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First and foremost, any nominee to a lifetime appointment to the United States Supreme Court must demonstrate a thorough fidelity to apply the Constitution as it was written, rather than as they would like to rewrite it.
~ Ed Meese
Regarding President Obama’s nominee to the Supreme Court, Elena Kagan, a former dean of Harvard Law School and current solicitor general, Ed Meese, a former attorney general under President Reagan wrote the above requirement for any nominee to SCOTUS on Heritage Foundation’s Morning Bell, which was reprinted at NationalReview.com.
Senators must conduct a more searching inquiry to determine if Kagan will decide cases based upon what is required by the Constitution as it is actually written, or whether she will rule based upon her own policy preferences.
Though Ms. Kagan has not written extensively on the role of a judge, the little she has written is troubling. In a law review article, she expressed agreement with the idea that the Court primarily exists to look out for the “despised and disadvantaged.” The problem with this view – which sounds remarkably similar to President Obama’s frequent appeals to judge’s ruling on grounds other than law – is that it allows judges to favor whichever particular client they view as “despised and disadvantaged.” The judiciary is not to favor any one particular group, but to secure justice equally for all through impartial application of the Constitution and laws. Senators should vigorously question Ms. Kagan about such statements to determine whether she is truly committed to the rule of law. Nothing less should be expected from anyone appointed to a life-tenured position as one of the final arbiters of justice in our country.
Kagan’s educational and professional biography reveals disturbing associations with some of the country’s best-known leftist radicals and judicial activists, including Bill Clinton, President Barack Obama (the most leftist president in American history) and liberal activist judges Abner Mikva and Thurgood Marshall, whom Kagan clerked for in 1987 and 1988, respectively.
In a 1993 law review article eulogizing Marshall, Kagan called her legal idol the greatest lawyer of the 20th century. In that same University of Chicago law review article, titled “Regulation of Hate Speech and Pornography after R.A.V.,” Kagan’s shameless fawning over Justice Marshall’s civil-rights and judicial legacy amounted to hagiography. Kagan suggested that if she were a judge she would follow Marshall’s view that the Constitution should be interpreted expansively to provide rigorous protections for the “despised and disadvantaged.” This amounts to putting liberal “social justice” (Marxist class warfare) above “equal justice,” which ipso facto is blind to race, class, sex or economic standing.
Kagan agreed with Justice Marshall’s progressive pragmatic jurisprudence that justice isn’t merely blind, but judges must be activist and consider “the way in which law acted on people’s lives.”
Later Kagan, quoting Marshall, wrote: “My rule was, when one corporate fat cat sues another corporate fat cat, this court shall have no jurisdiction.” Why, Justice Marshall? Because the case concerns two rich white guys?
In the article’s conclusion, Kagan praised the progressive view that the Constitution grows and adapts to meet the needs of a changing society, giving Marshall “credit” for our “modern Constitution.”
For the past 100 years, with the advent of the progressive movement, liberal activist judges like Thurgood Marshall, Abner Mikva, William O. Douglas, William Brennan, John Paul Stevens, Harry Blackmun, Ruth Bader Ginsburg and (if she passes Senate confirmation) Elena Kagan have falsely championed themselves as the dynamic bulwark against majoritarian tyranny and political persecution – to help the little guy, the racial minorities, women, the poor or the ubiquitous “despised and disadvantaged,” even as they erect the pagan idol god of judicial supremacy on the ashes of the Constitution, Veritas, liberty, justice and equality.
Paraphrasing Stalin apologist Walter Duranty, the progressive judge’s worldview seems to be summed up: To make a socialist revolution you have to kill a Constitution.
While Kagan’s views of the Constitution will win plaudits with Democratic pols, among Marxist academics, Hollywood hacks and the Upper West Side crowd of Manhattan, Kagan and Justice Marshall’s ideas on constitutionalism are absolutely opposite of the original intent of the constitutional framers and the fundamental notions of the rule of law that justice must be blind and not in favor of anyone – including women, blacks, the poor, midgets or the “despised and disadvantaged.”
Regarding Meese’s point of activist judges rewriting the Constitution into their own perverted image, Justice Marshall, in a speech celebrating the 200th anniversary of the Constitution, did just that and sounded more like Karl Marx than James Madison when he stated:
The men who gathered in Philadelphia in 1787 could not have envisioned these [historical] changes. They could not have imagined, nor would they have accepted, that the document they were drafting would one day be construed by a Supreme Court to which had been appointed a woman and the descendent of an African slave. We the People no longer enslave. But the credit does not belong to the framers. It belongs to those who refused to acquiesce in outdated notions of liberty, justice and equality, and who strived to better them.
The “credit” in other words, belongs not to the constitutional framers, but to people like Justice Thurgood Marshall. This is the jurist Elena Kagan considered the greatest judge of the 20th century? I think not!
Until Congress gets the guts to do its sacred constitutional duty, to impeach all progressive and socialist activist judges whose jurisprudence imposes social justice (Marxism) rather than equal justice under rule of the law, until Congress begins to purge the judiciary of all judges who legislate from the bench and pervert the ideas of the constitutional framers, then political scoundrels like President Barack Obama and other future presidents will continue to insult the collective intelligence of America by nominating such an unremarkable, anti-intellectual anti-constitutionalist as U.S. Solicitor General Elena Kagan.