Intro: I'm not entirely sold on Elena Kagan as the next Supreme Court Justice. Frankly, she has some views on the First Amendment with which I have some real problems, namely her take on the Scarcity Principle.
There are some other areas of the law in which, as a traditional liberal (at least as far as jurisprudence goes) I have some genuine beefs with Kagan. For example, she has been a public advocate of indefinite detention without trial for accused terrorists.
For someone who thinks courts should move glacially when it comes to legal paradigms and new technology, she seems to believe that courts can simply invent new legal standards of habeus out of thin air at anytime...
That said, the op-ed piece that appeared in my local fish wrap this morning by Alabama Senator Jeff Sessions was about as intellectually dishonest as it gets.
His first words are all about promising a full and fair hearing for Kagan. Which is true, since neither he, nor his party, will be in charge of those hearings. They are also the last truthful words he writes, even as he does not intend to actually abide by them himself.
I can say this because almost immediately he begins a grotesque distortion of Kagan's record:
Because Kagan's legal record is thin - she has never been a judge and practiced law for only two years - her time at Harvard is especially significant.
Okay Jeffrey... practiced law for only two years? Would that be the two years she's been Solicitor General of the United States (senior practice trial lawyer in government)? The four years she served as Associate White House Counsel in the Clinton Administration? Perhaps it's the three years she spent with Washington D.C. powerhouse firm Williams & Connolly out of law school?
And frankly, Jeffrey, the only reason she is not a sitting judge on the USCA for the D.C. Circuit, is because her nomination by President Clinton in 1999 was spiked when Orin Hatch and you refused to even schedule a hearing for her.
Kagan did not go about these efforts quietly, but led a very public charge. She filed a legal brief in a distant circuit court to challenge the Solomon Amendment. (Requiring schools to allow military recruitment on campus in exchange for federal dollars – ed.)
It is true that, earlier in 2004, the 3rd Circuit Court of Appeals did instruct a lower court to issue an injunction against the Solomon Amendment.
But the circuit court quickly suspended its own ruling before it could take effect to allow the Supreme Court to hear the case. And, even if the ruling hadn't been suspended, the 3rd Circuit lacks jurisdiction over Harvard and its policies.
Jeffrey? You are supposed to be a lawyer, yourself, if I am not mistaken... I am not mistaken am I? Then perhaps you could illuminate the comity with an explanation, to wit: Kagan filed an amicus brief (with about three dozen other lawyers from around the nation) with the court in Rumsfeld v. FAIR, whose original plaintiffs were in the 3rd Circuit. Given that, you do know the difference between an initial plaintiff's complaint and a brief filed in support, don't you?
And yes, if it is a matter of federal law, the ruling in the 3rd most certainly would effect Harvard. Or would you care to explain how federal law in New Jersey might be different from that in Massachusetts?
Support for the troops, and respect for the law, can't be set aside whenever politically convenient.
In one of the most significant positions she's held, Kagan used her authority to hinder - rather than help - the soldiers who fight and die for our freedoms.
Honestly, I think this one may be my favorite... First, Republicans have been living on "politically convenient" support for the troops for the better part of a decade now. That a bolt from the blue did not turn Jeffrey into a pair of smoking loafers on the steps of the Capitol for that bit of turgid hypocrisy is proof of a truly merciful God.
But really, Jeffrey... once again, I, a poor shlub out here in the masses, do not understand. How is it that she "hindered" our fine and brave fighting mans and womans. Are you going to present evidence that she evaded battlefield capture during Operation Anaconda? Was she manning a SCUD missile site out in the vast Iraqi desert?
Or are you honestly positing that Harvard Law students did not know 1. that 9/11 happened, 2. the U.S. was in a de facto state of war in two places, and 3. that these same students, even if they were up on these world affairs, did not know they could sign up for to be Army Mans and Womans themselves...
Besides, recruiting from Harvard Law was basically recruiting for the JAG Corps, and as I recall, Jeffrey, you didn't have a lot of use for JAG lawyers back in the days Abu Ghraib or Bagram...
So, friends and neighbors... there you have it... the ranking minority member of the Senate Judiciary Committee has outed himself as a liar and fraud who has no intention of giving a fair hearing to Kagan.
Really, what this comes down to is the Republicans looking for payback for the Harriet Meirs nomination. You remember her, the Bush Adminstration sycophant lawyer, too loyal to be described as sane, that Republicans couldn't even swallow?
They really want Kagan to be that person for Obama. Someone they mercilessly abuse in public, like the town drunk or the village idiot. Hey, maybe Kagan gets punked, but it's not going to be for a lack of intellectual legal rigor... and that will be the telling difference.
mojo sends
