Kagan

[Crafty_Dog]

Alexander's Essay – May 13, 2010

Komrade Kagan
"[T]he opinion which gives to the judges the right to decide what laws are constitutional and what not ... would make the judiciary a despotic branch. ... [T]he germ of dissolution of our federal government is ... the federal Judiciary ... working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped. ... They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone." --Thomas Jefferson

Justice Elena Kagan?Barack Obama has nominated his Solicitor General, Elena Kagan, to replace retiring Supreme Court Justice John Paul Stevens.

Since this is a lifetime appointment, we should consider the implications for our Constitution and for liberty.

Will this Ivy League academic be an advocate for Essential Liberty and Rule of Law, or does she subscribe to the errant notion of a "living constitution"?

According to Obama, Kagan "is widely regarded as one of the nation's foremost legal minds," and he's right -- if by "widely" he means among elitist Leftists.

In fact, Obama's assessment of Kagan mirrored that of her über-Leftist Princeton prof Sean Wilentz, under whose tutelage Kagan wrote her glowing thesis on socialism in the early 20th century. "Kagan," said Wilentz, "is one of the foremost legal minds in the country."

In her thesis, Kagan lamented the fact that free enterprise overcame socialism and concluded, "A coherent socialist movement is nowhere to be found in the United States to speak of a golden past than of a golden future, of capitalism's glories than of socialism's greatness."

"Why, in a society by no means perfect, has a radical party never attained the status of a major political force?" wondered Kagan. "Why, in particular, did the socialist movement never become an alternative to the nation's established parties? Through its own internal feuding, then, the SP [Socialist Party] exhausted itself..."

In her thesis, Kagan lamented the fact that free enterprise overcame socialism and concluded, "In our own times, a coherent socialist movement is nowhere to be found in the United States. Americans are more likely to speak of a golden past than of a golden future, of capitalism's glories than of socialism's greatness. ... In unity lies their only hope."

Ah, yes, the "hope and change" necessary for Obama to make good on his promise to "fundamentally transform the United States of America."

Just as Obama was mentored by Marxists, Kagan has been steeped in socialist doctrine, and is no doubt rejoicing in the resurgence of socialism in the U.S. under the leadership of Obama and his water boys in the legislative and judicial branches.

As for her qualifications for a seat on the Supreme Court, Obama insists that Kagan "is an acclaimed legal scholar with a rich understanding of constitutional law."

In fact, she has exactly no judicial experience and very limited litigation experience. Legal authority Ken Klukowski writes that Kagan is an ideal nominee for Obama: "She's a liberal without a paper trail."

Sounds like the Obama model.

Most of Kagan's experience is academic (read: "deficient"), at the University of Chicago Law School and as dean of Harvard Law School, where she attempted to boot military recruiters off campus at the height of the war in Iraq. Her reason for this frontal assault on our nation's ability to defend itself was the "Don't Ask, Don't Tell" policy, which Kagan called "a profound wrong -- a moral injustice of the first order."

Even The Washington Post concludes that her qualifications "can only be called thin," noting further, "even her professional background is thin."

While media profiles of Kagan paint her, predictably, as a moderate "consensus-builder," Kagan is, in fact, a genuine, hardcore Leftist, a former legal counsel to the Clintonista regime who began her political career in earnest as a staffer for liberal Massachusetts Governor Michael Dukakis's presidential run back in 1988.

Her liberal roots were firmly entrenched by the time she graduated from Princeton in 1981, the year Ronald Reagan took office. A New York Times profile of Kagan notes, "On Election Night, she drowned her sorrow in vodka and tonic as Ronald Reagan took the White House."

More recently, the thin legal trail she has established as Obama's Solicitor to the Supreme Court raises serious questions about Kagan's commitment to the plain language of the First Amendment.

In a 1996 law review article, Kagan wrote that the "redistribution of speech" is not "itself an illegitimate end," which is another way of saying that the court has a responsibility to level the playing field for various ideas, including the Internet, talk radio, etc.

She recently offered a similar argument before the High Court in regard to the government's authority to regulate print materials under campaign finance laws, a notion that Chief Justice John Roberts concluded, "As a free-floating test for First Amendment coverage, that [proposition] is startling and dangerous."

Says Kagan, "Constitutional rights are a product of constitutional text as interpreted by the courts and understood by the nation's citizenry and its elected representatives."

She undoubtedly came to that errant conclusion while clerking for Justice Thurgood Marshall, of whom she later wrote admiringly, "In Justice Marshall's view, constitutional interpretation demanded, above all else, one thing from the courts: it demanded that the courts show a special solicitude for the despised or disadvantaged. It was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government -- to safeguard the interests of people who had no other champion. The Court existed primarily to fulfill this mission. ... The Constitution, as originally drafted and conceived, was 'defective.' The Constitution today ... contains a great deal to be proud of. 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.' Our modern Constitution is [Marshall's]."

Setting aside her utter disdain for our Constitution and its authors, Kagan is flat-out wrong about the role of the High Court. It exists to safeguard the unbiased application of our Constitution's original intent.

In 1987, the year before Kagan clerked for Marshall, he delivered a lecture entitled, "The Constitution: A Living Document," in which he argued that the Constitution must be interpreted in a way that succumbs to the contemporary political, moral and cultural climate.

That is the very definition of the "living constitution" upon which judicial activists have relied in order to amend our Constitution by judicial fiat rather than its prescribed method in Article V.

No doubt, Kagan will advance that heretical and treasonous interpretation.

Obama claims that Kagan understands the law "not as an intellectual exercise or words on a page -- but as it affects the lives of ordinary people."

Not as "words on a page"?

It is precisely that rejection of the plain language of our Constitution that led President Thomas Jefferson in 1804 to call the court "the despotic branch."

Indeed, since the very founding of our constitutional government, the judiciary has worked "like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped."

Back in 1987, during confirmation hearings for Judge Robert Bork (one of the most qualified jurists ever nominated to the High Court), one Leftist senator commented, "The Framers intended the Senate to take the broadest view of its constitutional responsibility," especially in regard to the nominee's "political, legal and constitutional views." That senator was Joe Biden, who rejected Judge Bork because he was a "constitutional constructionist," precisely the attribute our Founders wanted in jurists.

Perhaps those in the Senate today will rightly consider Kagan's "political, legal and constitutional views," and reject her nomination in order to preserve Essential Liberty and Rule of Law.

Semper Vigilo, Fortis, Paratus et Fidelis!

Mark Alexander
Publisher, PatriotPost.US

[Body-by-Guinness]

Have this posted in Constitutional Law:

http://dogbrothers.com/phpBB2/index.php?topic=1850.msg37010#msg37010

[G M]

When did Matthew Broderick gain so much weight? Just asking.....

[Body-by-Guinness]

Dude, that's cold! 

[Crafty_Dog]

By TOM GRANT AND JOHN ULLYOT
When federal agents took Times Square bombing suspect Faisal Shahzad into custody at JFK airport on May 3, they interviewed him for several hours before reading him his Miranda rights. Agents did this under the "public safety exception" recognized by the Supreme Court in the 1984 case New York v. Quarles. The same exception was used in interrogating accused Christmas Day bomber Umar Farouk Abdulmutallab, as well as other terror suspects arrested on U.S. soil.

But what if the Supreme Court had never approved a public safety exception in the first place? That question is directly relevant to the upcoming Senate confirmation hearings of Supreme Court nominee Elena Kagan. The Justice she would replace, John Paul Stevens, and her boss when she clerked for the Court, Thurgood Marshall, both rejected the public safety exception and were among the dissenting Justices in this key case.

As the Obama administration turns to the federal courts to deal with terror suspects, the Supreme Court could be asked to weigh in again on the limits of the public safety exception. So finding out if the former Harvard Law School dean accepts or rejects the Marshall-Stevens position should be a priority for senators as they consider her nomination.

New York v. Quarles involved a simple set of facts. Police pursued an armed rape suspect into a supermarket. They spotted him, he ran, and the police briefly lost sight of him. In that moment, the suspect discarded his loaded .38 caliber pistol. The police then caught up and surrounded him. They saw the suspect's empty shoulder holster and asked where the pistol might be. The suspect pointed and said "over there." Then the police found the weapon where the suspect had pointed.

Up to that point, the officers had not read the suspect his Miranda rights. The question before the Court was whether his statement—and the pistol—could be admitted into evidence. The Court held that both could be admitted under a new "public safety exception" for law enforcement authorities acting in the public interest.

This exception is even more important today, when law enforcement authorities face terrorists armed with weapons vastly more powerful than a .38 caliber pistol, and particularly so for an administration that emphasizes criminal prosecution in its fight against terrorism. Last weekend, Attorney General Eric Holder said the public safety exception helps law enforcement officers when they apprehend terrorist suspects like Shahzad and suggested that the administration would support legislative efforts to expand it.

It's curious, then, that President Obama would invoke Justice Stevens' unblemished track record of "wisdom" as an inspiration to Ms. Kagan. "For nearly 35 years . . . [Stevens] has brought to each case not just mastery of the letter of the law, but a keen understanding of its impact on people's lives. And he has emerged as a consistent voice of reason, helping his colleagues find common ground on some of the most controversial issues the Court has ever faced," the president said in nominating her on Monday.

So how exactly did Justice Stevens view the public safety exception? In Quarles, he joined Marshall in opposing the exception in the strongest terms, expressing pointed concern for the rights of the criminal defendant even in situations involving a threat to public safety. "[T]he arresting officers had no legitimate reason to interrogate the suspect without advising him of his rights to remain silent and to obtain assistance of counsel," Marshall wrote in the dissent, joined by Justice Stevens.

In their view, the public safety exception to Miranda invited "coerced self-incriminating statements in criminal prosecutions" that would lead to "chaos." The decision of the Court's majority was "an unwise and unprincipled departure from our Fifth Amendment precedents," and involved a "chimerical quest for public safety."

Yet in apprehending terrorists in a ticking-time bomb scenario or after an attack, the quest of law enforcement authorities is anything but chimerical. Agents need critical information right away in order protect the public. Without the public safety exception, they are left with few tools to get that information lawfully.

Where does Solicitor General Kagan, who clerked for Marshall a mere three years after he wrote his dissent in Quarles, stand on this issue? During the upcoming confirmation hearings, senators will want to examine closely whether she agrees with her former boss and the Justice she would succeed, and how she would view efforts to expand the public safety exception they both opposed.

Mr. Grant is a lecturer in law at Cambridge University. Mr. Ullyot is a Republican strategist and former spokesman for the Senate Armed Services Committee.

[Crafty_Dog]

Not the best written piece, but the underlying point has merit:

Kagan Bad on Guns
by  Brian Darling

05/14/2010


“President Obama’s nominee to the U.S. Supreme Court,” I wrote in HUMAN EVENTS on June 3, 2009, “owes the American people an explanation on her view of the 2nd Amendment.”

The nominee then was Sonia Sotomayor, who never provided an explanation.  Now, with the choice of Solicitor General Elena Kagan, President Obama is two for two in selecting Supreme Court nominees with an apparent strong hostility to the right of self-defense. 

And it’s only fair that Kagan now be held to the “Kagan Standard.” 


In the spring of 1995, Kagan wrote a book review of Stephen Carter’s The Confirmation Mess.  “When the Senate ceases to engage nominees in a meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public,” Kagan wrote.

Well, to maintain that standard, the Senate should demand Clinton-era memos written by Kagan, so lawmakers can understand her view of the 2nd Amendment.  After all, she was very much involved in many of the gun-control initiatives pushed by President Bill Clinton.  The Senate must “properly evaluate” Kagan and “appropriately” educate the public about any anti-gun views she holds. 

Of course, some documents from Kagan’s time in the Clinton Administration should remain privileged, to protect a President’s right to enjoy unfettered advice from his staff during deliberations.  But other official memos should be provided to senators and the American public. 

Instead, though, expect the administration to stonewall.  Kagan has no public record to speak of, and the President aims to keep her anti-gun views secret from the American public. 

Even without much of a paper trail, reporters have already found a “smoking gun” that indicates Kagan’s extensive anti-gun activism.  James Oliphant of the Los Angeles Times wrote May 10, “according to records at the William J. Clinton Presidential Library in Little Rock, Ark., she also drafted an executive order restricting the importation of certain semiautomatic assault rifles.”  Senators should study that executive order and the memos written during its preparation to understand if Kagan advised Clinton to infringe on the 2nd Amendment rights of Americans. 

There’s more evidence of hostility to gun rights on her part.  The Times also reports that “gun-control efforts were a hallmark of the Clinton Administration.  Kagan had already been involved in an executive order that required all federal law-enforcement officers to install locks on their weapons.”  Kagan also may have worked on legislation to effectively close gun shows.  “Those moves angered the National Rifle Association, which became even more alarmed in late 1998 when Clinton proposed closing the ‘gun show’ loophole that allowed firearms purchases without background checks.”

Her efforts to restrict the importation of some guns, mandate trigger-locks on federal law-enforcement officers’ guns and efforts to close gun shows are three issues that must be raised during Kagan’s Senate Judiciary Committee confirmation hearing.  Expect Kagan to dodge any direct questions on these gun-grabbing activities during the Clinton years, though, and run away from her own “Kagan Standard.” 

To indicate where the American people are on this, note that the Senate has voted six times on pro-gun legislation.  Large bipartisan majorities have voted for legislation authored by Sen. Tom Coburn (R.-Okla.) to allow guns in national parks, a bill by Sen. John Ensign (R.-Nev.) to restore 2nd Amendment rights to District of Columbia residents, two amendments by Sen. Robert Wicker (R.-Miss.) to allow law-abiding Amtrak passengers to securely transport firearms in checked baggage and legislation sponsored by Sen. John Thune (R.-S.D.) to set standards to allow individuals to conceal and carry a firearm over state lines.  An amendment from Sen. Richard Burr (R.-N.C. ) to protect the 2nd Amendment rights of veterans was the only one to garner less than a majority of the Senate.   

Of the five pieces of strong pro-gun legislation offered that pulled more than 50 votes, 15 Democrats voted pro-gun, including Max Baucus and Jon Tester of Montana, Evan Bayh of Indiana, Mark Begich of Alaska, Michael Bennet and Mark Udall of Colorado, Robert Casey of Pennsylvania, Byron Dorgan of North Dakota, Russ Feingold of Wisconsin, Kay Hagan of North Carolina, Mary Landrieu of Louisiana, Blanche Lincoln of Arkansas, Ben Nelson of Nebraska, Harry Reid of Nevada and Jim Webb of Virginia.  All of these Democrats voted for Sotomayor, but will they vote for a second justice who seems hostile to the 2nd Amendment?

There is also evidence that in 1987, Kagan said that she had no sympathy for the claim of a man that his 2nd Amendment rights were violated.  Bloomberg reports that “Elena Kagan said as a U.S. Supreme Court law clerk in 1987 that she was ‘not sympathetic’ toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed pistol.”  In the wake of the District of Columbia v. Heller decision holding that the 2nd Amendment is an individual right, it is incumbent upon Senators to explore this statement of Kagan from her early career as a lawyer to see if her views have changed.

Senators should not allow Kagan to dodge questions about the right to self-defense that’s enshrined in the Constitution.  If Kagan tries to dodge questions on this or any other important issue, senators have the moral duty to extend debate until those questions are answered. Anything less would be Constitutional malpractice.

[Crafty_Dog]

"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 re-write it. Given Solicitor General Kagan's complete lack of judicial experience, and, for that matter, very limited litigation experience, Senators must not be rushed in their deliberative process. Because they have no prior judicial opinions to look to, 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 judges 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." --former Attorney General Ed Meese

[DougMacG]

"...while her record is thin, it is dangerously consistent.

In United States v Stevens, which Kagan argued and lost on behalf of a law passed by Congress which criminalized “the commercial creation, sale, or possession of certain depictions of animal cruelty," she suggested in a written brief that "Whether a given category of speech enjoys 1st Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs."

In his 8-1 majority opinion, Chief Justice Roberts reaction to Kagan's assertion was as fierce a statement as I've seen from his pen:

“As a free-floating test for 1st Amendment coverage, that sentence is startling and dangerous. The 1st Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The 1st Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document ‘prescribing limits, and declaring that those limits may be passed at pleasure.’"

Does anybody wonder who Kagan believes would be the arbiter of such a test? The federal bureaucracy, no doubt. But the details of the test aren't as important as Kagan's assault on Americans' most fundamental right—freedom of speech.

Less than a year earlier, in Citizens United v Federal Election Commission, Kagan and her office argued that the "McCain-Feingold" Bipartisan Campaign Reform Act would theoretically allow the government to ban electioneering communication or publication 30 or 60 days before an election.

As in Stevens, Kagan ran into the buzzsaw of John Roberts who, in a concurring opinion in the 5-4 decision overturning some of McCain-Feingold's key provisions, gave Kagan this slap-down:

“The government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the 1st Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern. Its theory, if accepted, would empower the government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations—as the major ones are. 1st Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy.

“The court properly rejects that theory, and I join its opinion in full. The 1st Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.”

Roberts' reference to pamphlets was not accidental: During oral argument in September, 2009, there was this telling back and forth between the chief justice and the out-of-her-depth Kagan, following Kagan's response to Justice Scalia about banning books (which Kagan said the government wouldn't do):

Chief Justice Roberts: But...we don't put our 1st Amendment rights in the hands of FEC bureaucrats; and if you say that you are not going to apply it to a book, what about a pamphlet?

Solicitor General Kagan: I think a—a pamphlet would be different. A pamphlet is pretty classic electioneering, so there is no attempt to say that [the law] only applies to video and not to print.

Got that? Kagan argued that McCain-Feingold means the government could ban the next Common Sense, the next Thomas Paine or Daniel DeFoe, because they might have the temerity to care and opine about who gets elected to political power in the United States. And we're just taking her word for it that, had she not lost that case as well, government wouldn't determine that there's basically no difference between a book and a pamphlet, so why draw the line at banning pamphlets?

Kagan's hostility toward the plain meaning of the 1st Amendment is nothing new. In a 1996 paper (PDF) for the University of Chicago Law Review (she was a professor at the University of Chicago at the same time that Barack Obama was a lecturer there), Kagan suggested that the government's motives in restricting speech should be important factors in whether those restrictions are upheld by a court. She wonders aloud, in eye-opening Socialist language "what view of the 1st Amendment accounts for the court's refusal to allow, by means of restrictions, the redistribution of expression?"

You read that right; she said "redistribution of expression."

She continues: "The question remains, however, why the court should treat as especially suspicious content-neutral regulations of speech—such as the regulations in Buckley—that are justified in terms of achieving diversity." You can already hear her ruling in a sure-to-come challenge to the re-imposition of the Fairness Doctrine meant to muzzle talk-radio conservatives in the guise of increasing "diversity of opinion".

Similar to her argument in Stevens which implies a government arbiter of speech, Kagan makes this remarkable statement in her paper: "If there is an ‘overabundance’ of an idea in the absence of direct governmental action—which there well might be when compared with some ideal state of public debate—then action disfavoring that idea might ‘unskew,’ rather than skew, public discourse."

Link: http://www.humanevents.com/article.php?id=37018

[Body-by-Guinness]

A few 'vapid' questions for Kagan
By George F. Will
Friday, June 25, 2010;

Given Elena Kagan's aversion to "vapid and hollow" confirmation hearings devoid of "legal analysis," beginning Monday she might relish answering these questions:

-- It would be naughty to ask you about litigation heading for the Supreme Court concerning this: Does Congress have the right, under its enumerated power to regulate interstate commerce, to punish the inactivity of not purchasing health insurance? So, instead answer this harmless hypothetical: If Congress decides that interstate commerce is substantially affected by the costs of obesity, may Congress require obese people to purchase participation in programs such as Weight Watchers? If not, why not?

-- The government having decided that Chrysler's survival is an urgent national necessity, could it decide that Cash for Clunkers is too indirect a subsidy and instead mandate that people buy Chrysler products?

-- If Congress concludes that ignorance has a substantial impact on interstate commerce, can it constitutionally require students to do three hours of homework nightly? If not, why not?

-- Can you name a human endeavor that Congress cannot regulate on the pretense that the endeavor affects interstate commerce? If courts reflexively defer to that congressional pretense, in what sense do we have limited government?

-- In Federalist 45, James Madison said: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite." What did the Father of the Constitution not understand about the Constitution? Are you a Madisonian? Does the doctrine of enumerated powers impose any limits on the federal government? Can you cite some things that, because of that doctrine, the federal government has no constitutional power to do?

-- Is it constitutional for Arizona to devote state resources to enforcing federal immigration laws?

-- Is there anything novel about the Arizona law empowering police officers to act on a "reasonable suspicion" that someone encountered in the performance of the officers' duties might be in the country illegally?

-- The Fifth Amendment mandates "just compensation" when government uses its eminent domain power to take private property for "public use." In its 2005 Kelo decision, the court said government can seize property for the "public use" of transferring it to wealthier private interests who will pay more taxes to the government. Do you agree?

-- Should proper respect for precedent prevent the court from reversing Kelo? If so, was the court wrong to undo the 1896 ruling in Plessy v. Ferguson that segregating the races with "separate but equal" facilities is constitutional?

-- In 1963, President John Kennedy said Congress should "make a commitment . . . to the proposition that race has no place in American life or law." Was he right?

-- In 1964, Sen. Hubert Humphrey, a principal sponsor of that year's Civil Rights Act, denounced the "nightmarish propaganda" that the law would permit preferential treatment of an individual or group because of race or racial "imbalance" in employment. What happened?

-- William Voegeli, contributing editor of the Claremont Review of Books, writes: "The astonishingly quick and complete transformation of the Civil Rights Act of 1964, from a law requiring all citizens be treated equally to a policy requiring that they be treated unequally, is one of the most audacious bait-and-switch operations in American political history." Discuss.

-- In a 2003 case affirming the constitutionality of racial preferences in law school admissions, Justice Sandra Day O'Connor said: "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." If you are a sitting justice in 2028, do you expect to conclude that such preferences can no longer survive constitutional scrutiny because they no longer serve a compelling public interest?

-- The president is morose about the court's Citizens United decision holding that the First Amendment, which says Congress shall make "no law" abridging freedom of speech, means no laws abridging a corporation's freedom to speak, including nonprofit advocacy corporations such as the National Rifle Association and the Sierra Club. The court called it "censorship" for government "to command where a person may get his or her information or what distrusted source he or she may not hear." Do you agree?

-- You have noted that the court often considers legislative motives when deciding First Amendment cases. Should the court consider legislators' motives if, in response to Citizens United, they impose new burdens on corporate speech?

-- When incumbent legislators write laws restricting the quantity, content and timing of speech about legislative campaigns, are not their motives presumptively suspect?

Just wondering.

http://www.washingtonpost.com/wp-dyn/content/article/2010/06/24/AR2010062403178.html

[Crafty_Dog]

Excellent piece.

[ccp]

      
    
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JULY 5, 2010, ISSUE   |   VIEW COVER   |   BUY LATEST ISSUE   |   SUBSCRIBE
Jonah Goldberg
June 30, 2010 12:01 A.M.

The Un-Borkable Elena Kagan
It doesn’t look like Kagan will be following the Kagan standard.

Say it ain’t so, Elena.

Elena Kagan thinks that the “Borking” of Robert Bork during his 1987 confirmation hearings for the Supreme Court would deserve a commemorative plate if the Franklin Mint launched a “Great Moments in Legal History” line of dishware.

This is not the time to rehearse all the reasons why Kagan is wrong on that score. Still, there is one adverse result of the Bork hearings worth dwelling on. Bork was the last Supreme Court nominee to give serious answers to serious questions. But because he was successfully anathematized by the Left, no nominee since has dared to show Borkian forthrightness.

Consider Monday’s thunderclap from the judicial Mount Olympus: The Second Amendment right to own a gun extends to state and local government. Personally, I think Justice Clarence Thomas’s separate opinion in favor of the 14th Amendment’s “privileges and immunities” clause over the due-process clause was the better argument. But that’s a debate for another day.

The more newsworthy opinion came from rookie Justice Sonia Sotomayor. She concurred with Justice Stephen Breyer’s dissent, which held that there is no fundamental right to bear arms in the U.S. Constitution. “I can find nothing in the Second Amendment’s text, history or underlying rationale that could warrant characterizing it as ‘fundamental’ insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes,” Breyer wrote for the minority.

But when Sotomayor was before the Senate Judiciary Committee one year ago for her own confirmation hearings, she gave a very different impression of how she saw the issue. Senate Judiciary Chairman Patrick Leahy asked her, “Is it safe to say that you accept the Supreme Court’s decision as establishing that the Second Amendment right is an individual right?”

“Yes, sir,” she replied.

Both Sotomayor and Leahy festooned their colloquies with plenty of lawyerly escape hatches. That’s why Leahy asked the questions the way he did, and that’s why Sotomayor answered them the way she did. It’s also why he spun her answers into more than they were: “I do not see how any fair observer could regard [Sotomayor’s] testimony as hostile to the Second Amendment personal right to bear arms, a right she has embraced and recognizes.” He made it sound as though she was open to an expansive reading of the Second Amendment when everyone knew she wasn’t. (As a judge, she was hardly a hero of the NRA.)

Here’s the point: Sotomayor wasn’t an exception to the rule; she was following it.

Although the Bork inquisition was a largely partisan affair, the consequences have yielded a bipartisan sham. Republican and Democratic nominees alike are trained to say as little as possible and to stay a razor’s width on the side of truthfulness. The point is not to give the best, most thoughtful, or most honest answer, but to give the answer that makes it the most difficult for senators to vote against you. It’s as if we expect nominees to demonstrate — one last time — everything we hate and distrust about lawyers before they don their priestly robes.

Nobody is shocked that Sotomayor has revealed herself to be the liberal everyone knew her to be. But the fact that everyone was in on the lie is just further evidence of the sham Supreme Court hearings have become. They are a nonviolent and fairly bloodless cousin to totalitarian show trials, where everyone follows a script and politicians pretend to be “gravely concerned” and “shocked” upon “discovering” things they already knew.

And that’s why Kagan should be the hero of this tale. She has vociferously argued that the “Bork hearings were great . . . the best thing that ever happened to constitutional democracy.” She has lamented how, ever since, the hearings process has become nothing more that “a repetition of platitudes.” Kagan once implored senators to dig deep into the nominee’s “constitutional views and commitments.”

Alas, it doesn’t look like Kagan will be following the Kagan standard. On Tuesday morning, she distanced herself as best she could from those views. And when asked by Sen. Jeff Sessions whether she is a “legal progressive” — something pretty much all objective observers and her own friends and former colleagues know her to be — the brilliant and scholarly Kagan claimed to have no idea what the term even means.

After his rejection by the Senate, Bork wrote a masterful book, The Tempting of America: The Political Seduction of the Law. The title of the book about Kagan might well be titled The Tempting of Kagan: The Political Seduction of the Process.

— Jonah Goldberg is editor-at-large of National Review Online and a visiting fellow at the American Enterprise Institute. © 2010 Tribune Media Services, Inc.

 
 © National Review Online 2010. All Rights Reserved.

 
 

[DougMacG]

BBG posted the first part just a little back in this thread.  Part 2 follows.  All of these I think are worthy of discussion perhaps on the constitutional issues thread since it looks like no national discussion of the meaning of the constitution is going to break out over this vapid nominee.

http://www.washingtonpost.com/wp-dyn/content/article/2010/06/27/AR2010062703256.html?hpid=opinionsbox1

More questions for nominee Elena Kagan
   
Pursuant to Elena Kagan's expressed enthusiasm for confirmation hearings that feature intellectual snap, crackle and pop, here are some questions the Senate Judiciary Committee can elate her by asking:

-- Regarding campaign finance "reforms": If allowing the political class to write laws regulating the quantity, content and timing of speech about the political class is the solution, what is the problem?

-- If the problem is corruption, do we not already have abundant laws proscribing that?

-- If the problem is the "appearance" of corruption, how do you square the First Amendment with Congress restricting speech to regulate how things "appear" to unspecified people?

-- Incumbent legislators are constantly tinkering with the rules regulating campaigns that could cost them their jobs. Does this present an appearance of corruption?

-- Some persons argue that our nation has a "living" Constitution; the court has spoken of "the evolving standards of decency that mark the progress of a maturing society." But Justice Antonin Scalia, speaking against "changeability" and stressing "the whole antievolutionary purpose of a constitution," says "its whole purpose is to prevent change -- to embed certain rights in such a manner that future generations cannot readily take them away. A society that adopts a bill of rights is skeptical that 'evolving standards of decency' always 'mark progress,' and that societies always 'mature,' as opposed to rot." Is he wrong?

-- The Ninth Amendment says: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." The 14th Amendment says no state may abridge "the privileges or immunities" of U.S. citizens. How should the court determine what are the "retained" rights and the "privileges or immunities"?
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-- The 10th Amendment ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people") is, as former Delaware governor Pete du Pont has said, "to the Constitution what the Chicago Cubs are to the World Series: of only occasional appearance and little consequence." Were the authors of the Bill of Rights silly to include this amendment?

-- Should decisions of foreign courts, or laws enacted by foreign legislatures, have any bearing on U.S. courts' interpretations of the Constitution or federal laws (other than directly binding treaties)?

-- The Fifth Amendment says private property shall not be taken by government for public use without just compensation. But what about "regulatory takings"? To confer a supposed benefit on the public, government often restricts how persons can use their property, sometimes substantially reducing the property's value. But government offers no compensation because the property is not "taken." But when much of a property's value is taken away by government action, should owners be compensated?

-- In Bush v. Gore, which settled the 2000 election, seven justices ruled that Florida vote recounts that were being conducted in different jurisdictions under subjective and contradictory standards were incompatible with the Constitution's guarantee of "equal protection of the laws." Were they right?

-- In Bush v. Gore, five justices held that Article II of the Constitution gives state legislatures plenary power to set the rules for presidential elections. The Florida legislature fashioned election rules to produce presidential electors immune from challenge by Congress. But the legislature said that immunity depended on electors being chosen by a certain date, which could not be met if further recounts were to ensue. The court held that allowing more recounts would have contravened the intent of Florida's legislature. So the recounts were halted. Was the court's majority correct?

-- Justice Thurgood Marshall, for whom you clerked, said: "You do what you think is right and let the law catch up." Can you defend this approach to judging?

-- You have said: "There is no federal constitutional right to same-sex marriage." But that depends on what the meaning of "is" is. There was no constitutional right to abortion until the court discovered one 185 years after the Constitution was ratified, when the right was spotted lurking in emanations of penumbras of other rights. What is to prevent the court from similarly discovering a right to same-sex marriage?

-- Bonus question: In Roe v. Wade, the court held that the abortion right is different in each of the three trimesters of pregnancy. Is it odd that the meaning of the Constitution's text would be different if the number of months in the gestation of a human infant were a prime number?

[DougMacG]

Analogous to the climategate fraud discovered in the leaked emails, this case of disguising political views as science in order to deceive the public and in this case the courts in order to further your own blind political objectives.  What do we do when we catch a high Democrat in this behavior?  Well offer them a lifetime appointment of course onto the highest court in the land.

Please ask your senators for or against to hold off until after the summer recess on this controversial nominee.  Let the facts of this sort out and let's see what other examples of zero integrity justice emerge.  Thank you.
-----
(see link below for authorship)
A key event in the politics of partial-birth abortion was a report by a "select panel" of the American College of Obstetricians and Gynecologists (ACOG), a supposedly nonpartisan physicians' organization. That report included this statement, which the Supreme Court found highly persuasive in striking down Nebraska's partial-birth abortion ban:

    ACOG declared that the partial-birth-abortion procedure "may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman." The Court relied on the ACOG statement as a key example of medical opinion supporting the abortion method.

Here is the shocking part: the ACOG report, as originally drafted, said almost exactly the opposite. The initial draft said that the ACOG panel "could identify no circumstances under which this procedure . . . would be the only option to save the life or preserve the health of the woman." That language horrified the rabidly pro-abortion Elena Kagan, then a deputy assistant to President Clinton for domestic policy. This is what Kagan wrote in a memo to her superiors in the Clinton White House:

    Todd Stern just discovered that the American College of Obstetricians and Gynecologists (ACOG) is thinking about issuing a statement (attached) that includes the following sentence: "[A] select panel convened by ACOG could identify no circumstances under which [the partial-birth] procedure ... would be the only option to save the life or preserve the health of the woman." This, of course, would be disaster -- not the less so (in fact, the more so) because ACOG continues to oppose the legislation. It is unclear whether ACOG will issue the statement; even if it does not, there is obviously a chance that the draft will become public.

So Kagan took matters into her own hands: incredibly, she herself appears to have written the key language that eventually appeared in the ACOG report. Coffin writes:

    So Kagan set about solving the problem. Her notes, produced by the White House to the Senate Judiciary Committee, show that she herself drafted the critical language hedging ACOG's position. On a document [PDF] captioned "Suggested Options" -- which she apparently faxed to the legislative director at ACOG -- Kagan proposed that ACOG include the following language: "An intact D&X [the medical term for the procedure], however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman."

    Kagan's language was copied verbatim by the ACOG executive board into its final statement, where it then became one of the greatest evidentiary hurdles faced by Justice Department lawyers (of whom I was one) in defending the federal ban. (Kagan's role was never disclosed to the courts.)

This is an image of Kagan's "suggested options" note; click to enlarge:  (also linked below)

SuggestedOptions10.jpg

The note does appear to be in Kagan's handwriting; you can see a sample of her writing here.

Unless there is some other interpretation of these documents that does not occur to me, it appears that Elena Kagan participated in a gigantic scientific deception. On behalf of the Clinton White House, she deliberately subverted what was supposed to be an objective scientific process. The ACOG report was certainly seen in that light by the federal courts. Federal Judge Richard Kopf was deeply impressed by the scientific integrity of the report; he wrote:

    "Before and during the task force meeting," he concluded, "neither ACOG nor the task force members conversed with other individuals or organizations, including congressmen and doctors who provided congressional testimony, concerning the topics addressed" in the ACOG statement.

This statement was obviously false. The federal courts were victimized by a gross deception and a perversion of both the scientific process and the judicial process, carried out, the evidence appears to show, by Elena Kagan.

http://www.powerlineblog.com/archives/2010/06/026643.php
http://www.powerlineblog.com/archives/assets_c/2010/06/SuggestedOptions10.php
http://www.powerlineblog.com/archives/2010/06/026648.php

[Crafty_Dog]

Wow.  Good stuff with the Questions for Kagan too.

[Rarick]

How well distributed is this?  Put in an e-mail to conservative side staffers? Show EXACTLY what kind of judge she would make as a person willing to blatantly alter a document?

[Crafty_Dog]

That sounds like a good and worthy idea to me.

[JDN]

Show EXACTLY what kind of judge she would make as a person willing to blatantly alter a document?

"blatantly alter a document".  You are implying she did something illegal?  That she falsified a document?

Agree or disagree with the issue of abortion, Kagan merely suggested wording (that was adopted word for word) to a rough draft report.
Kagan's language was copied verbatim by the ACOG executive board into its final statement.

The American College of Obstetricians and Gynecologists (ACOG) is composed of very bright individuals;
they chose voluntarily to incorporate Kagan's suggested wording into their executive summary.

[DougMacG]

It was the phony 'scientific' political advocacy group that altered the document. She, as an officer of the court, did not in good faith disclose to the court her role in writing their phony, altered conclusion.  Their original conclusion was a "DISASTER" for the legal argument she was making - that was HER description of it - and she kept the court from seeing it.

"Agree or disagree with the issue of abortion"

This isn't the issue of abortion. This isn't the blob that poster Rachel compared with sperm or embryos.  This is the most extreme fringe way out their at the end of the least protected trimester of the Court's bizarre and splintered previous ruling.  Late term 'little ones' are developed and ready to go, easier to deliver and rescue than to perform this murderous procedure which is abhorrent to any conscience-based moral being unless you lie as she did to the court about the reasons to say it is necessary.  The procedure was ILLEGAL in Nebraska.  That was the point of the case, using phony non-conclusions of non-scientific, misrepresentations, written by counsel but entered as expert scientific testimony, a fraud on the court, to try to keep Nebraskans from setting their own state law protecting innocent, developed, viable human life.

These memos were unavailable until now so whether she should just apologize or be jailed or disbarred is an issue that has not yet begun consideration or due process.

What we do know is that she shares the morals of her former boss Clinton, his national security adviser with the documents in 'the briefs' and has offended no one in the current administration with this smoking-gun revelation.  Makes me wonder what memos and emails were not yet disclosed.  I'm sure they didn't intend to let this one slip through in the document dump to the committee.

I wouldn't want anyone with her zero integrity view of our justice system on MY side of the arguments much less as lifetime appointment to advance political liberalism via the judiciary.  

[JDN]

It was the phony 'scientific' political advocacy group that altered the document. She, as an officer of the court, did not in good faith disclose to the court her role in writing their phony, altered conclusion.  Their original conclusion was a "DISASTER" for the legal argument she was making - that was HER description of it - and she kept the court from seeing it.

"It was the phony 'scientific' political advocacy group that altered the document"
You mean the "group" called the American College of Obstetricians and Gynecologists (ACOG) who approved and published this document?

As for "did not in good faith disclose to the court her role", Elena Kagan, employed as a deputy assistant to President Clinton for domestic policy had
no obligation to disclose to the court that she suggested alternative wording.  Her PDF document was titled, "Suggested Options".
The highly respected ACOG Executive Board voluntarily chose to adopt her suggested wording. 

"These memos were unavailable until now so whether she should just apologize or be jailed or disbarred is an issue that has not yet begun consideration or due process."
 

[Rarick]

Instead of printing a document that was originally printed by professionals who had passed college english, she chose to suggest better wording to allow for a political spin.  This is an honest action? I do not think so, especially when it allows for a decision opposite of what the panel/ study indicated was desireable.

[JDN]

Instead of printing a document that was originally printed by professionals who had passed college english, she chose to suggest better wording to allow for a political spin.  This is an honest action? I do not think so, especially when it allows for a decision opposite of what the panel/ study indicated was desireable.

I must admire your simple but honest (from the heart) approach to the law.  But that is not reality.  Or legality.  "Honest" among friends?  I understand your point. "Honest" before the law?  Sorry, Kagan's actions, as an attorney were "honest". 

That's attorneys.  Damn them if you want, but if you ever get in trouble, or truly need an attorney, you want one who knows the law AND is a good communicator; both written and verbal.

Someone posted a snide comment directed towards me, "does not see that counsel writing changed conclusions for witness entered into the court as expert scientific testimony and not disclosing that relationship to the court as perpetrating a fraud on the court." Yet with no substantiation; no facts or reference to the law; frankly that poster has no knowledge of the law.  Just they hate this particular counsel's opinion because counsel, on behalf of her client (that's her job) was in favor of abortion.

I have often been an witness in court.  I've prepared reports, and I qualify as one of those who "passed college english", but....  often times counsel
will suggest alternative wording.  That's counsel's job; to put the best spin (whatever you want to call it) on my report.  However, I am the one who signs my report; I am the one in court taking an oath; therefore IF I don't agree with counsel's suggestion, I politely ignore it or try to compromise.  It's a negotiation.  I am always open to suggestions; and better wording.  The legal process in general is a negotiation.  But it's MY report just like it was ACOG's report. Why do you think 90% of all cases either are negotiated before court date or in criminal cases plead out?  However, I decide on whether the "suggested wording" goes in my report.  My name, my reputation, just like ACOG's name and reputation is on the bottom of the report.  ACOG are a first class outfit; not some "phony scientific political advocacy group" like someone called them.   They are very bright, educated and capable individuals.  They were not duped; they understand English and medical issues.  They agreed with and published counsel's suggestions.

However, my point, whether I agree or disagree with counsel, he is just doing his best job for his client. If you were his client you would want the same.  And if
he was successful, do you want him taking credit in court?  No.   You simply want results within the law.

Someone posted "memos were unavailable until now so whether she should just apologize or be jailed or disbarred".  Well again poster does not know the law.
Poster is wrapped up in the concept that abortion is reprehensible; simply put there is no excuse in poster's opinion.  Perhaps so, but that has nothing to do with an attorney doing their job for their client.  Republicans, for various ideological reasons, some good and some bad in my opinion, oppose Kagan.  However none of them are calling for Kagan to be "jailed or disbarred" or are even implying that she should apologize.  Only poster seems to be riding Rocinante.

The law is rather straightforward.  And one's attorney's charge, within the confines of the law is to do the best job for their client.  That's all Kagan did.  Spin it how you want, attack my prevous (another subject) posts, but that's a fact.  She did nothing legally wrong nor should apologize, nor would she ever be "jailed or disbarred" for simply doing her job. I would love to have her as my attorney and so would you. If I could afford her, which I couldn't.

[Rarick]

THAT is why the Justice Sysytem is no longer functional as far as us regular citizens are concerned.  The law is what ever the lawyers can say it is even if it is clearly the opposite of what looks to be plainly written.  Beware of lawyer day changing to mean something else.........

[Crafty_Dog]

News From the Swamp: The Kagan Hearings
The Senate confirmation hearings for Supreme Court nominee Elena Kagan this past week were a glimpse into a pretty dim future for American jurisprudence. Kagan offered an obsequious and often glib performance over two days of softball pitches by Democrats and surprisingly light questioning by Republicans. She remained true to her featherweight legal background by deflecting most of the questions she received, and everyone, including the American public, walked away from the hearings just as clueless about her as when the whole charade began. Republican members of the Senate Judiciary Committee didn't help matters, because they refused to follow up on some important lines of questioning. They also didn't demonstrate any coordinated plan of attack for exposing Kagan as a doctrinaire leftist with no respect for constitutional Rule of Law.

Still, the clues about the real Elena Kagan are evident in her prior record, scant though it may be. She advised Bill Clinton to veto the partial-birth abortion ban, a bill that later became law and was upheld by the Supreme Court. In doing so, she even went as far as to manipulate the medical language of a statement from the American College of Obstetricians and Gynecologists to help protect the barbaric practice. Kagan also suggested that the Court should overturn the Solomon Amendment, which provides for the removal of federal funds for schools that deny recruiting opportunities to the military. The Amendment has since been upheld unanimously by the High Court. These two instances are indicative of just how out of step Kagan is with the jurisprudential requirements of the position to which she has aspired since her college days.

More troubling, though, is Kagan's embrace of trans-nationalism, the trend among lawyers and judges who believe that the U.S. Constitution and legal system should incorporate international and foreign laws and legal rulings. On Constitution Day 2007, when most of the nation's educational institutions were embracing an educational program on the U.S. Constitution, Kagan hired noted trans-nationalist Noah Feldman to speak to the Harvard faculty. Feldman has been a constant and vocal critic of the American legal system because it has not fully embraced international law to guide its jurisprudence. Because Democrats control 58 Senate seats, Kagan is likely to win confirmation with a couple of turncoat Republicans, but the Constitution, the Rule of Law, and the American public will pay heavily later.

[JDN]

her featherweight legal background

Agree or disagree with her politics, she is a brilliant woman; University of Chicago Law School Professor, Harvard Law School Dean, Solicitor General; she is very intelligent and a marvelous conciliator and manager. 
As to not having served as a judge, there is no such requirement.  For example...

John Marshall is widely revered as "the great Chief Justice," but before joining the Supreme Court in 1801 he had never served a day in judicial robes and lost the only case he argued at the high court.

Earl Warren had worked for 18 years as a prosecutor and was three times elected governor of California. But he had no prior judicial experience. Nor did William Rehnquist, Felix Frankfurter, and Louis Brandeis.

[G M]

Yeah, just like electing a president with no executive experience, it should work out just as well. Did she release her academic records, or are they a state secret like Obama's?

[DougMacG]

I assume this former surgeon general's motives will be impugned as mine were on this blatant manipulation of science and justice.

Excerpts from USA Today Letter:

"Ms. Kagan's political language, a direct result of the amendment she [wrote for] ACOG's
Policy Statement, made its way into American jurisprudence and misled federal courts
for the next decade."

"Ms. Kagan's amendment to the ACOG Policy Statement--that partial-birth abortion "may
be the best or most appropriate procedure in a particular circumstance to save the life
or preserve the health of a woman"--had no basis in published medical studies or data.
No published medical data supported her amendment in 1997, and none supports it
today."

"I urge the Senate to reject the politization of medical science and vote no
on the Kagan nomination."

C. Everett Koop, M.D., Sc.D.
Surgeon General of the United States Public Health Service, 1981-89

http://i.usatoday.net/news/pdf/koop.pdf

[JDN]

Doug, I mean no disrespect, and I personally am against partial birth abortion, however,
that being said, if it would save my wife's life, I would definitely consider it.  I think many would agree with me.

Where I am "confused" on this whole matter is that Kagan only "suggested" wording.  Somehow, she is being
falsely accused of fraudulently changing ACOG's (American College of Obstetricians and Gynecologists) wording. 
Remember, it was only a draft.  In fact she didn't "change" their wording; the esteemed ACOG themselves
changed their wording in their final report. ACOG (the experts) simply agreed with her suggestion and implemented her wording into the final document.

"They (ACOG) could think of circumstances in which it was the best or most appropriate procedure and that it was
the procedure with the least risk"

I'm not a doctor, and I know little about OBGYN, but I do trust ACOG.  As do I bet most doctors.  And as did the Supreme Court.

Further, she wrote this memo on behalf of her client/employer.  That's her job; her personal opinion may or may not differ.  Why
vilify her?

[DougMacG]

"if it would save my wife's life, I would definitely consider it"

Keyword is 'if'. I just posted a statement from an 8 year Surgeon General who like the organization in question wrote in definitive terms there is no instance known in all medicine or science where that is true.

'Suggested Wording': You wrote earlier about spin.  I say the two sentences have completely different meanings.  You have your right to your opinion, and me to mine, but if you can't see the difference in meaning between the two sentences, then you are another person I would not vote to confirm to the court.

That is not to "vilify" you.  That is to write my honest and heartfelt opinion in the forum.  I would still like to play squash with you, but I would not want someone with that view of twisted meanings to write what will become court precedent and the law of the land on any issue.

Kagan knew the difference in meaning between the two sentences; she wrote that the original one was a "disaster" for her cause and inserted a Clintonesque statement from the groups principles in it's place, that that decisions about medical treatment must be made by the doctor, in consultation with the patient, based on the woman’s particular circumstances.  But it was the original conclusion that answered definitively the question before the court, there never has been an instance...

Her client was not Billl Clinton the person with ties and debts to pro-abortion interest groups or a person accused of rape deserving his rights - in this case.  Her boss is the office of the Presidency, the interests of justice, and her paycheck was drawn on the U.S. Treasury. She was not to my knowledge ever hired or paid by the medical group in question.  The judge in this case deserves to know where the line between expert testimony ends and where the lawyering and spinning begins.  In this case that was manipulated and withheld.

Her suggestion was two-fold.  An attempt to withhold from the court the conclusion that NEVER has this procedure been necessary, a lie by omission and a disservice to justice. In fact, they left that in but not as the conclusion.  Second, to add in a false MAY BE NECESSARY insinuation to create confusion and obstruct clear thinking from those who will rely on it as an expert finding.  See citations below.

I don't know what it would take to offend you with a false 'may have' statement.  I may have caused your wife's illness. I may have fathered your children while you were away at work.  But I didn't. 

You are correct that the responsibility for the changes intended to mislead the court lies with the group who agreed to them with falsely claimed authorship, and shame on them, but as an officer of the court she was more than aware of that and now is caught steering away from truth and justice, and the court relied on it. 

Ginsburg wrote later: "a procedure found necessary and proper in certain cases":   No it wasn't!!! That was Kagan's false inference. 
[Justice  Ginsburg’s dissent in Gonzales v. Carhart cited ACOG more than half a dozen times. The first citation, in the introduction to her opinion, decried the majority for disregarding ACOG’s opinion: “Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG).” http://corner.nationalreview.com/post/?q=NDk3YjRlZjYzMDczOWExMWQ4M2ZlNDhjODdhMThjMDI= ]

I might agree that the lie by omission from the real conclusion, buried instead elsewhere in the report, and the lie by irresponsible false inference, even taken together, are too vague and Clintonesque to prosecute for suborning perjury, but that doesn't mean I would want her confirmed to a lifetime appointment to the highest court in the land.

[Rarick]

Partial birth abortion is where the baby has already "crowned" and has all but finished the last "squeeze" of being born, from what I understand.  If a "life at risk" mom hasn't already died at that point, she would survive for the rest, unless there is some rare diesease about the aftermath.........

I would expect an adult responsible for a child would make a decision long before that point, and live with it as an adult always lives with not so good decisions. lessons learned and all that.

[Crafty_Dog]

Tangent:

BTW, amidst his innumerable "present" votes while an IL legislator, BO voted for a remarkably extreme partial birth abortion law.  Anyone have details at hand?

[DougMacG]

"BO voted for a remarkably extreme partial birth abortion law.  Anyone have details at hand?"
--------------
Just to the left of NARAL and Barbara Boxer, he voted against protecting the surviving babies of botched abortions.  His reasons to oppose do not match the facts told by the people on his committee in IL.

The Born-Alive Infants Protection Act (BAIPA) both in the Illinois and Federal legislatures was meant to make illegal death by neglect of born but unwanted infants.  Or as Obama called it: Restrictive Choice legislation.

At the end of the hearing (IL Senate Health and Human Services Committee, 2003, Barack Obama, Chairman), according to the official records of the Illinois State senate, Obama thanked Stanek (video of RN Stanek below) for being “very clear and forthright,” but said his concern was that Stanek had suggested “doctors really don’t care about children who are being born with a reasonable prospect of life because they are so locked into their pro-abortion views that they would watch an infant that is viable die.” He told her, “That may be your assessment, and I don’t see any evidence of that. What we are doing here is to create one more burden on a woman and I can’t support that.”
http://www.humanevents.com/article.php?id=18647

Video of the testifying nurse:
http://www.youtube.com/watch?v=BYRpIf2F9NA

One mainstream reference from when Hillary was the frontrunner:
http://www.cbsnews.com/stories/2007/01/17/politics/main2369157.shtml
 SPRINGFIELD, Ill., Jan. 17, 2007
Obama Record May Be Gold Mine For Critics
(AP)  Democratic presidential candidate Barack Obama may have a lot of explaining to do.
He voted against requiring medical care for aborted fetuses who survive.

Barbara Boxer voted for it when it passed unanimously in the U.S. Senate 98-0 and unanimously in the US House.  She said:  "(H)is amendment [Rick Santorum introducing BAIPA] certainly does not attack Roe in any way," said Boxer. "His amendment makes it very clear that nothing in this amendment gives any rights that are not yet afforded to a fetus. Therefore, I, as being a pro-choice senator on this side, representing my colleagues here, have no problem whatsoever with this amendment." - Barbara Boxer on the floor of the senate, 2001.

[Rarick]

http://www.wnd.com/?pageId=187797

Kagan was involved as Solicitor General at the time questions about Obama's birth were raised.  She is also involved in the DISCLOSE act.........

She had been approved too...........

[DougMacG]

I would love to eat my words on this.  Maybe she will grow from who she is to being a serious interpreter of the law.  But she got there without any indication of it. What I hoped from this process is that from the conservative questioners people would get an idea of how a great justice would approach the job.  I never had an opportunity to watch, listen or read the proceedings.  Unfortunately I don't think anyone else except a few insiders did either.  So on we go with another lifetime appointment of someone committed to uphold liberal programs and causes no matter what the words of the framers specifically say.  The only good thing that happened was that the opponents didn't at all hold up the choice of the President or the vote of the majority as required by the constitution.  Maybe that will pay off someday soon when the tables politically are turned.  - Doug
-------
http://www.powerlineblog.com/archives/2010/08/026931.php
August 5, 2010 Paul Mirengoff

The Senate has confirmed Elena Kagan. The vote was 63-37. Five Republicans joined every Democrat except Ben Nelson to vote "yes." The five Republicans were, as expected, Senators Snowe, Collins, Graham, Gregg, and Lugar.

The "no" vote tally was pretty high -- up from 31 in Sotomayor's case -- but there's really no way for conservatives to put a positive spin on Kagan's confirmation.

To get a sense of what it means, think of the three big constitutional decisions rendered by district courts in the past week or two. They are: (1) Judge Bolton's grant of a preliminary injunction blocking key portions of Arizona's immigration enforcement law, (2) Judge Hudson's ruling permitting the Commonwealth of Virginia to proceed with its lawsuit challenging the portion of Obamacare that requires individuals to purchase insurance, and (3) Judge Walker's outrageous ruling that California's Proposition 8, which bans gay marriage, is unconstitutional.

If these matters reach the Supreme Court, as seems likely, I have no doubt that Kagan will side with those who challenge the Arizona immigration law and Proposition 8, and with the government in the case of Virginia's challenge to Obama care. But that's just the tip of the iceberg -- probably less than one year's worth of bad jurisprudence. Kagan is only 50 years old, so we can expect at least 25 years of the same sort of leftist assault on our traditional freedoms and the rights of our states.

The only way Kagan's confirmation doesn't become a disaster is if we are able to elect Republicans presidents pretty consistently during the next 22 years or so, starting in 2012, and thus can keep Kagan busy writing dissents.

[prentice crawford]

Activist #SCOTUS. Federal Government regulations trumps Bill of Rights. http://start.toshiba.com/news/read/category/US%20News/article/afp-us_top_court_rules_straw_gun_purchases_are_illegal-afp …

Washington (AFP) - The US Supreme Court ruled Monday it was illegal to buy a gun on behalf of someone else who did not go through the background check.

The ruling comes on the heels of a spate of US shootings that have again sparked debate over gun control, with President Barack Obama calling for national "soul searching" over gun violence.
The top court ruled five to four against a former Virginia policeman, Bruce Abramski, who made a so-called "straw purchase" of a handgun for his uncle, who was in Pennsylvania.
Although both men were legal gun owners, Abramski had indicated on a federal form that he was the gun's actual buyer.
During the January 22 oral arguments, Abramski's lawyer, Richard Dietz, contended the transaction was legal because the men's legal and mental background allowed either of them to purchase a firearm.
But justice Elena Kagan responded at the time: "It doesn't matter if the ultimate transferee is Al Capone or somebody else."
"The purpose is to take away guns from (persons with) mental illnesses."
Kagan responded again Monday in giving the court's majority decision, summarizing the opinion of the court's four progressive justices alongside more conservative justice Anthony Kennedy, who has often been a swing vote.
"No piece of information is more important under federal firearms law than the identity of a gun’s purchaser," Kagan emphasized, saying it was "fundamental to the lawfulness of a gun sale" to respond truthfully on the federal form.
But in their dissent, the four more conservative judges said it was enough that the buyer and the eventual owner were both legally eligible to own guns.
This is the second Supreme Court ruling this year on gun control issues. In March, the court upheld a federal law barring anyone convicted of even a minor domestic violence charge from ever owning a gun.

                                 


                                    P.C.