“No Man’s life liberty or property is safe while the legislature is in session”.

- attributed to NY State Judge Gideon Tucker

Tuesday, May 18, 2010

Borking Kagan?

I vividly recall watching the Bork confirmation hearings in 1995. I was packing for a ski trip while watching, incredulously, as Teddy Kennedy, an unindicted murderer, hounded Robert Bork for imagined sins that bore no resemblance to reality.

Specifically, what is stuck in my mind is Kennedy lambasting Bork for being insensitive in his ruling on a case involving a truck driver, while Bork attempted to teach Kennedy about appellate cases, i.e., the judges on the appellate court were only allowed to rule on those issues on appeal, not the full merits of the entire original case.

Maybe Teddy was busy driving drunk the day that they taught this point in law school.

Now we have Elena Kagan engaging in surreal self-referential cloaking of her legal views.

First, she authored a book in which she opined on the Bork nomination. In a well-written editorial in the Wall Street Journal yesterday, Gordon Crovitz noted that Kagan got the true impact and nature of the Bork hearings all wrong,

"Ms. Kagan disagreed. She wrote that the most notable quality of the Bork hearings "was not the depths to which it occasionally descended, but the heights that it repeatedly reached." She claimed that "senators addressed this complex subject with a degree of seriousness and care not usually present in legislative deliberation."

Really? The most famous comment by a senator was by Ted Kennedy, speaking on the floor just after President Reagan announced the nomination: "Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens."

The standard for dishonest claims against Judge Bork thus established, the hearings became a farce. The daily drill, funded by dozens of liberal lobbying groups, was to take the facts of a case, twist them into a sound bite, then ignore the underlying legal issue. "

Never the less, Kagan must have already begun hedging her bets, because nowhere is there a substantial record of her views on anything of import in the legal field. Somewhere recently, another writer observed that she and Wonderboy both share a rather troubling distinction. As attorneys who taught at major universities, neither published anything of note.

We've finally arrived at a point where lawyers contemplating government jobs, whether elected or appointed, are careful to confine their true beliefs on constitutional matters to themselves and perhaps a few trusted friends. Or private meetings where no obvious cameras are in evidence.

Thus, Kagan is now famously silent on key issues which may come before the court. As Crovitz wrote at the end of his column,

"The lesson that prospective judicial nominees learned was that to avoid public positions that would enable anyone to bork them. The Oxford English Dictionary has defined the verb bork as "to defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way."

The long-term impact of the Bork hearings is that nominees for the highest court are now selected on the basis of how little can be known about their views. This makes Ms. Kagan's erstwhile supporters nervous. As a New York Times editorial said, "Whether by ambitious design or by habit of mind, Ms. Kagan has spent decades carefully husbanding her thoughts and shielding her philosophy from view."

Indeed, Ms. Kagan may not have the courage of her previous convictions on nomination hearings. When she was being confirmed to be solicitor general last year, she was asked about this law-review article.

Ms. Kagan responded that she was "less convinced than I was in 1995 that substantive discussions of legal issues and views, in the context of nomination hearings, provide the great public benefits I suggested." It seems her bork is worse than her bite."

So scared is Kagan of divulging her true beliefs that she even countered her own written work, and, hilariously went on record as now believing that less is more when it comes to learning about a Supreme Court nominee's views.

How's that? We are better served by knowing less about the views of a young lawyer about to be named to a life appointment on the nation's highest court?

Honestly, on that sentiment alone, Kagan should be summarily dismissed from consideration as a shallow idiot, or a complete charlatan seeking to hoodwink the entire nation into nominating her on no relevant basis whatsoever.

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