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Kagan milquetoast court nominee
by Jake Highton
May 22, 2010 | 746 views | 0 0 comments | 11 11 recommendations | email to a friend | print
The trouble with Elena Kagan is that she is a lawyer. Indeed, one big trouble with the Supreme Court justices is that they are all lawyers.

What the court needs is a labor leader, a man or a woman who understands what work is. The court’s lawyers constantly issue pro-business decisions. They often have done so throughout history, notably during the 1930s when the court systematically struck down the New Deal.

The court also needs a woman like writer Barbara Ehrenreich who went undercover to point out that she needed three jobs, all low-paying, to buy food and pay the rent.

Kagan, nominated to the court by President Barack Obama, is bright as you would expect of a Harvard law school grad and dean.

But she is an Ivy Leaguer, like the rest of the court, with little understanding of how most people live. (Harvard leads Yale on the court, 5-3. Kagan’s confirmation would make it 6-3.)

To paraphrase the Bill Buckley quip, better to have Supreme Court decisions made by the first 100 people listed in the Boston phone directory than by Harvardites.

Kagan thinks like a lawyer: prudent, cautious and convervative. She is a careerist, a calculator, figuring how to get to the top of Disraeli’s greasy pole. She often suffers “amnesia,” declaring that she does not “recall ever expressing an opinion” on many controversies.

Her record indicates little passion about anything except the notorious military bias against gays and lesbians. She called the don’t ask, don’t tell policy “a profound wrong, a moral injustice.” (The fact that Kagan is a lesbian probably accounts for her justified outrage.)

Above all else, Kagan is confirmable. That’s why Obama appointed her. He could have chosen people like Laurence Tribe, Harvard law professor, but he’s too liberal. Or he could have picked Stephen Reinhardt of the 9th Circuit in San Francisco, the best U.S. appeals court judge in America. But he is too progressive.

Obama, too, is a lawyer. Pragmatic. Which means conservative. He plays it safe. He settles for the passable rather than the best.

Yet the point must be made again and again: You can never tell about a nominee. Once on the court justices are independent. They are not beholden to anyone.

President Teddy Roosevelt picked Oliver Wendell Holmes because he thought Holmes favored his trust-busting campaign. Holmes quickly disabused him.

FDR chose Felix Frankfurter because Frankfurter had fought the good liberal fight for Sacco-Vanzetti. On the court Frankfurter became a conservative.

Republican President Dwight Eisenhower picked Earl Warren and Bill Brennan. Ike ruefully said later that they were the only two mistakes he made as president.

Conservative Repub-lican presidents appointed John Paul Stevens and David Souter but as justices they drifted to liberalism.

Nevertheless, Kagan’s public positions are not encouraging. They carry the musty odor of conservatism. She was a clerk for Justice Thurgood Marshall when the court upheld a school busing fee for poor families.

Marshall vigorously dissented, noting acidly, “The intent of our 14th Amendment was to abolish caste legislation.”

Later Kagan complained that Marshall had “allowed his personal experiences and the knowledge of suffering and deprivation gained from these experiences to guide him.”

But what else logically would guide his jurisprudence? Marshall felt the sting and knew the injustice of black discrimination. He fought valiantly – and historically – against prejudice. He was not an Ivy League lawyer.

Kagan? Her family could afford to send her to elitist and expensive Princeton and abroad to study at Oxford.

As Clinton’s deputy domestic adviser, Kagan backed the bogus reform that kicked off the rolls poor women and single mothers. As dean of Harvard Law School, she had a right-wing agenda for faculty appointments: 25 white men, six white women and one Asian woman.

Several of the hires were prominent in the reactionary Federalist Society. Not one hire was black, Latino or Native American. For three years she was a paid adviser to Goldman Sachs, hedge fund masters of financial legerdemain.

Kagan, in her confirmation hearings to be solicitor general, declared, “There is no constitutional right to same-sex marriage.” In those same hearings she defended the ever-widening domestic and international executive power of the president.

Still, senators for the Party of No will complain that Kagan has no judicial experience. An absurd argument, belied by history. Many justices, including Earl Warren, the greatest U.S. chief justice, never were judges.

But Warren knew instinctively the proper role of the court: “Where there is injustice, we should correct it.” He placed people over property, a concept alien to the retrograde lawyers ruling the Supreme Court today.

Jake Highton teaches journalism at the University of Nevada, Reno. He can be reached at
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