When President Obama announced his nomination of Elena Kagan to the Supreme Court, Joe Biden thankfully spared the nation another muttered profanity (there was no boasting about a “big f-ing big deal,” though surely it was). The rest of the country is suppressing its own outburst, for the selection of Kagan takes beltway cynicism to a new low, which is saying a lot in a city where some claim a massive health-care entitlement will reduce the deficit.
Obama selected a Supreme Court nominee with zero judicial experience and virtually no background as a litigator. Realizing her liabilities, he and his allies substitute biography for experience, pushing the myth of the girl from Manhattan who challenged her rabbi as a teenager and blazed a trail for women in a man’s world, all while displaying a “nurturing Jewish mother” side. The New York Times assures us Kagan is a “pragmatist” and a “consensus-builder.” Harboring any doubts? Well, as dean she renovated the gym, opened a skating rink, and improved women’s restrooms at Harvard Law School. So there!
One wonders if Obama thinks anyone actually believes this nonsense. He claims he chose Kagan because she understands how the law affects “ordinary people.” You know, like the folks on the Upper West Side, at blue-chip law firms, and in Harvard Yard. No, there is nothing ordinary about Elena Kagan.
The real reason behind the Kagan pick is to provide an aggressively liberal and self-consciously intellectual counterweight to Chief Justice John Roberts. Obama, a former law-school lecturer, clearly loathes Roberts. In an astonishing breach of etiquette, he denounced the Roberts court’s decision in the Citizens United case, which legalized express advocacy by corporations, at his State of the Union address, the justices seated before him like schoolchildren being scolded. By selecting the solicitor general who argued the government’s brief (her first-ever appearance before the Court) and lost, Obama has set the stage for a rematch of intellects that will likely last for decades and affect every facet of American life.
For all the attempts by the liberal fog machine to obfuscate her extremist views, Kagan is a committed liberal. Her attempt to defy federal law — reversed by the Supreme Court — by banning military recruiters from Harvard’s law school during a time of war is only the most well-known example of her radical views. Her belief that political speech is selectively protected by the First Amendment based on the form of media used to express it is more frightening. (One of her few scholarly articles in a thin academic resume defends the right of the government to regulate “hate speech.”) Nor is her belief in strictly constraining constitutional liberty confined to the First Amendment. In response to questions during her confirmation as solicitor general, Kagan argued the Second Amendment right to keep and bear arms, like freedom of speech, enjoys “strong but not unlimited protection.” This is a dangerous view of the law when it leads to the creeping erosion of the Bill of Rights.
The pundits are united in stating that Kagan’s confirmation is virtually assured. Given the math in the Senate, that is the conventional wisdom. But Supreme Court nominations are funny things, as previous presidents have painfully discovered. Conservatives should unite in strong and principled opposition to Kagan’s nomination, making clear their contrasting judicial philosophies, and let the chips fall where they may — not only on this vote, but when the voters go to the polls in November.