the bad loans.)  California’s business exodus isn’t simply a result of high taxes; it’s also a result of grossly unfair judicial rulings.  Here are just two examples (and please pardon the poor formatting on the second example, which is a very old post I wrote while still at my Blogger site).

This way lies madness.

Fisking some of the Sotomayor cheering *UPDATED*

The applause from Sotomayor on the Left is, you’ll pardon me for saying, canned.  They know Sotomayor is not a solid judicial candidate, so they’re focusing on the usual race and sex packaging.  The excitement isn’t there.  This is rote identity politics.  A good example is Ruth Marcus’s column applauding Obama’s choice, which I reproduce, not in its entirety, but only with the statements I wanted to fisk:

And yet the arguments for picking Sotomayor were awfully strong. Her life story is compelling in a way that mirrors Obama’s own amazing trajectory: the child of Puerto Ricans, rising from the public housing projects of the Bronx to the pinnacles of the legal profession, overcoming adversity (childhood diabetes, the early death of her father) along the way.  [The standards for a compelling life story keep dropping lower and lower.  Apparently the ingredients are ambition, one missing parent, possible health issues and -- and this is the important one -- minority status, coupled with the correct politics.  As Sally Zelikovsky points out, minority status coupled with the wrong politics is not compelling.  No way.  And as I've pointed out, given that Sotomayor went through Ivy League schools, just as Obama did (and, as with Obama, I'm willing to bet that she got in through affirmative action), and given that she's sucked at the government teat ever since then, her life story is as compelling as a rock.  Also, if I hear the trite phrase "compelling life story" one more time, I'm going to scream.]

She brings an impressive breadth of credentials and experience, from the grittiness of the Manhattan district attorney’s office to the rarefied precincts of intellectual property law to the nuts-and-bolts life of a trial court judge.  [That's meaningless.  I have no idea what Marcus thinks the "rarefied precincts of intellectual property law" are.  I've been there and done that.  Mostly it's a lot of document review.  As for being a trial court judge, the vast percentage before whom I've appeared are either power hungry or activist or idiots, or some combination of all three.  It's not much of a recommendation.]

And the obvious attractions, both symbolic and practical, of having the first African-American president name the first Hispanic to the high court were not lost on Obama. The Sotomayor choice, of course, satisfies an important Democratic Party constituency; if health care and climate change end up eclipsing immigration reform this year, a Hispanic justice can help reduce the grumbling.  [Aha!  Here's the meat behind the pander.  Things aren't going well for Obama, so he's throwing a bone to Hispanics in hopes that he everyone will stop complaining.  Sadly, it will probably work, at least in the short term.]

Since Obama is likely to have more than one high court spot to fill, picking a Hispanic woman for the first vacancy gives him maximum flexibility for the future — maybe even a white Anglo-Saxon Protestant, a somewhat endangered species among the justices.  [At least she's honest.  But given the rubric of identity politics, what kind of WASP does she have in mind?  A lesbian?  A straight female?  Couldn't be a man, of course, no matter how brilliant and admired he is.]


Indeed, Sotomayor’s supposed assertiveness may have been a plus in Obama’s eyes.

“The question for him was, ‘Is this a person who’s got the toughness, the intellectual capacity, to stand up to John Roberts?’ ” said one senior administration official. “He came out of his interview with her on Thursday and said that he had no concerns whatsoever about her intellectual ability to stand up to Roberts.”  [Pretty much tells you what Obama wants in a judge.  He doesn't want the best legal mind.  He wants someone to carry out his agenda, and who is too dumb to back away from a fight with intellects greater than hers.]


I’d also like to hear more from Sotomayor herself about some out-of-court statements — for instance, this from a 2001 speech:

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

A bit of hyperbole in the service of diversity (my guess) or a disturbing bit of identity politics (as the National Journal’s Stuart Taylor sees it). Forgive me, though, if I detect a whiff of sexism in the bully-on-the-bench rap; somehow I doubt that a male judge would be so chided for being firm with litigants.  [So let me see if I understand this:  to defense to a manifestly racist and sexist statement from Sotomayor is to . . . accuse her challengers of being sexist.  Is there no serious argument left in this world?]

Ditto, with a bit of racism thrown in, the barely sourced and inadequately supported suggestion of Sotomayor as an intellectual lightweight. I find it awfully hard to reconcile that with graduating summa cum laude from Princeton.  [Sad to say, I can't get excited about her graduating summa cum laude from Princeton.  For one thing, getting good grades in college is an entirely different skill set from being a quality legal analyst, a fact to which I can personally attest.  A legal brain is a rather unique thing.  If it's allied to an intelligent person, that's great, but not all intelligent people have good legal brains.  The other thing is that the Ivy Leagues and other top private colleges are renowned for grade inflation.  For one thing, since parents are paying through the nose for the privilege of their children attending these schools, the schools want to give bang for the buck, with bang translating, not as a good education, but simply as good grades.  Also, teachers are afraid to give minorities bad grades.  When it comes to these schools, the product is so cheapend, anyone with sense takes its reports with a grain of salt.]

In any event, for all the disparaging of hearings as useless Kabuki, in my experience they’ve served remarkably well in elucidating, for better (David Souter, Roberts) or worse (Clarence Thomas), the nominee’s intellectual capacity and temperament.  [Did I just understand Marcus to rank Souter up with Roberts as an intellectual, while denigrating Thomas?  I'm speechless.  Has she ever read anything these judges have written?  I have.  Roberts is a delightful writer and a first class thinker.  Thomas is a business-like writer and a first class thinker.  Souter is an idiot.]

As to the portrayal of Sotomayor as flaming liberal, I defer to the judgment of Tom Goldstein of the invaluable ScotusBlog:

“There is no question that Sonia Sotomayor would be on the left of this Supreme Court, just not the radical left,” he wrote. “Our surveys of her opinions put her in essentially the same ideological position as Justice Souter.”  [Um, so she's a liberal idiot?  And this is a recommendation?]

Bottom line:  Marcus’ optimism notwithstanding, Sotomayor doesn’t have the chops to make much of a difference on the court.  She is indeed a perfect replacement for Souter, since she’s about his intellectual and ideological equal. Jennifer Rubin explains, though, what’s really going on here, which is a bit more worrisome:

[T]he president is not concerned about an intellectual powerhouse who can lure Justice Kennedy to “his side.” He thinks there will be plenty of time to tip the court with future nominations. He wanted a constituent-pleasing, safe “liberal” vote on the court.

UPDATE: Michelle Malkin just savages the “compelling life story” pabulum.  Is this beautiful, or what?

If Sotomayor were auditioning to be Oprah Winfrey’s fill-in host, I’d understand the over-the-top hyping of her life narrative. But isn’t anybody on Sotomayor’s side the least bit embarrassed by all this liberal condescension?

Do we dare vote against the first Hispanic justice? *UPDATE*

I keep seeing headlines all over the place to the effect that Republican Senators will be afraid to vote against the first proposed Hispanic justice.  This may certainly be true for Senators, who are a weaselly, unprincipled bunch, I suspect, though, that for many voters Obama himself is causing the bloom to depart the identity politics rose.

I believe that many voters rushed to the polls to vote for Obama because they were caught up in the rapture of a historic first:  “The first black President.”  These moments are exciting.  Heck, I desperately wanted Michael Phelps to be the first person to get 10 gold medals in one Olympics.  I’d never heard of Phelps a few months before and suddenly, there I was, screaming hysterically in front of my TV.

In the political arena, the November rapture is now over, and the first black President is proving to be something of a problem.  In national security ways, he’s following the path of the last white president (and, for that, I am grateful).  In other ways, he’s proving to be indecisive, ineffectual, and suspiciously corrupt.  In other words, not withstanding his exciting skin color, he’s just your usual unprepared, inexperienced, Leftist, Chicago-style political hack.

Obama, therefore, is an object lesson in the superficiality of identity politics.  The fact that someone is the right color for the job doesn’t mean that he’s the right person for the job.  Voters — including Hispanic voters who trend conservative on social issues — may finally be willing to look at the candidate and not the color.

UPDATEThe Anchoress has a good post on the reality of how that race/identity card works.