Cowboy Confessional

The only person more dangerous to freedom than a sitting president is whomever he appoints to the Supreme Court.  After all, president’s have term limits.  We can theoretically impeach a Supreme, but it is damn difficult.  Hence, a free people must keep certain individuals off the bench and out of robes (except for Ruth Bader Ginsburg – she needs to remain clothed).

Which brings us to the unacceptable submission of Elena Kagan.  We can dismiss her gravitas for a seat on the highest court given her lack of validatable decisions.  Smart as she is alleged to be (which is nonsense as we will see momentarily), having never served as a judge means she served-up no judicial opinions.  Thus The People have nothing solid on which to evaluate her ability as a lower-caste jurist and thus her ability to protect the Constitution, the freedoms of Americans or even if she looks good in a robe (I retain doubts about her visual desirability disrobed).

Keep in mind that she accepted a job in an administration that will last no longer than Jimmy Carter’s, so her judgment skills are already proven deficient.

But we do have her limited work as Solicitor General to review.  For those unacquainted with the mechanics of the monstrosity called constitutional law, the Solicitor General (not to be confused with generals who solicit) represents the alleged position of the United States government when arguments are hurled at the Supreme Court … which is the United States Government.  The SG is appointed by the President and rarely represents anything but the president’s opinion, though that occasionally agrees with the opinion of congress and even more rarely that of The People.

Yes, the game is rigged.

Kagan filed briefs in U.S. vs. Stevens, a nasty affair involving dog fighting and free speech.  Distasteful as they be, the most vile members of society often test and confirm constitutional rights.  Larry Flint argued that Hustler magazine was a form of protected speech and thus made sure every adolescent male could ogle photos of panty hamsters.  Thus in U.S. vs. Stevens the First Amendment was tested again over something more degenerate than Hustler, though the mind boggles at the very prospect.

In Kagan’s brief to the Supremes, she wrote in part:

“Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs” [emphasis clearly not hers]. In her words court watchers hear echoes of Breyer the Senile from his dissent in the Heller gun control case where he waxed ineloquently about a non-existent judicial power to balance enumerated rights with perceived societal “costs.”

What Kagan argued is that judges have the domain to determine what (if any) balance should be struck between a right of The People and the power of the state.  The Constitution is silent on this subject (i.e., The People who ratified the Constitution never granted courts that power) which means that Kagan has already driven off the road of reason and into the rhetorical weeds. There is also the annoying aspect of regulating any right.  As the old law school song would go (if any J.D. candidate had lyrical skills) “How can a right be regulated and not be wrong?”

Aside from the huge sticking point of the judiciary not being granted the power to make such decisions, the other insurmountable obstruction (and one that I devote an entire chapter to in my next book, Catalog of Canards) is that “cost” is a malleable concept.  Some interpret social costs to be direct financial costs to individuals.  Other folk think it is out-of-pocket government expenses including welfare, indigent medical care and congressional bourbon therapy.  Berkeley residents still riddled with psilocybin from their last Grateful Dead road trip perceive more spiritual expenses before subsequent hallucinogenic experiences overtake them.  The definition of social costs is as precise as that for “assault weapons”, both definitions being as narrow as nuclear weapon target diameters.

Quantifying social costs is impossible.

So put yourself in a judge’s robe and picture being so delirious that you believe you have the authority to identify a balance between rights and “costs.”  Where do you begin?  Costs, a concept as solid as Jell-O, has too many parties, angles and elements to measure.  Thus it becomes a judgment call, and judgment is always biased.  Since Kagan comes from the statist klan, we know which side of the scale she’ll lay her finger.

For those issues that the Constitution permits government intrusion into private affairs (which at the federal level is a short, clearly enumerated list) Congress was given the authority to find balance, not the courts.  Kagan professes that the power given to elected officials (who we can fire more easily, or in joyful moments decorate with tar and feathers) be usurped by unelected judges.  Further, given the broad role judges have assumed, they could attempt balancing acts on items over which the Federal government has zero jurisdiction.  In short, Kagan professes to become the conscious of the people and the arbitrator or everything.

The syntactic similarities between arbitrator and traitor may be pertinent here.

Reading further into Kagan’s brief, we see the disturbing instance where she defends indefensible law because it allegedly stops “the erosion of important public mores.”  I love reading this passage to my gay friends and noting that conservatives made the same claims about California’s Proposition 8 which banned gay marriage.  Thus Kagan is intellectually aligned with those who believe that individual rights are subject to majority morality (which is one semantic step away from her being a member of the Moral Majority).  She is confirming my oft spoken observation that there is not a dimes worth of difference between hard-left liberals, hard-right conservatives, and your garden variety jihadist:  they all seek to control their neighbor’s non-destructive behavior.  The liberals have Kagan, the conservatives had Falwell and the jihadists have bombs.

Come to think of it, liberals used to have bombs too.

Let us not waste time on a Senate confirmation process since Kagan has already confirmed her lack of understanding about the express written will of the American people as well as her proffered role therein.

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This entry was posted by Guy Smith on Friday, June 11th, 2010 at 10:36 am and is filed under Constitution, Law. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.