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Considering Kagan

Every so often, I make my fellow Conservatives angry at me. Sometimes because I lack tact in how I put things, and sometimes because I see things differently. The fact is, from where I sit, most conservatives think as individuals while liberals are more prone to group-think. One good example of this is the 2005 controversy over the nomination of White House Counsel Harriet Miers to the Supreme Court by President George W. Bush. Like Solicitor General Elena Kagan, Miers' resume and credentials as a potential SCOTUS Justice seemed thin and dubious for someone whose decisions could direct the nation's course more than any elected official, but where Democrats and Liberals have so far been supportive of Kagan simply because Obama nominated her, Republicans and Conservatives harshly criticized Miers' credentials and forced her withdrawal before even one minute of confirmation hearings. At the time, this behavior by radicals was offensive to me, and I still believe it contributed to a split in the party which led, among other things, to the Republican-led Congress abandoning the President and the public rejecting the GOP as the rightful leader of the government. Not because people rejected Conservative principles, but because true Conservatives do not launch character assassinations and sabotage their own party for personal gain, as happened in the Miers' nomination controversy. This does not mean that Harriet Miers was qualified to serve on the United States Supreme Court, but she deserved her nomination to be considered and addressed on her merits, not according to whether she knelt at the altar of political correctness, even on the Right. I warned at the time that the behavior of Conservatives was in contrast to their own stated standards, and even after Mier's withdrawal and Alito became the new nominee, it became clear that hard-liners intended desired to continue punishing the less-than-pure. Even as they handed the Left a weapon that cost them Congress a year later, and the White House in the next Presidential election.

So, what does an old ugly incident from 2005 have to do with Elena Kagan's nomination? The same forces and bigotries are in play, but this time the Conservatives need to be careful in their evaluation of Kagan's qualifications, because an objective, reasoned examination could be very helpful, not only in countering President Obama but also in demonstrating a much-needed maturity in Congress, but the same old pettiness and sniping that has defined the party in the past five years would send a signal to America that electing Republicans and Conservatives would not be a solution to the mistakes and blunders of Democrats and Liberals since 2006. The chances of Democrats and the Left remaining in control of Congress rise strongly if Republicans and Conservatives play into the caricatures the media has already cast for them. As bloggers, we have a responsibility for careful consideration of our own tactics and methods:

It is not right to mock Solicitor Kagan on the basis of her appearance.

It is not right nor is it valid to bring up allegations of personal sexual orientation or possible behavior outside mainstream expectations (for crying out loud, has everyone forgotten how the Left cast Justice Thomas during his confirmation hearings?)

It is not right nor helpful to begin examination of Solicitor General Kagan as an enemy from the beginning.

While I agree that there is reason to be suspicious of Kagan simply because of Obama's class of friends and colleagues, the only course any Conservative should consider is to maintain objectivity and to seek and discuss Kagan's actual paper trail, statements in public and her responses to key issues that would come up in her potential role as a Justice. Kagan's writings as editor of "The Princetonian" would be useful and valid, as would her articles at the "Harvard Law Review". It would be helpful to know her opinions, in detail, of Abner Mikva, for whom she was a law clerk, and of Thurgood Marshall, for whom she also served as a law clerk. Since Kagan was on the faculty at the University of Chicago Law School , it is likely that this is where she first met Barack Obama, although we need more evidence on that point. It may also be helpful to learn Kagan's reactions to the Senate Judiciary Committee's decision not to hold hearings on her nomination by President Clinton in 1999 to the U.S. Court of Appeals, and any documents that committee may have reviewed. In short, while Kagan has never served as a judge, there are documents which could establish reasonable estimates of Kagan's judicial foundation and judgment. She should be judged on those documents, her answers to the confirmation committee in context of her experience and constitutional comprehension, but never on any subjective or petty tactic. There is even more at stake than may be apparent to Conservatives.


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Comments (29)

Kagen is a lesbian radical ... (Below threshold)

Kagen is a lesbian radical marxist Obama brown noser who will do anything to keep the Won's agenda alive.

Harriet Myers makes Kagen look like an 8th grader when it comes to experience for the bench and she was shoved aside by Republicans.

Kangan must be filibustered.

Wow TexBob, I think that ma... (Below threshold)
DJ Drummond:

Wow TexBob, I think that may be a record. In three sentences, you misspelled Kagan's name three times and even got Miers' name wrong.

I don't think many folks ar... (Below threshold)
Baron Von Ottomatic:

I don't think many folks are judging Kagan on her appearance. Guilty as charged when it comes to getting the goof train rolling on her looks, but bomb-throwing is the norm in political discourse now-a-days.

Considering the stakes on SCOTUS appointments anything Conservatives can do to ensure the most conservative possible nominee possible is fair game by me.

Google Robert Bork...

Judicial appointments may have been the final nail in the coffin, but the relentless media drumbeat of Republican corruption, Republicans spending like Democrats, and war fatigue were the real drivers of the 2006 & 2008 whitewashes.

People just forgot how bad the Dems really are...at least until Democrats attained virtually unlimited power.

When I look for conservativ... (Below threshold)
James H:

When I look for conservative critiques of judicial nominees (by Democrats or Republicans), I turn to the Volokh Conspiracy, a blog that's home to a dozen or more scary-smart libertarian/conservative law professors.

So far, theyv'e suggested that there's quite a bit of substance to Kagan.

Obama nominated Kagan. I th... (Below threshold)
Ken Hahn:

Obama nominated Kagan. I think that is enough to convince me to oppose her unless I am convinced otherwise. While I am willing to be convinced that she should be supported, I'm not willing to be convinced that as long as I oppose her I should not oppose her vigorously.

She's a left wing fanatic. Until I see some evidence to the contrary I will approach her nomination in that way.

I linked Doug Ross in the s... (Below threshold)

I linked Doug Ross in the signature block, he has a Readers Digest version of Kagan's thesis.

Since she has no qualifications... since she has never served as a judge... since she's been a manager and expressed anti-military sentiments...

she's been nominated to the post to uphold BHO 's radical agenda... period.


Aren't you sick of getting Borked? Aren't you tired of getting bullied with Global Warming bills, Stimulus bills, Socialized MEdicine? This is a WAR FOR THE FUTURE OF THE COUNTRY!


I agree to a small degree, ... (Below threshold)
DJ Drummond:

I agree to a small degree, Ken. But consider this scenario, bearing in mind how Ronald Reagan nominated Justice O'Connor and we all know how that turned out:

1. Barack Obama nominated Kagan. Consider how well he knew his other nominees, and ask yourself how much thought President Photo Op put in to that decision, given his track record?

2. Kagan's short record already has a few interesting blips, like supporting Conservative participation in the Harvard Law review, and abortion positions that are quite possibly in conflict with nominal liberal positions.

3. Lack of a record can mean all kinds of surprises. Maybe Kagan is better than what we'd get from someone Obama knew better?

THings to think about.

Or maybe this was all plann... (Below threshold)

Or maybe this was all planned out by the two of them years ago, and her few pearls scattered to the swine to confuse them are feints to lull us into complacency.

Gads, who knows. But if she's rejected her socialist tendencies, she has not made a big pronouncement about this I've seen anywhere. The times she's taken a stand on things in her recent past, well, they don't look pretty to me. The attempts to bring some balance to Harvard Law faculty is interesting. I don't think you can draw a lot of conclusions other than she's not stupid.

Looking at the kind of folks the President has put into key (and not so key) positions, she's suspect from the start.

I would feel a lot happier with her as President and him as a SCJ than the other way around.

Interesting article, DJ. An... (Below threshold)

Interesting article, DJ. And your admonitions against cheap shots at Kagan is wise in the long run. But why are these cheap shots being taken in the first place REALLY? Even on the cover of Murdoch's New Wall Street Journal? ("Even!" Yeah, right!)

It's because Kagan is supportive of many of the draconian "conservative" PATRIOT Act protocols and 9/11 traditions beloved of the political right and center of both parties. This is a supposed "conservative" stance. Definitely common within the Republican caucus
No target of opportunity there!

SO! The pix and giggles and innuendos. Which are lobbed from the batteries of the culture war regiment. The bedroom police. The busybodies. Plus some P.O.'d auxiliaries (read Security Hawks cloaked in vestments and choir gowns; in case they get busted they have bogus Domino's receipts in pocket, too).

Personally, if similitude hits the funny bone, oh well! Kagan will live. For a woman her age to unmarried, her self-esteem is pretty granite-like.

As for Miers: that WAS a joke. W's bookeeper and Christmas card facilitator? No. Or she would have went down in flames 15-85, give or take 5 or 6 of Bush's friends who would abstain rather than insult him.

I share your lack of tact i... (Below threshold)

I share your lack of tact in order to get to the truth...Meaning, this isn't personal:

In sole consideration for the instructions our Founding Fathers gave us, Meirs and Sotomayor were EVERYTHING they told us not to confirm and NOTHING they told us to confirm.

Therefore, you not only don't agree with other Conservatives but, you don't agree with our Founding Fathers which makes YOU the radical!

What you call "hardliners" are the party of Know, not the party of No.

Get it? Got it? Gooood.

Will the Senate see ... (Below threshold)

Will the Senate see Kagan's long paper trail?

Read more at the Washington Examiner: http://www.washingtonexaminer.com/politics/Will-the-Senate-see-Kagan_Ss-long-paper-trail_-93725434.html#ixzz0o3tzvLgH

Such depressing comments. W... (Below threshold)

Such depressing comments. We got nothing.

D.J. was exactly correct, i... (Below threshold)
Jim Addison:

D.J. was exactly correct, in the case of Miers and now. Remember who led the charge against Miers: David Frum, who had been a junior speechwriter in the White House when she first joined the Counsel's office. It always seemed there was a personal agenda on Frum's part in that, taking vengeance for some undisclosed and perhaps imagined slight. Now, Miers may well have failed the examination, but she surely deserved a hearing.

As concerns judicial experience, there is no real tradition on that. Many justices found their first bench at the highest court in the land over the years. Some turned in strong records, others weak - just as those with judicial experience did.

So we now have Kagan. I have no doubt she is at least sympathetic to socialism, and adheres to most of the false doctrine of the Left. If she didn't, she wouldn't be SG and nominated for SCOTUS.

But those who are screaming for a filibuster are being very short sighted. First of all, we do not have the votes. Snowe, Collins, and Brown at the least would not participate, and we don't have any margin for error at all.

Secondly, if you look at Obama's "short list," with the possible exception of Garland, they are all a bunch of known far leftists. If by some miracle we filibustered Kagan, you know Obama would send up Wood or Thomas left, understanding it would be almost impossible to mount two successful filibusters in a row.

So she is about as good as we could and can expect from Obama. Since he will get at least one more nomination before his term and America's suffering therefrom are mercifully ended, we should save our powder to try and block a worse choice (which shall surely come).

This is not to say anyone should vote to confirm her. That deference to the President for which we long argued, and lived up to with Breyer and Ginsburg and Sotomayor, has been repudiated by Democrats repeatedly - Obama himself voted against both Roberts and Alito, both of whom were far more qualified than any Democratic nominee to the Court in my lifetime.

It's time we stopped playing softball while allowing them to throw spitballs.

No, DJ. That's not it at al... (Below threshold)

No, DJ. That's not it at all.

We oppose Kagan simply because she was nominated by a black liberal president. The same reason we reflexively obstruct everything else Obama does to help our country.

Or so I've read. Oh, sure, we put all kinds of fancy arguments around it, but that's just window dressing. The REAL reason is deep-seated racism.

Isn't it?

Later: Looks like ... (Below threshold)


Looks like I'd better back off on the sarcasm for a while.

NO KAGAN. ... (Below threshold)


"" ... for crying out loud,... (Below threshold)

"" ... for crying out loud, has everyone forgotten how the Left cast Justice Thomas during his confirmation hearings?""

For crying out loud (to borrow the recently coined phrase of an obvious literary [also] genius) has anyone the gall to dare compare a man of then Mr Thomas's impeccable moral integrity and/or of Justice Thomas's well demonstrated towering intellect and judicial achievement with yet another of the Left's long list of un-and-anti-American activist "Democratic" potty deviates?

Elena Kagan's sexual prefer... (Below threshold)

Elena Kagan's sexual preference is an legitimate issue. The White House made it an issue. The Obama White House asserted, most likely to placate their base, that Kagan was heterosexual.

If the White House an go there, then so can the public. If the White House is lying about Kagan's sexuality, what else are they lying about?

Come on folks. Get a life.... (Below threshold)
retired military:

Come on folks. Get a life.

Liberals beat republicans over the head about anything and everything.
The latest example is the oil leak in the gulf is Bush and Cheney's fault.

The left's absurb allegations are treated with the highest of respect by the MSM and the trolls here.

Yet we cant have a lighthearted joking thread about Kagan having a similar appearance than Tiny Tim.

As for her sexual preference, as usual, the left is the one who plays that gay card (or not gay card in this case). Most conservatives IMO could care less as long as her sexual preferences, whatever they are, dont influence her applying the Constititon to judicial cases. Since she is a liberal the way the wind blows and the phase of the moon affects how she decides judicial cases more so than the constitution.

Give me a break. It isnt like we make decisions based on her looks. We had 8 years of "Chimpy Bush" and you heard not word of protest from folks like James H., Lee Ward, BryanD, etc. And the libs were a lot more serious in the comparision of Bush and a chimp than we are with Kagan to Tiny TIm.

Now at least one is up in arms over this.

As a liberal friend of mine put it concering politicial correctness, "It's the p*ssyficiation of America".

In short, recognize humor for what it is and use it for what it was meant to be.


BTW who else does Kagan loo... (Below threshold)
retired military:

BTW who else does Kagan look a little bit like?


Chaz Bono.

Though Tiny Tim is a lot closer.

I really don't give a damn ... (Below threshold)

I really don't give a damn if she's queer and looks weird.

What tweaks me is that she's a fellow traveler with the (P)resident. Getting rid of him in 4 years? No problem.

Lifetime appointment for her to screw up the US with her beliefs? Somewhat more difficult to remove but not impossible.

Simple solution, stop her nomination with facts.

Gmac"Simple soluti... (Below threshold)
retired military:


"Simple solution, stop her nomination with facts"

The trouble is that only works with stopping conservative nominees to SCOTUS.

It doesnt work with liberal nominees. Especially since the press is going to be in full CYA mode with her ass being the one that is being covered.

In short, I think she could have a 10 year old come forward and claim an affair with video proof and she would still get appointed. The dems know they are going to get shellacked in Nov. they have no reason not to appoint her.

THANK YOU for making your "... (Below threshold)

THANK YOU for making your "it's not right" point, D.J. It drives me CRAZY when a person, most often a woman, is criticized for her (or his) appearance instead of her (or his) position.

The Republicans have taken ... (Below threshold)
Adrian Browne:

The Republicans have taken what could have been a valuable discussion about History and Law and turned it into The-Howard-Stern-Minus-Any-Humor-Show.

I'm pretty sure the comment... (Below threshold)

I'm pretty sure the comments about Kagan's appearance aren't intended to persuade anybody, and anyone capable of being persuaded for or against this nominee solely based on such comments is hopeless anyway.

I understand why people are asking us not to make fun of the guy's looks, but I think you're overinterpreting. Me, I don't care whether Kagan is confirmed or not -- in substance this nomination is so much like the ill-conceived Miers nomination that I'm almost hoping it goes through.

<a href="http://www.brutall... (Below threshold)

Morgan Freeberg has left an answer for the critics of my ealier post worth pondering.

Nothing will be learned in ... (Below threshold)

Nothing will be learned in the confirmation hearings just like during Barrys 2 year "not present" campaign. Just another charade to get a liberal activist on the court and screw with our lives.

Adriane"The Republ... (Below threshold)
retired military:


"The Republicans have taken what could have been a valuable discussion about History and Law and turned it into The-Howard-Stern-Minus-Any-Humor-Show. "

Something that the liberals are masters at and do all the time.

The only trouble is liberals can only laugh at what they deem to be funny and cant stand it when the joke is on them. Then they pull out the race card, the gay card, the victim card, the "It's not fair" card, the "It's for the children card" and the "It's not mature" card.

Stick a sock in it. Preferably a smelly one. At least what comes out of your mouth may smell better.

Listen to "Kagan Botches Or... (Below threshold)

Listen to "Kagan Botches Oral Argument In Supreme Court Appearance At Citizens United Lawsuit" at Real Clear Politics.


She really shows her lack of experience here.

She's a radical socialist who should not be seated period.






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