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	<title>Bookworm Room &#187; Supreme Court</title>
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	<description>Conservatives deal with facts and reach conclusions; liberals have conclusions and sell them as facts.</description>
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		<title>Is the Obama Administration trying for a clean healthcare slate?</title>
		<link>http://www.bookwormroom.com/2011/09/27/is-the-obama-administration-trying-for-a-clean-healthcare-slate/</link>
		<comments>http://www.bookwormroom.com/2011/09/27/is-the-obama-administration-trying-for-a-clean-healthcare-slate/#comments</comments>
		<pubDate>Tue, 27 Sep 2011 16:42:17 +0000</pubDate>
		<dc:creator>Bookworm</dc:creator>
				<category><![CDATA[Health]]></category>
		<category><![CDATA[Obama Care]]></category>
		<category><![CDATA[ObamaCare]]></category>
		<category><![CDATA[Supreme Court]]></category>

		<guid isPermaLink="false">http://www.bookwormroom.com/?p=19247</guid>
		<description><![CDATA[Back in the 40s or 50s, Esquire Magazine, when it was still a magazine for gentleman, published some quite funny, if very risque cartoons.*  One of them showed a gorgeous, voluptuous, obviously purely decorative woman talking on the phone in her apartment.  Behind her is a kitchen piled to the ceiling with dirty dishes.  It [...]]]></description>
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<p>Back in the 40s or 50s, <em>Esquire Magazine</em>, when it was still a magazine for gentleman, published some quite funny, if very risque cartoons.*  One of them showed a gorgeous, voluptuous, obviously purely decorative woman talking on the phone in her apartment.  Behind her is a kitchen piled to the ceiling with dirty dishes.  It is quite obvious that she is on the phone with her milquetoast husband:  &#8220;All is forgiven, Dear.  Come home.  I miss you terribly.&#8221;</p>
<p>That cartoon, which I haven&#8217;t thought about in decades, popped fully formed into my head when I read that the Obama Administration is doing what it can to <a href="http://www.commentarymagazine.com/2011/09/27/obamacare-supreme-court/" target="_blank">hasten a Supreme Court hearing about ObamaCare</a>.  Alana Goodman posits that this rush has a purpose:  &#8220;Maybe they reasoned that Obama would have more time to recover from a SCOTUS decision the June before his election, rather than risking a potential September or October surprise?&#8221;</p>
<p>Goodman shares the same assumption I do, which is that the currently constituted Supreme Court will reverse ObamaCare, probably in its entirety.  If that happens in June, Obama has the perfect campaign strategy:  We tried, our first effort was flawed, we now have a clean slate, so let us try again.  You know we&#8217;ll get it right the second time.  And all I can think about is that old <em>Esquire</em> cartoon.</p>
<p>________________________________</p>
<p>*I hasten to add here that I was not around when <em>Esquire </em>first published these cartoon.  My Dad loved books that gathered together magazine cartoons, and one of the gems he found at Goodwill or St. Vincent de Paul&#8217;s was a collection of <em>Esquire</em> cartoons.  I also inherited from him a lovely book that put together the best cartoons from the old British magazine, <em>Punch</em>.</p>
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		<title>Letting others take down E.J. Dionne, so we don&#8217;t have to</title>
		<link>http://www.bookwormroom.com/2010/05/14/letting-others-take-down-e-j-dionne-so-we-dont-have-to/</link>
		<comments>http://www.bookwormroom.com/2010/05/14/letting-others-take-down-e-j-dionne-so-we-dont-have-to/#comments</comments>
		<pubDate>Fri, 14 May 2010 15:16:40 +0000</pubDate>
		<dc:creator>Bookworm</dc:creator>
				<category><![CDATA[Judges]]></category>
		<category><![CDATA[Elena Kagan]]></category>
		<category><![CDATA[John Roberts]]></category>
		<category><![CDATA[Supreme Court]]></category>

		<guid isPermaLink="false">http://www.bookwormroom.com/?p=11907</guid>
		<description><![CDATA[I read E.J. Dionne&#8217;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 &#8220;and they&#8217;re both homo sapiens.&#8221;)  Fortunately, I was spared that effort when I read both Paul Mirengoff&#8217;s and Ed [...]]]></description>
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<p>I read <a href="http://www.washingtonpost.com/wp-dyn/content/article/2010/05/12/AR2010051203871.html" target="_blank">E.J. Dionne&#8217;s fatuous defense of Kagan in <em>The New Republic</em></a>, and started formulating a response to his superficial argument comparing Kagan to Roberts.  (It was so superficial it almost, but not quite, devolved into &#8220;and they&#8217;re both homo sapiens.&#8221;)  Fortunately, I was spared that effort when I read both <a href="http://www.powerlineblog.com/archives/2010/05/026292.php" target="_blank">Paul Mirengoff&#8217;s</a> and <a href="http://www.nationalreview.com/bench-memos/55568/not-solomonic-wisdom/ed-whelan" target="_blank">Ed Whelan&#8217;s</a> 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.</p>
<p>Bottom line: Kagan&#8217;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 &#8220;they&#8217;re both homo sapiens&#8221; level.</p>
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		<title>Your quote for the day</title>
		<link>http://www.bookwormroom.com/2010/05/12/your-quote-for-the-day/</link>
		<comments>http://www.bookwormroom.com/2010/05/12/your-quote-for-the-day/#comments</comments>
		<pubDate>Wed, 12 May 2010 14:54:49 +0000</pubDate>
		<dc:creator>Bookworm</dc:creator>
				<category><![CDATA[Barack Obama]]></category>
		<category><![CDATA[Judges]]></category>
		<category><![CDATA[Elena Kegan]]></category>
		<category><![CDATA[Mediocrity]]></category>
		<category><![CDATA[Sonia Sotomayor]]></category>
		<category><![CDATA[Supreme Court]]></category>

		<guid isPermaLink="false">http://www.bookwormroom.com/?p=11874</guid>
		<description><![CDATA[J.C. Arenas on the laundry list of qualifications for Obama&#8217;s Supreme Court picks: Obama&#8217;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 [...]]]></description>
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<p>J.C. Arenas on <a href="http://www.americanthinker.com/blog/2010/05/would_someone_please_list_kaga.html" target="_blank">the laundry list of qualifications</a> for Obama&#8217;s Supreme Court picks:</p>
<blockquote><p>Obama&#8217;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.</p>
<p>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.</p>
<p>If this woman has some <em>legitimate</em> qualifications to serve as a Supreme Court Justice, I hope they are presented soon; otherwise I&#8217;m going to have a win a year supply of Laffy Taffy to find a bigger joke.</p></blockquote>
<p>The word &#8220;mediocrity&#8221; springs to mind.  So does the story <a href="http://en.wikipedia.org/wiki/Harrison_Bergeron" target="_blank">Harrison Bergeron</a>.</p>
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		<title>Why Elena Kagan&#8217;s sexual orientation is irrelevant</title>
		<link>http://www.bookwormroom.com/2010/05/11/why-elena-kagans-sexual-orientation-is-irrelevant/</link>
		<comments>http://www.bookwormroom.com/2010/05/11/why-elena-kagans-sexual-orientation-is-irrelevant/#comments</comments>
		<pubDate>Tue, 11 May 2010 16:04:15 +0000</pubDate>
		<dc:creator>Bookworm</dc:creator>
				<category><![CDATA[GBLT]]></category>
		<category><![CDATA[Judges]]></category>
		<category><![CDATA[Elena Kagan]]></category>
		<category><![CDATA[Homosexuality]]></category>
		<category><![CDATA[Lesbian]]></category>
		<category><![CDATA[Progressives]]></category>
		<category><![CDATA[Supreme Court]]></category>

		<guid isPermaLink="false">http://www.bookwormroom.com/?p=11860</guid>
		<description><![CDATA[I know that much is being said amongst both Progressives and Conservatives about Kagan&#8217;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&#8217;s disdain for Kagan&#8217;s decision to keep her private [...]]]></description>
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<p>I know that much is being said amongst both Progressives and Conservatives about Kagan&#8217;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.</p>
<p>Regarding the Progressive&#8217;s disdain for Kagan&#8217;s decision to keep her private life private, I say get out of people&#8217;s bedrooms.  This is Kagan&#8217;s private life we&#8217;re talking about.  She gets to decide how she wants to handle it.  It&#8217;s not for political activists to decide what is best for her, her family, and her significant others and friends.</p>
<p>As for Conservatives, even if Kagan is lesbian, it&#8217;s irrelevant.  What matters is her unabashed Progressivism.  That will control her thinking on whatever issue comes before her, whether it&#8217;s corporate taxes, the death penalty, abortion or gay marriage.  Her decisions will be completely consistent with any other Progressive&#8217;s, regardless of hetero- or homosexuality.  Her bedroom behavior is no one&#8217;s business because her political decisions are affected by her political orientation, not her sexual orientation.</p>
<p>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&#8217;s not the issue with Kagan.  That is, we&#8217;re not arguing whether her sexuality decided her politics.  The fact is that she is now, for whatever reason, a Progressive, and it&#8217;s her politics, not her sex life, that should be under scrutiny.</p>
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		<title>Harvard law professor&#8217;s defense of Kagan doesn&#8217;t hide her anti-military animus</title>
		<link>http://www.bookwormroom.com/2010/05/10/be-wary-of-arguments-by-harvard-lawyers/</link>
		<comments>http://www.bookwormroom.com/2010/05/10/be-wary-of-arguments-by-harvard-lawyers/#comments</comments>
		<pubDate>Tue, 11 May 2010 02:52:20 +0000</pubDate>
		<dc:creator>Bookworm</dc:creator>
				<category><![CDATA[Judges]]></category>
		<category><![CDATA[Military]]></category>
		<category><![CDATA[Elena Kagan]]></category>
		<category><![CDATA[Harvard Law School]]></category>
		<category><![CDATA[Solomon Amendment]]></category>
		<category><![CDATA[Supreme Court]]></category>

		<guid isPermaLink="false">http://www.bookwormroom.com/?p=11852</guid>
		<description><![CDATA[I&#8217;d like to analyze a Harvard&#8217;s law prof&#8217;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&#8217;s approach to the military during her tenure as dean of Harvard Law.  He spells out the facts, which I&#8217;ll accept [...]]]></description>
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<p>I&#8217;d like to analyze a Harvard&#8217;s law prof&#8217;s defense of a Harvard law dean.  The Prof (and ex-dean himself) is Robert Clark, <a href="http://online.wsj.com/article/SB10001424052748703880304575236502953055276.html" target="_blank">who wrote an op-ed in the WSJ</a> defending Supreme Court nominee Elena Kagan&#8217;s approach to the military during her tenure as dean of Harvard Law.  He spells out the facts, which I&#8217;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&#8217;re all Obamas there, I guess.</p>
<p>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&#8217;t signed onto a statement that they didn&#8217;t discriminate:</p>
<blockquote><p>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&#8217;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.</p></blockquote>
<p>(Just FYI, I have a big problem with forcing employers to sign that kind of stuff as a precondition for recruiting.  I don&#8217;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&#8217;re graduates of Hah-vahd Law, one would think they&#8217;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 <em>inform</em> prospective employees what their non-discrimination policies are.  But then again, <a href="http://www.google.com/hostednews/afp/article/ALeqM5hcoyG-Ck3-VwZB7fqpUFXbffoObg" target="_blank">unlike a liberal</a>, I prefer more information, not less.  But back to Clark&#8217;s Kagan narrative. . . .)</p>
<p>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:</p>
<blockquote><p>For years, the U.S. military, because of its &#8220;don&#8217;t ask, don&#8217;t tell&#8221;  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.</p></blockquote>
<p>Eventually, the Air Force, fed up by its second class treatment, challenged Harvard for violating the 1996 Solomon Amendment (which, like &#8220;don&#8217;t ask, don&#8217;t tell,&#8221; passed during a Democratic administration).  That Amendment says that a school can&#8217;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&#8217;.)</p>
<blockquote><p>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 &#8220;prohibits  or in effect prevent&#8221; military recruiting. It credibly threatened to  bring an end to federal funding of all research at the university.</p></blockquote>
<p>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&#8217;s collective body, Harvard Law bowed to Mammon and gave the military a pass on its (Democratically mandated) inability to sign the school&#8217;s (Nanny state) non-discrimination pledge. The liberals, of course, made their usual &#8220;we love the military&#8221; speech, even as they sought to undercut its efficiency.</p>
<blockquote><p>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&#8217;s operating budget.</p>
<p>After much deliberation with the president of Harvard and other university officials, we decided to make  an exception for the military to the school&#8217;s nondiscrimination policy.  At the same time, I, along with many faculty and students, publicly  stated our opposition to the military&#8217;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.</p></blockquote>
<p>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 &#8220;don&#8217;t ask, don&#8217;t tell&#8221; policy &#8212; a policy, I might add, enacted by a Democratic Congress and signed by Bill Clinton, her former employer:</p>
<blockquote><p>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&#8217;s  nondiscrimination policy, stating her objection to &#8220;don&#8217;t ask, don&#8217;t  tell,&#8221; 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.</p></blockquote>
<p>Kagan was not happy with the Solomon Amendment&#8217;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&#8217;s best and brightest during time of war:</p>
<blockquote><p>In November 2004, however, the Third  Circuit Court of Appeals found that the Solomon Amendment infringed  improperly on law schools&#8217; 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.</p></blockquote>
<p>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):</p>
<blockquote><p>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&#8217;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 &#8220;don&#8217;t ask, don&#8217;t tell.&#8221;</p></blockquote>
<p>From this story, Clark reaches what is, to me, a bizarre conclusion (emphasis mine):</p>
<blockquote><p>Outside observers may disagree with the  moral and policy judgments made by those at Harvard Law School. But <strong>it would be very wrong to portray Elena Kagan as hostile to the U.S.  military. Quite the opposite is true</strong>.</p></blockquote>
<p>Do you think Clark&#8217;s conclusion makes sense.  As I read his own words, he is describing a woman who, at every opportunity, tried to block the military &#8212; a military at war &#8212; from having access to people who are presumably the nation&#8217;s top law students.  She did so because she doesn&#8217;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&#8217;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 &#8220;<em>not</em> hostile to the U.S. military&#8221; category?</p>
<p>And while I&#8217;m at it, let me add a few salient facts that Clark conveniently forgot to mention in his little narrative.</p>
<p>First, as Clark&#8217;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, <em>and <a href="http://weeklystandard.com/blogs/anti-military-justice" target="_blank">the emotions hit the wrong target</a></em>:</p>
<blockquote><p>Consider these words in particular from her letters to &#8220;All Members of  the Harvard Law School Community&#8221;: On Oct. 6, 2003, Kagan explained that  she abhorred &#8220;the military&#8217;s discriminatory recruitment policy&#8230;.The  military&#8217;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 &#8212; a moral injustice of the first  order.&#8221; On Sep. 28, 2004: &#8220;&#8230;the military&#8217;s recruitment policy is both  unjust and unwise. The military&#8217;s policy deprives&#8230;&#8221; etc. And on March  7, 2006: &#8220;I hope that many members of the Harvard Law School community  will accept the Court&#8217;s invitation to express their views clearly and  forcefully regarding the military&#8217;s discriminatory employment policy. As  I have said before, I believe that policy is profoundly wrong &#8212; both  unwise and unjust&#8230;,&#8221; etc.</p>
<p>Notice, time and again: &#8220;the  military&#8217;s discriminatory recruitment policy,&#8221; &#8220;the military&#8217;s policy,&#8221;  &#8220;the military&#8217;s recruitment policy,&#8221; &#8220;the military&#8217;s discriminatory  employment policy.&#8221;</p>
<p>But it is not the military&#8217;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 &#8220;military&#8217;s policy.&#8221; 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&#8211;which is more than the  military recruiters whom Kagan sought to ban did.</p></blockquote>
<p>Even liberal commentators, <a href="http://www.thedailybeast.com/blogs-and-stories/2010-05-10/the-problem-with-elena-kagan/2/" target="_blank">most notably Peter Beinart</a>, who deeply disapproves of &#8220;don&#8217;t ask, don&#8217;t tell,&#8221; have recognized that Kagan loaded, aimed, and then shot the wrong target:</p>
<blockquote><p>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.</p></blockquote>
<p>Beinart&#8217;s absolutely right.  He recommends that Kagan apologize, but I don&#8217;t think an apology will cut the mustard with Americans who recognize in her a profound disdain for the military, one that can&#8217;t be swept away with a muttered, &#8220;I&#8217;m sorry I said that.&#8221;</p>
<p>Second, Clark&#8217;s narrative also misses the fact that Kagan didn&#8217;t just complain about the Solomon Amendment &#8212; she acted upon her complaint.  By doing so, as Scott Johnson explains, she proved herself to be <a href="http://www.powerlineblog.com/archives/2010/05/026264.php" target="_blank">in a clear minority as a legal thinker</a> (although comfortably in lockstep with America&#8217;s Ivory Tower elites):</p>
<blockquote><p>When the Supreme Court accepted the Department of Defense&#8217;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 <em>FAIR</em> plaintiffs.</p>
<p>In the brief Dellinger argued that the Solomon Amendment applied only  to schools that specifically prohibited military access on campus, not  to schools&#8217; whose policies simply had the (allegedly) incidental effect  of doing so. Dellinger distinguished the law schools&#8217; contemporary  anti-discrimination policies from Vietnam-era academic anti-military  policies.</p>
<p>Dellinger&#8217;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 <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&amp;vol=000&amp;invol=04-1152">the  Court&#8217;s 8-0 opinion</a> upholding the Solomon Amendment. Even Justice  Stevens rejected it.</p>
<p>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&#8217;s views lie  somewhere outside the mainstream of Supreme Court jurisprudence.</p>
<p>Perhaps the institutional imperatives to which she gave voice as dean  of the Harvard Law School overrode her common sense.  For other  reasons, <a href="http://online.wsj.com/article/SB20001424052702304846504575178390602940072.html">Kagan  has noted</a> she didn&#8217;t write the brief; she merely signed it.</p>
<p>Kagan&#8217;s side decisively lost the <em>FAIR</em> 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.</p></blockquote>
<p>So, not only does Clark&#8217;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.</p>
<p>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&#8217;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 <a href="http://hotair.com/archives/2010/05/10/when-elena-met-antonin-and-anthony/" target="_blank">careless and unprepared</a> when it comes to acting like a lawyer, something worth considering in light of her Supreme Court nomination.)</p>
<p>Although this post touches heavily upon &#8220;don&#8217;t ask, don&#8217;t tell,&#8221; it is not about the merits of that government policy.  It is, instead, about the fact that Kagan&#8217;s defenders will obfuscate the record to hide the fact that, <a href="http://voices.washingtonpost.com/postpartisan/2010/05/elena_kagans_pastel_career.html" target="_blank">as Michael Gerson has said</a>, &#8220;many Americans will find her acts offensive&#8221;:</p>
<blockquote><p>During a pastel career, Kagan made one neon decision &#8212; to <a href="http://www.law.harvard.edu/news/2005/09/20_recruiting.php">ban  military recruiters from the Office of Career Services</a> 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.</p>
<p>I suspect, however, that many Americans will find her actions  offensive &#8212; 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 &#8212; 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.</p></blockquote>
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		<title>Elena Kagan Open Thread *UPDATED*</title>
		<link>http://www.bookwormroom.com/2010/05/10/elena-kagan-open-thread/</link>
		<comments>http://www.bookwormroom.com/2010/05/10/elena-kagan-open-thread/#comments</comments>
		<pubDate>Mon, 10 May 2010 15:43:57 +0000</pubDate>
		<dc:creator>Bookworm</dc:creator>
				<category><![CDATA[Judges]]></category>
		<category><![CDATA[Judicial activism]]></category>
		<category><![CDATA[Elena Kagan]]></category>
		<category><![CDATA[Supreme Court]]></category>

		<guid isPermaLink="false">http://www.bookwormroom.com/?p=11842</guid>
		<description><![CDATA[To no one&#8217;s surprise, Obama nominated Elena Kagan to fill the opening on the Supreme Court.  Many have pointed to the fact that she&#8217;s never served as a judge before as one of the main reasons Obama did so &#8212; she has no paper trail.  Since I have a generally low estimation of judges at [...]]]></description>
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<p>To no one&#8217;s surprise, Obama nominated Elena Kagan to fill the opening on the Supreme Court.  Many have pointed to the fact that she&#8217;s never served as a judge before as one of the main reasons Obama did so &#8212; she has no paper trail.  Since I have a generally low estimation of judges at the best of times, I can&#8217;t see that it&#8217;s too disastrous that she hasn&#8217;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&#8217;t the same.</p>
<p>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.</p>
<p>Funnily enough, the one thing I don&#8217;t carry away when thinking of Kagan is intelligence or, rather, I should say I don&#8217;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.</p>
<p>I&#8217;m sure she will be confirmed &#8212; since she&#8217;s got no record of anything to support <em>not</em> being confirmed &#8212; and I&#8217;m hopeful that the intellectual heft that Roberts, Alito, Scalia and Thomas bring to the court will overwhelm her.</p>
<p><strong><span style="color: #ff0000;">UPDATE</span>:</strong> Jennifer Rubin on <a href="http://www.commentarymagazine.com/blogs/index.php/rubin/292091" target="_blank">the main problem</a> with Kagan&#8217;s activism:</p>
<blockquote><p>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 <em>want</em> the law to be? But the  business of judging is determining what the law<em> is</em>. 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.</p></blockquote>
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		<title>Objection, your honor!  Non-responsive</title>
		<link>http://www.bookwormroom.com/2009/08/03/objection-your-honor-non-responsive/</link>
		<comments>http://www.bookwormroom.com/2009/08/03/objection-your-honor-non-responsive/#comments</comments>
		<pubDate>Mon, 03 Aug 2009 20:30:59 +0000</pubDate>
		<dc:creator>Bookworm</dc:creator>
				<category><![CDATA[Uncategorized]]></category>
		<category><![CDATA[Judges]]></category>
		<category><![CDATA[Robert Gibbs]]></category>
		<category><![CDATA[Supreme Court]]></category>
		<category><![CDATA[Taxes]]></category>

		<guid isPermaLink="false">http://www.bookwormroom.com/?p=7751</guid>
		<description><![CDATA[If you are a young lawyer, struggling to learn what a non-responsive answer really looks like, you can&#8217;t do better than this question-and-answer session between Jake Tapper and Presidential press secretary Robert Gibbs.  If Gibbs were any slicker, he&#8217;d just ooze right out of the room: TAPPER:  Robert, in terms of what Geithner and Summers [...]]]></description>
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<p>If you are a young lawyer, struggling to learn what a non-responsive answer really looks like, you can&#8217;t do better than <a href="http://blogs.abcnews.com/politicalpunch/2009/08/todays-qs-for-os-wh-832009.html" target="_blank">this question-and-answer session</a> between Jake Tapper and Presidential press secretary Robert Gibbs.  If Gibbs were any slicker, he&#8217;d just ooze right out of the room:</p>
<blockquote><p><em>TAPPER:  Robert, in terms of what Geithner and Summers had to say yesterday [stating on the Sunday news shows that there would be middle class tax increases, talk the Gibbs said was "hypothetical"], it really wasn&#8217;t too much of a hypothetical back-and- forth.  It was about do they think it&#8217;s possible to do deficit reduction.  But that&#8217;s not&#8230;</em></p>
<p><strong>GIBBS:  Well, we can quibble about whether the word &#8220;possible&#8221; or the word &#8220;hypothetical&#8221;&#8230;</strong></p>
<p><em>TAPPER: Is it possible to do everything the president wants to do without increasing revenues from the middle class?</em></p>
<p><strong>GIBBS:  Right.  And I want to just state again clearly here that the president has made a very clear commitment to not raise taxes on middle-class families&#8230;</strong></p>
<p><em>TAPPER:  But economists, including the president&#8217;s own economists, don&#8217;t necessarily think that it&#8217;s possible to do so without raising taxes on the middle class.  How is that dealing candidly with the American people?</em></p>
<p><strong>GIBBS:  Well, again, there are a series of things that have to be done.  I think you&#8217;ll actually hear an announcement from Treasury later this afternoon about how much money has to be borrowed versus what they thought was going to have to be borrowed and what will have to be borrowed as a result of financial stabilization in terms of cutting the amount of money that&#8217;s needed. Again, I think the president has been clear on this.  The first thing that we can do &#8212; the most important thing that we can do right now is get our economy growing again.  We know that the deficit &#8212; part of the reason that the deficit is up right now is that the economy has slowed down so much that tax revenues, because this is what happens in an economic slowdown, have regressed a lot. I think the president &#8212; obviously, we&#8217;re going to have to make some decisions down the road on some of the president&#8217;s legislative priorities and some of the things that Congress wants to do, to evaluate how we move back towards &#8212; on a path toward fiscal sustainability.</strong></p></blockquote>
<p>Most transparent presidency &#8212; evah!  Yeah, right.</p>
<p>The administration does win the award, however, for the most weasely press secretary, that&#8217;s for darn certain.  I don&#8217;t blame Gibbs, though.  He&#8217;s tasked with being the messenger whose job description requires him to hide a message so un-palatable and so at odds with prior promises that he can nothing but engage in meaningless prevarication.</p>
<p>As you may recall, I once wrote that liberal Supreme Court justices tend to be incredibly boring, long-winded, obfusctatory writers, while conservative Supreme Court justices tend to be clear, and often charming, or exciting, writers.  As a young lawyer, I thought it was just a coincidence that liberals were bad writers and conservative good writers.  I&#8217;ve since realized, of course, that bad thoughts make for bad writing.  It takes a lot of explanation to justify a bad idea, and a lot of smoke to cover just how bad it is.</p>
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		<title>Roe v Wade a warning about Supreme Court involvement in gay marriage</title>
		<link>http://www.bookwormroom.com/2009/08/03/roe-v-wade-a-warning-about-supreme-court-involvement-in-gay-marriage/</link>
		<comments>http://www.bookwormroom.com/2009/08/03/roe-v-wade-a-warning-about-supreme-court-involvement-in-gay-marriage/#comments</comments>
		<pubDate>Mon, 03 Aug 2009 15:46:48 +0000</pubDate>
		<dc:creator>Bookworm</dc:creator>
				<category><![CDATA[Abortion]]></category>
		<category><![CDATA[Gay marriage]]></category>
		<category><![CDATA[Judges]]></category>
		<category><![CDATA[Judicial activism]]></category>
		<category><![CDATA[Supreme Court]]></category>

		<guid isPermaLink="false">http://www.bookwormroom.com/?p=7740</guid>
		<description><![CDATA[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 [...]]]></description>
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<p>Whether you are for or against gay marriage, <a href="http://online.wsj.com/article/SB10001424052970204619004574322084279548434.html#mod=rss_opinion_main" target="_blank">Robert George issues a sound warning</a> about the dangers that flow from letting the Supreme Court get its hands on the issue:</p>
<blockquote><p>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 <em>Roe v. Wade</em>: namely, trying to remove a morally charged policy issue from the forums of democratic deliberation and resolve it according to their personal lights.</p>
<p>Even many supporters of legal abortion now consider <em>Roe </em>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.</p>
<p>By short-circuiting the democratic process, <em>Roe </em>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 <em>Roe </em>would deepen the culture war and prolong it indefinitely.</p></blockquote>
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		<title>Wise Latina in on the Supreme Court</title>
		<link>http://www.bookwormroom.com/2009/07/17/wise-latina-in-on-the-supreme-court/</link>
		<comments>http://www.bookwormroom.com/2009/07/17/wise-latina-in-on-the-supreme-court/#comments</comments>
		<pubDate>Fri, 17 Jul 2009 20:25:20 +0000</pubDate>
		<dc:creator>Bookworm</dc:creator>
				<category><![CDATA[Judges]]></category>
		<category><![CDATA[RINOs]]></category>
		<category><![CDATA[Sonia Sotomayor]]></category>
		<category><![CDATA[Supreme Court]]></category>

		<guid isPermaLink="false">http://www.bookwormroom.com/?p=7441</guid>
		<description><![CDATA[It was a foregone conclusion, but it&#8217;s still irksome that the RINOs piled on for Sotomayor.  It&#8217;s not just that she&#8217;s a judicial activist who dislikes self-defense, lies about her record, and shilled for a radical Puerto Rican group.  It&#8217;s that the hearings showed something very, very specific about her:  she&#8217;s a complete mediocrity.  The [...]]]></description>
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<p>It was a foregone conclusion, but it&#8217;s still irksome that <a href="http://hotair.com/archives/2009/07/17/wise-latina-wise-enough-for-three-gop-yes-votes-so-far/" target="_blank">the RINOs piled on for Sotomayor</a>.  It&#8217;s not just that she&#8217;s a judicial activist who dislikes self-defense, lies about her record, and shilled for a radical Puerto Rican group.  It&#8217;s that the hearings showed something very, very specific about her:  she&#8217;s a complete mediocrity.  The woman is as dumb as a somewhat smart post.  She&#8217;s a slow thinker.  She&#8217;s uninformed.  She&#8217;s a tribute, not to brains and hard work, but to affirmative action.</p>
<p>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&#8217;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.</p>
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		<title>Only I can own me! &#8212; by guest blogger Danny Lemieux</title>
		<link>http://www.bookwormroom.com/2009/07/16/only-i-can-own-me-by-guest-blogger-danny-lemieux/</link>
		<comments>http://www.bookwormroom.com/2009/07/16/only-i-can-own-me-by-guest-blogger-danny-lemieux/#comments</comments>
		<pubDate>Thu, 16 Jul 2009 20:22:43 +0000</pubDate>
		<dc:creator>Bookworm</dc:creator>
				<category><![CDATA[Freedom]]></category>
		<category><![CDATA[Judges]]></category>
		<category><![CDATA[Constitution]]></category>
		<category><![CDATA[Liberty]]></category>
		<category><![CDATA[Self Defense]]></category>
		<category><![CDATA[Sonia Sotamayor]]></category>
		<category><![CDATA[Supreme Court]]></category>

		<guid isPermaLink="false">http://www.bookwormroom.com/?p=7423</guid>
		<description><![CDATA[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 [...]]]></description>
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<p><a href="http://hotairpundit.blogspot.com/2009/07/tom-coburn-questions-sonia-sotomayor-on.html" target="_blank">This clip of today’s Sotomayor hearings</a> may just have hit upon the most important constitutional question that faces us all as we confront our devolution into the Obamatopian State.</p>
<p>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.</p>
<p>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”.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
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