Democrats & Liberals Archives

Elena Kagan and Justice for All

On May 10 President Barack Obama nominated Elena Kagan to replace retiring Justice John Paul Stevens on the Supreme Court. Because the president spoke of Kagan’s persuasiveness, many assumed that her appointment was a way to swing the Court’s 5-to-4 decisions more often to the liberal side. Jason Linkins mocks this possibility:

One of the weirder qualities that has been attributed to Supreme Court nominee Elena Kagan -- and said to be a selling point to her nomination -- is the widespread belief that she somehow will be able to reliably "persuade" perennial swing-vote Justice Anthony Kennedy to swing in the direction of the more liberal court foursome. I have no idea how that was supposed to work, at all. Is Kagan some kind of mentalist, possessed of the rather boutique power to sway the mind of Anthony Kennedy, specifically?

As usual, pundits - actually, most of us - misinterpret Barack Obama. Yes, he talked of Kagan's persuasiveness, and no, he did not mean that she would often change Kennedy's opinions. This is ridiculous, on its face. Justice Kennedy is an outstanding justice and has been on the Court for some time. He will not be easily persuaded by a junior justice, unless she presents good legal arguments.

The key paragraph in Obama's statement is this:

But Elena is respected and admired not just for her intellect and record of achievement, but also for her temperament -- her openness to a broad array of viewpoints; her habit, to borrow a phrase from Justice Stevens, “of understanding before disagreeing”; her fair-mindedness and skill as a consensus-builder.

She does not jump to conclusions. She's open minded. She listens. She respects those with opposing viewpoints. She is concerned with the common good.

A better way of putting it is that she does not tackle a legal issue from a liberal or a conservative point of view. Her sole concern is for practical justice.

In other words, Elena Kagan is very much like Barack Obama. Barack Obama wants to drag us away from the liberal-conservative confrontation and concentrate on solving problems. Elena Kagan, if confirmed, will help drag the Court away from the liberal-conservative confrontation and concentrate on providing justice for all.

Posted by Paul Siegel at May 12, 2010 8:29 PM
Comment #300462


I think she’ll be a fine justice. I have no idea where she’ll lean or influence, as my crystal ball is particularly muddy in Supreme Court matters.

I like your description of Barack’s balanced view of the world, but even I worry about his tendency towards political expediency. I say that knowing I lack his political skills. I’m ever hopeful he’ll get us to a better place, but I’m not yet convinced we’re heading there.

Posted by: gergle at May 12, 2010 9:01 PM
Comment #300465

Before making an opinion, I think I’ll wait until after the the hearings. That way I will know more than just what her limited resume tell’s about her.

Posted by: MAG at May 12, 2010 10:02 PM
Comment #300466

I agree with MAG. Kagan seems to have the intellectual firepower, education, and experience with the legal system to be a good Justice. Having said that, I’d like to see her receive a grilling.

Posted by: phx8 at May 12, 2010 10:14 PM
Comment #300473

And Republicans like Cornyn, McConnell, and others are contradicting themselves ENTIRELY from their 2005 promotion and endorsements of Harriet Miers’ qualifications despite her having NO judicial experience and having been a lawyer married to the Republican Party. They now posit the 180 degree opposite saying Kagan is or may NOT be qualified DUE to her not having judicial experience and being so closely aligned politically to the Democratic Party in her career.

They just don’t come more two-faced than these.

Posted by: David R. Remer at May 13, 2010 6:33 AM
Comment #300474

David did you expect anything else from the likes of McConnell? The man has no principles and should not have been given the courtesy of a visit from Kagen. I will be surprised if he doesn’t try to drag the approval process out until after the 2010 election.

Posted by: j2t2 at May 13, 2010 8:37 AM
Comment #300481

Add Sen. Jeff Sessions to that list. He too said judicial experience was not required during the Harriet Miers nomination. I haven’t verified it yet, but am told Jim DeMint may be in this circle of 180 degree contradictory hypocrites.

Posted by: David R. Remer at May 13, 2010 12:22 PM
Comment #300485

How about the cryptic ties to Goldman-Sachs. Ya, it is reorted that she only spent one day a year for three years on a board that gave “analysis and advice to Goldman-Sachs and its clients” for a “modest fee” of 10K big ones.

Her anti-military stance is appalling. Even Justice Ginsberg could not justify her stance on the Harvard military recruitment office messup.

It really does not make a hill of beans difference. If the Senate does not ok her another one with baggage will be in line.

I seldom agree with you, but this time I do. She does deserve a grilling as do any appointments to the court system in this country does.

Posted by: tom humes at May 13, 2010 1:34 PM
Comment #300487

Paul wrote; “A better way of putting it is that she does not tackle a legal issue from a liberal or a conservative point of view. Her sole concern is for practical justice.”

And, that is my sole concern. “PRACTICAL JUSTICE” VS CONSTITUTIONAL JUSTICE. Paul, does practical justice trump the Constitution? Please explain “practical justice” as applied to constitional decisions.

Posted by: Royal Flush at May 13, 2010 1:44 PM
Comment #300495

Royal Flush:

“Please explain “practical justice” as applied to constitional decisions.”

Regardless of all commentary to the contrary, ALL justices interpret the constitution. Liberal justices interpret the constitution according to their liberal bias. Conservative justices interpret the constitution according to their conservative biases. They all deliver “constitutional justice.”

Interpret the constitution without either liberal or conservative bias, but primarily in terms of just outcomes for most of us, and you have “practical justice.”

Posted by: Paul Siegel at May 13, 2010 7:25 PM
Comment #300501

I think practical means that Obama is replacing a Justice Stevens with a Justice Kennedy. There should be no problem with confirmation.

Posted by: jlw at May 13, 2010 9:46 PM
Comment #300507

If the Constitution required no interpretation, the entire reason for the existence of a Supreme Court would not exist. Our founders knew what they were doing in erecting the Supreme Court to specifically, interpret the Constitution’s applicability where legal statutes and rulings in lower courts are challenged.

This is way over the heads of those who call for strict adherence to the Constitution without interpretation.

Posted by: David R. Remer at May 14, 2010 8:41 AM
Comment #300512

There will be no justice at all, if this woman is on the SC!

Jeffery Lord wrote an article called “The Socialist Judge: Elena Kagan and the Teachable Moment” in The American Spectator. In quoting Lord, there are questions that should be asked:

“Here are a few other issues to be aired in a discussion about a pro-socialist nominee to the Court:

• What about socialism’s views of the role of corporations under the Constitution? Let’s discuss.

• What about the limits of government in a socialist state?

• If the Constitution is simply a “living document” as liberals love to insist, not to be read as written, what about the real-life of socialism in practice around the world should be injected into any interpretation of the Constitution? If foreign law is something that should be taken into account by American judges, another liberal favorite, which of the laws of socialist states from North Korea to Communist China to the old Soviet Union should be adapted when making Supreme Court decisions?

• What is the nominee’s view of capitalism?

• Should the Court be deciding how much money Americans are entitled to earn?

• Should the government run corporations and banks?

• What is the role of the FCC in regulating the Internet?”

The basis of the article is that Obama has given Republicans an open door, if Republicans are willing to use it. The left, especially on this liberal website, will try to make a joke of the direction Obama and progressives are taking America. Truth is, we are going a direction that is destined to be the ruin of our nation. European countries are failing and the socialist left wants us to go the same direction. Once we fail, we will be like other socialist nations; in complete dependency of government.

This woman is a complete joke and as ugly as sin. In paraphrasing Rush Limbaugh; he has always stated, the women’s movement is made up of ugly women. And certainly, Kagan fits the mold. Isn’t it interesting that attractive intelligent women are always attacked by the left.

Posted by: Beretta9 at May 14, 2010 10:14 AM
Comment #300513

This last post made me roar with laughter. Thanks Beretta 9!!

Posted by: womanmarine at May 14, 2010 10:41 AM
Comment #300516


Which part made you laugh?

1. The part about liberals with a socialist aenda?
2. The part about legitimate questions being asked of Kagan?
3. The part about Europe failing and us following in their footsteps?
4. The part about Americans being made dependent upon government?
5. The part about ugly women making up the NOW group, or as Rush calls them, the NAG group?
6. Or the part about Kagan being one ugly, homely looking woman?

It stands to reason, the NAG group are ugly, because they can’t get a man, so they hate men!!!

Posted by: Beretta9 at May 14, 2010 1:02 PM
Comment #300519

Ugly women can’t get a man so they join the NAG group?

If they don’t have a man, who do they NAG?

What is the name of the group that ugly men join?

I guess people on the left need to take lessons from those on the right on how not to hate. As you can tell by B9’s words, the conservatives love all of us on the left even though we are demon bred.

Posted by: jlw at May 14, 2010 2:41 PM
Comment #300520

Who do they NAG? Everyone!

What is the name of the group that ugly men join? Don’t know, is there such a group?

Demon bred? Possibly

Posted by: Beretta9 at May 14, 2010 2:58 PM
Comment #300521

Point being, is it right to appoint a SC justice who has a socialist agenda?

Does she represent the beliefs of Americans or does she represent the beliefs of the most corrupt, Chicago thuggery style, pro-muslim, pro-socialist president, in the history of America?

Do you on the left actually beleive in the 1st Amendment? One question to those on the left, “DO YOU BELIEVE IN THE 1ST AMENDMENT, AS IT IS WRITTEN IN THE BILL OF RIGHTS?”

Kagan does not!!! She believes the government has the right to control free speech.

Posted by: Beretta9 at May 14, 2010 3:07 PM
Comment #300523

Beretta9, I don’t know why you are bothering with the questions. You seem to know exactly what Kagan thinks.

“Does she represent the beliefs of Americans”

Do you represent the beliefs of Americans? Does anyone?

Perhaps we should ask Kagan what her beliefs are on:




Three ingredients that when combined make a powerful potion that poisons empires to death.

Posted by: jlw at May 14, 2010 3:35 PM
Comment #300525

“Perhaps we should ask Kagan what her beliefs are on:




Great “feel good” questions from the left.

I want to know her beliefs on the Constitution and the Bill of Rights, since this is what she will be ruling on.

Posted by: Beretta9 at May 14, 2010 3:55 PM
Comment #300526

B9 I think she will be grilled in the up comming hearings. Then we will see what kind of justice she will be. Till then, IMO, is he said she said crap. Granted some of her actions in her prior endevors are questionable but I’m sure some in the judicial committe will question them.

Posted by: MAG at May 14, 2010 4:22 PM
Comment #300527


I see no prohibition in the Constitution regarding socialism, liberalism, or any ism. Kagan’s beliefs represent those of almost half the country that believe in or benefit from socialism and the desire to have a stronger central government.

Elections have consequences. That Obama nominated a probable mirror of himself ideologically speaking should not be surprising. And unless she is not qualified (by the very low historical standards) then she should be confirmed.

Posted by: George at May 14, 2010 4:28 PM
Comment #300528

George, are you posting from Russia? Or are you using Russian or European stats?

60% of US adults say Capitolism is better than Socialism, 18% disagree, and 21% not sure

56% of Americans believe government IS the problem and 30% disagree. Therefore, your statement of most Americans believing in a stronger government is not true.

“Elections have consequences”. Humm, will you still believe that in November?

Posted by: Beretta9 at May 14, 2010 4:51 PM
Comment #300531

Beretta what does that say about capitalism as practiced today when only 60% (of course it is a Rasmussen poll so who knows how far off it is) of Americans believe it is a better system than socialism? Perhaps the unfettered capitalism, the voodoo of Reaganomics, and the loss of 7 million jobs due to the greed of the monopolistic predators touting the fee market system has soured some on the capitalist system this past 30 years. I think another reason is the way the talk radio conservatives have abused the meaning of the word socialism the past few years. Calling everyone socialist so often without due cause has backfired it seems.

It seems the problem with far right conservatives/fascist/authoritarians is there can be no middle ground or mix of the 2 systems to better serve the people of this country. Just like your exaggerations of Obama and others in his administration as being socialist when it is incorrect, this type of nonsensical conservative reasoning is exactly why we need a Kagan type on the SCOTUS. The inability to see the forest because the trees are in the way, so inherent in conservative thinking, evidently makes those strict constitutionalists conservatives believe they can yell fire in a crowed theatre as it is their first amendment right.

Hopefully Obama will get to pick at least 2 more judges to sit on the SCOTUS before he leaves office.

Posted by: j2t2 at May 14, 2010 6:46 PM
Comment #300533

Far too many of you posters do not believe in limited government. Limited government was part of the founding fathers concept in putting the Constitution together. For instance, the Bill of Rights is a declaration of what the government cannot do as to the enumerated rights in each of the 10 amendments. If the government had adhered to those first 10 amendments as written we would not be having many of the problems we have today. Like forcing people to buy a product only approved by the federal government whether we wanted it or needed it. The federal government has grossly violated the 10th amendment in hundreds of ways with the legislation put forth and most of it is un-constitutional. The states should be dealing with so many of the issues that the federal government has usurped and the states so cowardly let them absorb into the federal level. The issues brought up before the Congress are teribly inappropriate. It is not just the federal government. The state and local governments are guilty of the same. How is Los Angeles going to pay for those law suits for breach of contract with businesses in AZ that they have severed? How is the bankrupt educational system going to operate schools with a high level of integrity in the entire country? This of course is only a sample of items, but the people operating the machinery of government are not good operators of that machinery. Leadership is lacking at all levels of government. To deny any of the above is putting yourself a position of denial. One way to begin to restore integrity in government is learn who the candidates are. What do they preach? What do they practice? What organizations do they belong to? Why are they running for the office in question? For too long people have stood up and with a smile on their crooked faces said “I believe. . .”. “I will… “. And when they get in office you scratch your head and ask, “Did I really vote for this schmuck?” This November we all have a job to do to get people elected who represent the Constitution and believe in it and will fight for its continued existence as it is written.

Posted by: tom humes at May 14, 2010 7:53 PM
Comment #300535


Polls are nice but it’s elections that count. Obama won 52.% of the popular vote and carried 28 States.

Tom I believe in effective Government and generally means transferring the responsibility of government to the lowest level possible (local, county, state, then fed). If I have a problem with my local water system I can go to county council and complain about it. I might even get something done. Traveling to Washington to complain is not really an option, and if I were to go there’s 300m others standing in line. But others obviously don’t feel the same way as evidenced by Obama’s victory in 08, and as misguided as I think they are I don’t simply deny their existence or expect them to come around to my way of thinking. Democracy is an ugly process but it’s better than one side or the other dictating the alternatives.

Obama won the election and he gets to make the nomination. As a Senator he voted against Alito and Roberts for what he perceived as their politics (standing up for the big guy instead of the little guy). I disagreed with him then, but that doesn’t change my opinion that he gets to have his person now.

I wish the 9th and 10th Amendments meant something, I wish my State didn’t get 35% of its revenue from federal sources last year, and I wish people would stop looking to Washington for solutions. If I were King for a day….. Wait a minute, a lot of folks have died over the years with that kind of thinking.

Posted by: George at May 14, 2010 8:24 PM
Comment #300558

I agree with George, 100% when it comes to local government control. The solution is to replace the federal money with programs paid for on the local level using local solutions. Education is one example of how the local level can benefit via smaller and more plentiful localized schools. School busses could then be used as public transportation instead of sitting in large parking lots most of the day.

The same is true with the mandates in solid waste management. The federal government shouldn’t be dictating how the individual takes out the garbage. Local solutions may be more difficult, such as returning to your grocery store with your empty dish soap bottle and refilling it instead of throwing it away and buying another. This simple task would result is eliminating the bottle and the boxes they came in and turning to a reusable 55 gal. drum that can be refilled also.

Posted by: Weary Willie at May 15, 2010 11:16 AM
Comment #300562

Here is the problem with local government control: it takes control out of the hands of the Federal Government. The Federal Government wants more control, not less control. Mandates from the Feds guarantee government will be able dictate the rules. School districts from democratic controlled areas are broke, therefore federal funds must be used as part of re-distribution of wealth. I agree that state and local governments should be financed and controlled from the local level. This allows the people in those districts to be in control. But the Federal Government wants all americans to be indebted to the federal government. The whole point of “Socialism” is to allow every aspect of our lives, wealth, and rights to be controlled by a central government.

When I was a teenager and driving an oil burning Ford. I used to take a quart jar to the local Standard Oil Station and buy bulk oil for about 12-15 cents. It was pumped out of a 55 gal drum into my quart jar. Why isn’t done today, don’t know. Probably an envionmental law against it…

Posted by: Beretta9 at May 15, 2010 11:57 AM
Comment #300568

Ugly men join the repugniton party.

Posted by: Jeff at May 15, 2010 1:12 PM
Comment #300570

The question then is; Do we allow the federal government to install another federal supreme court justice to maintain a status quo? Or do we insist on a justice that will acknowlege the ninth and tenth amendments along with the rest of the constitution?

I would prefer a fight accompanied by a long list of nominees that will uphold the constitution, to a status quo nominee that may be able to turn one head in a progressive direction.

We don’t need justices to persuade lilly-livered justices to see it their way. We need strong justices whose convictions are crystal clear. I hope congress asks very direct and pointed questions and expects very direct and pointed answers. Yes and No answers work best for me.

Posted by: Weary Willie at May 15, 2010 1:50 PM
Comment #300573

…and while my dumb-ass is waiting here for someone to respond, I ponder the question…

Why is a short list always secret, and never a long list debated in public?

Posted by: Weary Willie at May 15, 2010 5:25 PM
Comment #300574

Think about it. Couldn’t a 90 year old man given us some kind of warning he was going to retire?

Posted by: Weary Willie at May 15, 2010 5:39 PM
Comment #300577

It’s part of the plan to make sure another liberal sets on the court. Wait until Dems have complete control, then announce retirement. You will never see a liberal president nominate a justice who will uphold the constitution. Obama, himself believes the Constitution is flawed and needs to be revised, do you think he would nominate who wants to uphold the Constitution? Oh, the have crystal clear convictions; to evolve the Constitution into something unrecognizable. Yes, I think they should ask tough questions and demand answers, but alas, I fear this is a pipe dream.

Posted by: Beretta9 at May 15, 2010 6:06 PM
Comment #300578

Then step aside, Beretta9.

Whining about what is without a plan is futile. Remember the Borg?

Surrender! Resistance is Futile!!

Not me, dude.

Posted by: Weary Willie at May 15, 2010 6:12 PM
Comment #300580

There’s no but.. about it.

The U.S. Constitution is absolute, or it is not.

It’s time to decide.

Posted by: Tired Tim at May 15, 2010 7:15 PM
Comment #300583

Willie the problem is the fight is already lost; it was over on Nov. ‘08. Fighting now, IMO, goes against the very Constitution you are trying to preserve, and puts you in the same boat as the late Sen. Kennedy (Bork) and Obama himself (Alito and Roberts).

I’m already not voting for DeMint next time based on the Sotomayer nomination. And I’ll vote against Graham if he plays games this time. Republicans and conservatives have no credibility with me if they play politics here.

Posted by: George at May 15, 2010 8:31 PM
Comment #300584
…the fight is already lost;

Are you willing to roll over and let the federal government scratch your belly for you?

Are you serious? It only started in earnest in ‘08?!
“We Have Not Yet Begun To Fight!!!”

2 years do not make a victory, George. The Democratics are driving their own stake into their own heart. The Progressive Party has used the economy and the media to promote it’s agenda and the people have seen thru it. We’re not as dumb as we’re portrayed to be.

IMO, fighting now does not go against the Constitution. Fighting now goes parallel with the Declaration of Independence:

But when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security.

Posted by: Weary Willie at May 15, 2010 9:16 PM
Comment #300585

Tell me, George! Tell me how the fight is already lost! I want to see how many will support your explanation of how the fight is over.

Posted by: Weary Willie at May 15, 2010 9:24 PM
Comment #300593

It was pumped out of a 55 gal drum into my quart jar. Why isn’t done today, don’t know. Probably an envionmental law against it…

Beretta how typical to see a conservative blame the Federal government for everything whether the problem is real or imagined. Why not ask your local supplier why they use gallon and quart size containers in lieu of 55 gal drums as it is readily available.

To all,

“Some men look at constitutions with sanctimonious reverence and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human and suppose what they did to be beyond amendment. I knew that age well; I belonged to it and labored with it. It deserved well of its country. It was very like the present but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves were they to rise from the dead.” —Thomas Jefferson to Samuel Kercheval, 1816. ME 15:40

Posted by: j2t2 at May 16, 2010 9:23 AM
Comment #300623

all of this talk about the constitution and enforcing it. Where was the outrage from the right when George Bush said it was just a g.d. piece of paper? and to stop throwing it up in his face.

Posted by: Jeff at May 17, 2010 12:35 PM
Comment #300626

Willie, I was speaking only of the judicial confirmation process. Trying to use advise and consent to block a nomineee is as much a perversion as anything the Democrats are doing. In this case the ends don’t justify the means.

Posted by: George at May 17, 2010 1:23 PM
Comment #300627

Jeff, do you have a source for that quote?


Posted by: George at May 17, 2010 1:27 PM
Comment #300633

George, You make it sound like the senate is a rubber stamp for this president. A filibuster may not influence the results but hard, pointed, questions should expect concrete answers. Many have touted her experience but none of it has been on the bench. She seems to be pre-occupied with gays and some consider her stand against military recrutment was faulty judgement, implimented to make a point.

If her decision process is motivated to “make a point” then her motive in every case is suspect.

Posted by: Weary Willie at May 17, 2010 3:52 PM
Comment #300642

George here is the story on the supposed GWB quote.

“The article that previously appeared under this URL has been removed from our database because a followup investigation revealed the sources quoted in the article did not, as they claimed, attend a White House meeting between President George W. Bush where we reported he called the Constitution a “god damned pieced of paper.”“

It sure sounded like him though.

Jeff’s point is still valid where were all these “constitution thumpers” when the Patriot Act was passed in 3 days time?

Where were they when the conservative VP Dick Cheney said deficits don’t matter and the wars on terror were funded on credit?.

Where were they when protesters were sequestered in “free speech zones” during the previous administration.

Posted by: j2t2 at May 17, 2010 7:10 PM
Comment #300643

torture, NSA program, illegal eavesdropping on American citizens, outing a CIA agent.

Posted by: jeff at May 17, 2010 7:26 PM
Comment #300652

Jeff, does it matter that the article was removed because the source didn’t witness the event? Apparently not, because this Turley fellow uses misdomeanors and overturned examples of other people’s experiences to make his case that George Bush is a traitor. And from Keith Olberman, no less! Jeff, has anyone been convicted any of the verbs your last post contains?

j2t2, I see the passage of the Patriot Act as a tool used to fight a war against the people who think they can buy their mom a new house by killing themselves. There is no reason why the Patriot Act cannot be repealed.
What would it take to repeal the Patriot Act? Do you think it’s time to repeal the Patriot Act? Isn’t a mechanism in place to end the Patriot Act, just as there is with the Bush Tax Cuts? It’s up to the Congress and the President whether the Patriot Act and the Bush Tax Cuts are extended.

The path needed to do the maximum damage to the Patriot Act’s life would be to re-elect candidates that specifically state they will repeal the Patriot Act, and then resign in favor of a replacement that will repeal another law that is bankrupting this country. I’m sure someone can think of something to rally against. Then, when that one is successful, he resigns in favor of someone who champions another solution to another problem. Isn’t that like what the states did before the 17th amendment was ratified? Think about it. Why do we need term limits after the 17th amendment was ratified?

We don’t need a party, We need a goal. And what do they say? They say,

Set a realistic goal, meet it, make another goal.

Posted by: Weary Willie at May 17, 2010 10:12 PM
Comment #300673

Willie, Libby was convicted.

If memory serves me, the patriot act was passed after the outrage of it’s unconstitutionality, meaning they alreay were violating the constittion prior to passage.

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