Special offer

To Be or Not To Be - Elena Kagan as Justice of the Supreme Court is the Question

By
Real Estate Technology with Carmody and Associates LLC

Nothing brings out the ideologues like a nomination to fill a vacancy on the US Supreme Court. This is not surprising as the nomination of a Supreme Court Justice is possibly the most important function of the President – and a new Justice will typically sit on the bench for twenty to thirty years or more.  President Obama has had the opportunity to appoint two Associate Justices to the Court so far in his Presidency.  The current vacancy on the Court is the result of the decision of Justice Stevens, 90 years old, to retire from his seat on the Court which he has held since 1975. 

The President has nominated Elena Kagan to replace Justice Stevens.  Ms Kagan has spent her legal career in teaching and in politics.  She has been a teacher at the University of Chicago Law School and has taught and served as Dean of Harvard Law School.  She has served in the Clinton White House as Associate Counsel to the President and serves in the current administration as Solicitor General.  It should also be noted that she served as law clerk for Justice Thurgood Marshall.

Ms Kagan has been criticized for her lack of judicial experience but I note a number of prominent Supreme Court Justices in the last Century – including 3 Chief Justices – have come to the Supreme Court with no prior judicial experience (8 in my lifetime).  (Justice Louis Brandeis, Chief Justice Charles Evans Hughes, Justice Felix Frankfurter, Chief Justice Earl Warren, Justice Abe Fortas, Justice Hugo Black, Justice Lewis Powell, Justice Byron White and Chief Justice William Rehnquist)

Ms Kagan’s academic credentials seem excellent.  She is certainly a liberal – which would be expected for a nominee from this President, but she replaces a Justice who was aligned with the liberal wing of the Court on many issues – so the balance of the Court is not changed significantly… although the replacement of any Justice out of a group of nine will change the personal dynamics of the group.

An item of more concern to me would be the probability that her judicial philosophy might be more governed by her political ideology and her political agenda that has driven her actions for decades.  I hope for a judge or Justice of the Supreme Court to rule based upon law and precedent.  Although I admit to liking the definition of an activist judge as one who makes a decision that I do not like.

I do not like the fact that she banned military recruiters from Harvard Law School while she was Dean.  I like less that when the Supreme Court upheld the right of the government to withhold federal funds from a school that would not permit military recruiters to come on campus, she caved and allowed recruiters back on campus, while encouraging students to protest. 

I will watch the confirmation hearings for some demonstration of her abilities and qualifications – but her eventual confirmation is likely because of the Democrat majorities in the committee and in the full Senate.  I don’t expect the mainstream media to do their job as investigative journalists and there is little paper trail with a nominee that has not been an appellate judge.  I am not aware of anything at this time that will derail this nomination.

Former Speaker of the House, Newt Gingrich has been more vocal in his opposition to Ms Kagan.  Following You-Tube clip is from a recent appearance by Newt at the NRA convention. 

My source: http://www.youtube.com/watch?v=JOVGyhyWNTo&feature=player_embedded

 

Comments (23)

Broker Nick
South Florida Real Estate & Development, Inc. - Coconut Creek, FL
Broker Nick Relocation Broker Service

Congratulations this post is now featured in the Silent Majority Group of Active Rain.

May 17, 2010 01:05 AM
Broker Nick
South Florida Real Estate & Development, Inc. - Coconut Creek, FL
Broker Nick Relocation Broker Service

I would not call someone who banned our military recruiting heroes from Harvard a sacfricial lamb - I call her a communist sympathizer who tried to make a precent in Harvard for the nation - what shall she do in the Supreme Court?

May 17, 2010 01:07 AM
Rob Arnold
Sand Dollar Realty Group, Inc. - Altamonte Springs, FL
Metro Orlando Full Service - Investor Friendly & F

Not sure how being a college professor and a lawyer qualifies you to be a Supreme Court justice.  Of course I'm not sure how it qualifies you to be President either. I agree she is a weak pick for the Supreme Court.  You hate to see someone with this track record getting nominated to the bench.

May 17, 2010 02:13 AM
Mike Frazier
Carousel Realty of Dyer County - Dyersburg, TN
Northwest Tennessee Realtor

It could be worse; Obama picking a nominee to replace a conservative on the bench!

May 17, 2010 03:45 AM
Tchaka Owen
Galleria International Realty - Hollywood, FL

Patrick - Barring something bad that we are not aware of, her nomination is pretty much assured.

Nicholas - You are correct.  The ACLU knew years ago that Obama would beat McCain, even before either was nominated.  And to make it not look like it was intentional, they were asked to wait around a while before retiring.  Kinda like how Roberts and Alito didn't show up until later in the Bush presidency.  Not sure who masterminded that ploy though....likely a modern day Hitler Youth organization.

Ted - I almost wrote you an email last week for your opinion on Kagan and had a feeling you'd have a piece coming out, and I was correct.  Thank you for writing this and as usual I enjoyed the read.  I have a piece that I'm going to dig up and forward to you to see what you think.

 

 

May 17, 2010 07:34 AM
Ted Baker
Carmody and Associates LLC - Winter Haven, FL
MidFloridaMediation.com

It is safe to say that retirement plans from the Supreme Court are made at the time when the Justice feels that the President is likely to select a replacement that is sympathetic with their point of view.  That way their legacy is protected and the ideological makeup of the Court is preserved.  Sometimes unplanned vacancies occur with untimely death or incapacitation of a Justice.  But usually a Justice will hold out for a liberal or conservative administration in power to suit their needs.

Ms Kagan's lack of judicial experience was a problem for me until I looked at the 7 Associate Justices and 3 Chief Justices that have been placed on the Court in the 20th century (as indicated in my article) with no previous time on the Bench.  But her nomination is eerily like the Bush nomination of Harriet Miers which was quickly withdrawn in 2005. She has a thin resume for the Supreme Court and a limited track record of published writings that would illuminate her character and beliefs concerning our legal system and the Constitution.  But, within reason, Presidents should have the power granted to them to pick Supreme Court Justices.  Ms Kagan is bright, well educated in the law and politically active.  I may disagree with some of the positions she has taken, but with the strong Democrat majorities on the committee and in the Senate, I believe she will be confirmed, absent her shooting herself in her own foot in the hearings (unlikely) or something more scandalous coming up (and the media is not looking) during the hearings.  

Tchaka - I will look forward to hearing from you. 

Thanks to all for stopping by.  

May 17, 2010 09:17 AM
Broker Nick
South Florida Real Estate & Development, Inc. - Coconut Creek, FL
Broker Nick Relocation Broker Service

Tchaka - Spoken like a true socialist - without anything to back your thoughts with facts - Ted so rightfully pointed out to you that Supreme Court Justices actually plan their retirement around which President they feel will "match" or exceed their form of view of the Constitution - but again you knew that - you are so much smarter than me - you are so open minded 

May 17, 2010 01:29 PM
Lane Bailey
Century 21 Results Realty - Suwanee, GA
Realtor & Car Guy

The part I find troubling is the White House creating their own packaged "news interviews" because they don't want her to talk to actual press...

May 17, 2010 04:48 PM
Ted Baker
Carmody and Associates LLC - Winter Haven, FL
MidFloridaMediation.com

I think that is just part of the spin process, Lane.  The interview in question was, I believe, merely posted on the White House website.  It wouldn't be as noticeable if the traditional media were doing its job.  I don't blame the White House on this one (and you know I blame them for almost everything else...).

Easy there, Nick and Tchaka - remember I am a mediator now.  I think that is the guy with the white and black stripe shirt and a whistle.    (o:

 

 

 

May 17, 2010 07:23 PM
Broker Nick
South Florida Real Estate & Development, Inc. - Coconut Creek, FL
Broker Nick Relocation Broker Service

Ted - I just want you to know that the subtle attacks from the left - you know the ones who deny the truth and call anyone speaking the truth a radical right winger - I am tired of it - I won't have it any other way especially in Silent Majority.

Silent Majority is a group that welcomes ALL sides - but does not allow lies to go unchecked -

Now having said that - we need to speak the truth with respect - and I sincerely want everyone to know I respect Tchaka's right to say anything he wants to - but when addressing me and stating that what I said is wrong or even deceptive - I take that as an insult and I won't put up with that.

Peace

May 18, 2010 02:22 AM
Tchaka Owen
Galleria International Realty - Hollywood, FL

Nicholas - Having thoughts is better than merely possessing continually misfiring neurons.....I sincerely hope you are able to experience the former one day.

Ted - Ooops.  I see a yellow card coming out.  ;-)

May 18, 2010 06:23 AM
Broker Nick
South Florida Real Estate & Development, Inc. - Coconut Creek, FL
Broker Nick Relocation Broker Service

Tchaka - I sincerely don't care what you think - you views are open before all - your thought process are always based upon social engineering - and that always clouds your mind and judgement.

May 18, 2010 06:28 AM
Tchaka Owen
Galleria International Realty - Hollywood, FL

Nicholas - Regarding #13, I too respect your right to say what you want, even though most of it is junk I will defend your right as an American (and I won't even request proof of citizenship).

If you're going to see as an insult anyone who states that what you've said is wrong, then just make sure that EVERY SINGLE THING YOU EVER SAY is correct.  You do so and no one can accuse you of it.  The smartest minds I know are wrong at times, so how you're going to accomplish that I don't know.  Perhaps it's easier to have a stronger spine and realize that you're not going to be always correct.  The beauty of this country is that you get to make that choice.

May 18, 2010 06:29 AM
Ted Baker
Carmody and Associates LLC - Winter Haven, FL
MidFloridaMediation.com

Referee

 

 

Why is it that I enjoy talking with both of you...just separately.

May 18, 2010 09:03 AM
Jason Sardi
Auto & Home & Life Insurance throughout North Carolina - Charlotte, NC
Your Agent for Life

Well thought out and cited article, Ted.  I enjoy reading you, especially considering we are of differing political ideaologies ... though I almost always learn something and reading you does make me think.

And you look good in the stripes, my man:)

May 18, 2010 10:56 AM
Ted Baker
Carmody and Associates LLC - Winter Haven, FL
MidFloridaMediation.com

Thanks for kind words, Jason.  Dissenting opinions are welcome here.  A rational disagreement makes me think too.

May 18, 2010 11:01 AM
Broker Nick
South Florida Real Estate & Development, Inc. - Coconut Creek, FL
Broker Nick Relocation Broker Service

Thanks Ted - Me thinks I need to go back to school so I can be educated along the lines of socialism to make Tchaka happy. The junk that I say now only seems to make the ones who do not recognize that America is falling into the lines of socialism and economic disaster in the hands of liberalism which has taken over our government.

I like the Federalist Papers - and I do not need the help of some to interpret the document for me - it is very self explanatory -

At least the communist professors in universities can't change that document to conform to their ideology.

May 18, 2010 02:14 PM
Ted Baker
Carmody and Associates LLC - Winter Haven, FL
MidFloridaMediation.com

Well, Nick, that is my central point of my concern and of this blog.  Few have read the Federalist Papers and the Big "Q" Question about Elena Kagan is how she will interpret (aka bend) the Constitution.  There are those who think they can change the Constitution to suit their ideology.  Even my favorite Senate candidate, Marco Rubio in Florida uses the phrase "living, breathing document" to describe the Constitution.  I cringe every time he says it because that is the phrase that most liberal or activist judges use to justify expanding government without, they claim, tampering with the Constitution.  Rubio is actually very conservative in his view of the document, but he continues to use the phrase.  

The argument is that our culture faces technologies and challenges that were not predictable in 1789.  So the interpretation of the Constitution must be elastic enough to deal with the new problems.  Strict constructionists like Justices Thomas and Scalia feel that the words of the Constitution should be read with the plain meaning that was understood by the founders at the time the document was written.  Changes, if necessary must be made by amendment.  

As far as Ms Kagan - I do not know enough to voice an opinion.  I am concerned that she has operated in most of her adult life in a political environment.  I am bothered by some of the items she has written, but in many of those cases she was in a position of advocacy for her employer of the moment.  This is the problem of a appointee with limited judicial experience - in an appellate court position, a judge must confront legal questions and render decisions with written opinions showing a respect for law and precedent.  That sort of record is missing here.  We will see.  There will be some display of her intellect in the confirmation hearings - but she will not be an open book and the answers to the questions we ask may not be apparent until she is confirmed and has served as an Associate Justice for some years.  

May 18, 2010 02:40 PM
Lane Bailey
Century 21 Results Realty - Suwanee, GA
Realtor & Car Guy

Ted, the interview was not only posted on the White House website, but conducted by a White House staffer and shot by an official videographer in a White house studio.  It was literally created by the White House... at the same time, they are keeping her away from actual reporters.  Of course, the President is avoiding questions as well...

CBS News

May 18, 2010 03:22 PM
Broker Nick
South Florida Real Estate & Development, Inc. - Coconut Creek, FL
Broker Nick Relocation Broker Service

The propaganda machine is at work - where are all the bleeding heart liberals complaining about the lack of transperency from this President like they do with Bush.

Now that our freedoms are actually being taken away - there is much silence from them because they don't mind when their freedom is taken away as long as it is done by liberals -

May 19, 2010 03:28 AM