Justice Kagan

I am devastated that President Obama nominated Elena Kagan to the high court, and I am an unabashed, lifelong liberal. But I am also a lawyer, and, in that capacity, I have to tell you that this Supreme Court is the most far right wing tribunal in the history of the institution. As such, it has been in desperate need of the addition of one or more liberal firebrands. And that description does not fit Elena Kagan. Not even close. The best we can possibly hope for is that she will be a centrist, kind of like Justice Sotomayor, and hopefully not lean rightward. Why is this Supreme Court so bad? Because for the last 42 years, every Republican President (except Ford) has tried his hardest to appoint far right wing idealogues to the court while both Democratic Presidents (Clinton and now Obama) have appointed centrists. [Unfortunately, no vacancies arose during Jimmy Carter's term.]So it is hardly any wonder that this court is tilted so far to the right. It hasn’t seen a true liberal jurist since Justices Brennan and Marshall retired. With an unusually large Democratic majority in the Senate, President Obama had the ideal situation during these last two years to counteract some of the right wing extremism on the court, and, in my opinion, he has completely wasted it. And everyone whom I have heard speak on the subject has expressed their conviction that the Democrats will absorb a substantial beating this coming November. So the opportunity to put a couple of staunch liberals on the court to counterbalance at least some of the right wing demagoguery is about to evaporate. During these last four decades, turning the court into a right wing think tank has simply been a far more important objective for the Republicans than trying to restore some of the court’s pre-1980 glory has been for the Democrats. Tell me: What are the chances that the current court would decide Brown v Board of Education the way the Warren court did 56 years ago? Yep … zero. All of the right wing blather about “activist judges” is simply nonsense. Every judge who has ever donned his or her robes has been an “activist” because every judge brings their own world view to the bench when they arrive. What the right wing has really been complaining about is “liberal activist judges.” And, of course, now we are seeing what happens when the court is dominated by “conservative activist judges.” In fact, of the hundreds of Supreme Court cases that I have read, without a doubt, the most “activist,” intellectually dishonest, result-oriented decision of them all is Bush v Gore. President Obama had a golden opportunity to at least begin the laborious process of moving this court back toward the center. But, not only did he not even attempt to do that, but what he did is worse than most people know: Justice Sotomayor and soon-to-be Justice Kagan are BOTH to the right of the retiring justices that they are replacing. Justice Stevens was the most “liberal” justice on the court for years. (I put “liberal” in quotes because even he was not a true liberal. He was a slightly left of center moderate with an abiding concern for civil liberties who merely seemed like a liberal because of the degree of distance between him and the right wing idealogues on the court. Justice Souter became the conscience of the court in his later years, often lambasting the right wing majority for obviously unfair, unjust decisions that they have consistently issued in favor of big business and the government and at the expense of ordinary Americans. The oft repeated, right wing assertions that “judges shouldn’t make law” are just wrong. Who should really make law? Well trained, theoretically outstanding and brilliant judges who are immune from political pressures? Or legislators who spend the majority of their time raising money and who often wind up taking residence in the pockets of corporate donors? Having practiced law for 37 years, there is not a shred of doubt in my mind that President Obama’s adherence to his ethereal goal of “bipartisanship,” instead of adopting George W. Bush’s confrontational approach that left us with Chief Justice Roberts and Justice Alito, will result in many, many outrageously unjust opinions for decades to come. The President should have employed one, and only one, litmus test when deciding on judicial appointments: Any nominee who is palatable to a significant number of Republican Senators should be forthwith eliminated from consideration. But, unfortunately, our president wants to accommodate the party that obstructs everything he tries to do, the party comprised of people who call him a “socialist” and the reincarnation of “Hitler”; the party whose titular “leader” has vocally expressed his desire to see the President “fail”; the party of a Senator whose only approach to proposed legislation is to try to derail the President’s agenda so that Mr. Obama meets his “Waterloo.” And unfortunately, before it’s all over, every one of us will pay dearly for the President’s capitulation and his tilting at windmills.