Conservatives: 4½ Justices Good Enough For Us!

President Obama called arguments against Supreme Court Justice nominee Elena Kagan’s confirmation “pretty thin gruel.”

That’s funny—I call no judicial experience and scant, conflicting legal theorizing in print “a short stack of hotcakes.”

We know little of Kagan’s judicial philosophy—and may know even less after her hearings this week if she has any say in the matter—but what little we know isn’t to like.  In fact, it’s enough to hold our noses at.

Kagan wrote in her master’s thesis at Oxford that “[J]udges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends.  Such activity is not necessarily wrong or invalid.”  Years later, when challenged on these remarks, she brushed them aside, claiming she was just a “dumb” 23-year-old at the time.  (Question: Was Obama just a dumb 45-year-old when he was still attending Reverend Jeremiah Wright’s racist sermons at Trinity United Church of Christ?)

Kagan once paraphrased her boss Supreme Court Justice Thurgood Marshall’s view that interpretation of the Constitution “demanded that the courts show a special solicitude for the despised and disadvantaged.”  Great!  Does that mean she’s on the side of corporations (the despised) and inner-city residents who want to protect themselves with handguns from break-ins (the disadvantaged)?

That’s probably a no on corporations, since as Obama’s solicitor general Kagan argued the losing position in the Citizens United v. Federal Elections Commission (2010) case.  Kagan argued that corporate-sponsored pamphlets and posters could be banned before elections, because they violate campaign finance regulations.  She also claimed with a straight face that it was OK to ban books containing endorsements of candidates for public office before elections, because the FEC won’t actually enforce the ban.

Some have argued that the stances Kagan has taken as solicitor general reveal nothing about her personal views, because she is required by her job to argue the government’s position.  Yes, but was she required to accept jobs clerking for Marshall, strategizing for President Bill Clinton, and shilling for President Barack Obama?  Is it unfair to intuit that she’s a bit more comfortable implementing the visions of these liberal lions than she would be, say, clerking for Clarence Thomas?

When Obama nominated Kagan for the post of solicitor general, he boasted that she had chosen Citizens United as the first case she wanted to argue if confirmed.  So I think it’s safe to say that many of Obama’s predilections are near and dear to her heart.

And that’s probably a no on guns, since as Marshall’s assistant decades ago Kagan urged him not to hear a Washington, D.C. resident’s appeal of his conviction for owning an unlicensed handgun.  When the defendant argued that the D.C. gun ban violated his Second Amendment rights—a decision, by the way, upheld by the Supreme Court in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010)—Kagan snippily replied, “I’m not sympathetic.”

Weak-kneed conservatives keep telling us we should be quiet and support Kagan’s nomination (which is exactly what they said about Sonia Sotomayor’s nomination last summer), because she’s only replacing another departing liberal, Justice John Paul Stevens (which is exactly what they said about Justice David Souter last summer).  OK, but since when did conservatives’ Supreme Court standard stop aiming for 9 defenders of the Constitution and start settling for 4.5?

Former Wall Street Journal assistant managing editor Tunku Varajaradan gushed that in the opening statement of Kagan’s hearings she spoke “with a face that was tilted at an appropriately deferential angle, and with a voice that betrayed—to my delight—the vowels of Manhattan’s Upper West Side.  (She sounded, let us say, like a wise Ashkenazi woman.)”  That and five originalists will get you a constitutional decision!  To Kagan’s credit, at least bloggers haven’t unearthed speeches in which she announced that better rulings would presumably be made by a wise Ashkenazi woman than a Gentile man.

The RINO herd keeps telling us we shouldn’t oppose Kagan, because then venerated liberals will paint us as stubborn and argumentative.  These are the same liberals, you will remember, who last year called town hall protestors racist, two-year-old teabaggers for opposing ObamaCare.

As gratifying as D.C. v. Heller, Citizens United, and McDonald v. Chicago were, here is why conservatives must oppose Kagan’s confirmation: because we can’t afford any more such 5-4 nail-biters, to say nothing of epic disasters we have surrendered like Rasul v. Bush (2004), Kelo v. City of New London (2005), Hamdan v. Rumsfeld (2006), and Massachusetts v. EPA (2007).