And So I Go: Yesterday, Today and Tomorrow

Elana Kagan

Posted on: May 12, 2010

This post and the next one I have stolen from other bloggers.  But my readers all know that I am a lazy Old Broad who will take something I think is good to bring it to them.  This post is from   my dear friend   Joe Guarino and is a series of comments by knowledgeable people  Joe  has taken from the National Review Online.  This and the next post from another blogger should give you the information you need to determine  the qualifications of probably the person who will be the next judge appointed to the Supreme Court.

Kagan’s appointment will be a misfortune for our nation.   Then again as I said on Joe’s site:  “Joe, I am still wading thru National Review today, so thank you for picking out these salient points concerning Kagan. The only thing that I can see as good about her appointment is that if Obama and his communist friends here and around the world have their way then the Supreme Court will soon be abolished. In point of fact, I believe it is the policy with Marxist governments to round up all the intellectuals who have supported them and place them in a mass grave. BB”

Be sure to read all the comment also.  Some very intelligent and insightful people visit Joe’s blog.  BB

Elena Kagan


Gerard Bradley:

Her lack of judicial experience and the paucity of her scholarship are not assets for the job. But they are not disqualifying. Neither does it matter if she is a lesbian, save insofar as her sexual orientation (whatever it is) may relate to (as cause or effect of) her convictions about the meaning and nature of marriage. These convictions matter a great deal to her qualifications. And they point to grounds for opposition to her…

Anyone who believes that the Court in Roe v. Wade misread the Constitution and, in so doing, exposed unborn persons to murderous acts should require Kagan to state that she believes that Roe was wrongly decided. In light of the grave injustice that Roe unleashed upon our land, she should further be required to say that Roe lacks legitimacy, and that it should be overruled at the first appropriate opportunity.

The second matter is marriage. Kagan is on record as saying that traditional marriage laws lack a “rational basis.” This is tantamount to saying that she would read the Fourteenth Amendment to mandate same-sex marriage across the land. If Kagan is permitted to act on these views, she would participate in a social revolution as momentous as that delivered in Roe. This one, too, would alienate most Americans from the Supreme Court, even from the Constitution itself. It would be another institutional disaster piled on top of a grave injury to the common good.

Todd Gaziano:

Our central focus should be to expose Kagan’s troubling, subjective standard of judging, namely that the high court exists primarily to look out for the “despised and disadvantaged.”

Wendy Long:

The opposition — i.e., the defenders of limited government and our written Constitution — needs to start talking right away about Kagan’s view, shared by her old boss Thurgood Marshall, that the U.S. Constitution was “defective” from the start.

Charmaine Yoest:

Solicitor General Elena Kagan’s record includes an affiliation with hard-line pro-abortion organizations. Kagan has contributed money to a pro-abortion organization, the National Partnership for Women and Families, which lists as one of its major goals to “block attempts to limit reproductive rights.” We all know that this refers to abortion. But, somewhat atypically, they go on to make their agenda explicit, stating that their objectives include: “to give every woman access to . . . abortion services”…

Through her association with this group and articles she has written, Kagan has staked out a clear position of active support for unrestricted abortion.

Maggie Gallagher:

Kagan waded into the Defense of Marriage Act (DOMA) case, amending a brief that offered “responsible procreation” as a reason for DOMA to instead explicitly reject procreation and child wellbeing as a reason for defining marriage as one man and one woman — undermining the law she claims to be defending. We’ve seen this tactic in state litigation before: Attorneys general pretend to defend the marriage law but sabotage the case by explicitly rejecting procreation as a reason for marriage. (See Jerry Brown in California.)

If you doubt my reading of Kagan’s record, see the Human Rights Campaign’s press release, which specifically cites her support for “marriage equality” in cases before the Supreme Court as a reason for voting for her.

HRC and Maggie Gallagher agree: A vote for Elena Kagan is a vote for finding a constitutional right to gay marriage that will overturn marriage laws in every state.

Ed Meese:

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.”

Doug Johnson:

Ms. Kagan may have betrayed a possible personal animus towards the pro-life movement in a 1980 essay lamenting Republican gains in the 1980 election, in which she referred disparagingly to “victories of these anonymous but Moral Majority-backed [candidates] . . . these avengers of ‘innocent life’ and the B-1 Bomber . . .”   Was Ms. Kagan so dismissive of the belief that unborn children are members of the human family that she felt it necessary to put the term “innocent life” in quote marks, or does she have another explanation?  Would she be able to set aside any animus she has towards those who fight to protect innocent human life, when reviewing laws duly enacted for that purpose?

Ed Whelan:

Kagan’s exclusion of military recruiters from the Harvard law school campus promises to draw considerable attention precisely because—as Peter Beinart, the liberal former editor of the New Republic, has written—it amounted to “a statement of national estrangement,” of Kagan’s “alienating [her]self from the country.”  In her fervent opposition to the Don’t Ask, Don’t Tell law and the Solomon Amendment, Kagan elevated her own ideological commitment on gay rights above what Congress, acting on the advice of military leaders, had determined best served the interests of national security.  At a time of war, in the face of the grand civilizational challenge that radical Islam poses, Kagan treated military recruiters worse than she treated the high-powered law firms that were donating their expensive legal services to anti-American terrorists…

Kagan has indulged her own ideological views in the one area, gay rights, in which she has been vocal:  as law school dean, Kagan embraced an utterly implausible reading of the Solomon Amendment, and as Solicitor General, she has acted to undermine the Don’t Ask, Don’t Tell law and the Defense of Marriage Act that she is duty bound to defend.


Elaine Donnelly:

Pres. Barack Obama has chosen to replace the only military veteran on the Supreme Court with extensive wartime experience* with a nominee whose only significant record indicates hostility and opposition to laws protecting the culture and best interests of the American military.

Posted at 11:36 AM | Permalink


By Ken Klukowski
“President Obama needs a Supreme Court that will rule that the Constitution allows the federal government to impose Obamacare’s individual mandate, ordering Americans how they must spend their own money. He needs a Supreme Court that will allow him to impose job-killing cap-and-trade and card-check rules through executive action, instead of legislation. He needs a Supreme Court that says you have a right to same-sex marriage—which the Constitution does not mention—but that you do not have a right to own a gun—which the Constitution explicitly mentions in the Second Amendment.
In short, President Obama needs a Supreme Court that will endorse his far-left vision for America. As we show in “The Blueprint,” much of Obama’s agenda is unconstitutional. It cannot survive unless he creates a Supreme Court in his own image, with justices who share his vision.
President Obama firmly believes he has found such a justice in Elena Kagan.”

Posted by: jaycee | May 11, 2010 at 12:22 PM

Ken Hill

Joe, an impressive collection of comments.

Posted by: Ken Hill | May 11, 2010 at 12:55 PM

Joe Guarino

Jaycee, thanks for a great excerpt from Klukowski’s article.

Ken, all of these came from National Review’s on-line presence, including its Bench Memos blog. They do a great job of assembling a high level of commentary in a very brief period of time.

Posted by: Joe Guarino | May 11, 2010 at 01:32 PM


“Joe, an impressive collection of comments,” writes Ken Hill above, commenting on a post that begins with “Her lack of judicial experience and the paucity of her scholarship are not assets for the job.”

Two weeks ago, Ken Hill on NC Court of Appeals candidate Steven Walker: “When one considers experience, specified length of experience may not be all that significant.”


Posted by: Roch101 | May 11, 2010 at 02:00 PM

Joe Guarino

The excerpt goes on to say that Kagan’s lack of experience is not disqualifying. Some observers have made a big issue of Kagan’s lack of judicial experience, but I have not.

We need to recognize, however, that the US Supreme Court is at least a couple of rungs higher on the totem pole than the NC Court of Appeals.

Posted by: Joe Guarino | May 11, 2010 at 02:04 PM

Ken Hill

The gleaned comments contain far weightier issues than just experience or the lack thereof. Has Roch detailed analysis to offer of every sentence of those?

Posted by: Ken Hill | May 11, 2010 at 02:36 PM


Sorry, Ken, no analysis beyond the observation of your situational standards.

Posted by: Roch101 | May 11, 2010 at 02:50 PM

Ken Hill

Roch could not get past the first line. Ignored the second line. My remark was directed at the collection in it’s entirety. The word “collection” is in the dictionary, one of which can can be found at the public library.

Posted by: Ken Hill | May 11, 2010 at 03:16 PM


“Hypocrite”..(Roch101) Who is this Roch101? Just another liberal that can only name call when someone disagrees with his hippie views?

Posted by: Lugnut | May 11, 2010 at 03:21 PM


Ken, as we all know by now, this is typical of Roch’s hit and run ridicule attacks. He brings no analysis or throughts to the game, only his Alinsky snipe tactics designed to irritate and goad others into a reaction. His usual tactic is described as : “According to Alinsky, the main job of the organizer is to bait an opponent into reacting. “The enemy properly goaded and guided in his reaction will be your major strength.”

Posted by: Stormy | May 11, 2010 at 04:30 PM

Brenda Bowers

lugnut, Please excuse and overlook Roch101’s presence on this and other meetings of fairly intelligent people. You see he has assumed the position as Court Jester at these gatherings. BB

Posted by: Brenda Bowers | May 11, 2010 at 06:43 PM

Brenda Bowers

Joe, I am still wading thru National Review today, so thank you for picking out these salient points concerning Kagan. The only thing that I can see as good about her appointment is that if Obama and his communist friends here and around the world have their way then the Supreme Court will soon be abolished. In point of fact, I believe it is the policy with Marxist governments to round up all the intellectuals who have supported them and place them in a mass grave. BB

Posted by: Brenda Bowers | May 11, 2010 at 06:50 PM

Ken Hill

In the film Dr. Zhivago, Zhivago returns to the former family home to find it dingy, cold and crowded after the Bolshevik Revolution. Conditions portrayed in the film mirror those reported by Ben Haden in his 1963 book “I See Their Faces” about life in the Soviet in the early 1960’s. Not from that worthwhile book, but one notable quotation: “A Communist Party official of the Soviet Union, justifying the Bolshevik destruction of Tsarist Russia, told a foreign observer, `If you want to make an omelet, you’ve got to break some eggs.’ The visitor replied, `I see the broken eggs, but where’s the omelet?’ ” The result of the Obama plan, especially Cap and Trade, will have similar conditions in the USA. Kagan will be a significant player in the process.

Posted by: Ken Hill | May 11, 2010 at 06:51 PM


Isn’t Joe’s steadfast politeness in the face of having one particular anal-retentive, passive-aggressive commenter track mud or worse on his carpet every day remarkable? It is something that I could never hope to emulate so I don’t even try. It would require surgical pithing of my amygdala to even come close and I’ve heard that’s something you should never try at home.

Posted by: cheripickr | May 11, 2010 at 06:59 PM

Brandon Burgess

I guess I am allowed to be concerned about Kagan’s apparent lack of judicial experience (though we seem to share the same values in some respects) since I had nothing to say about Walker. Is this a legitmate concern now, Roch? I don’t think the Supreme Court, Congress, or President/Cabinet is a good place to gain experience. We should have the best of the best seeing as how rulings, legislation and executive orders kind of shape the way we do things in America.

Posted by: Brandon Burgess | May 11, 2010 at 10:50 PM


One must remember just what SCOTUS Justices do:
They do not hear testimony from witnesses.
They do not hear testimony from victims.
They do not hear testimony from defendants.
They do no judge truthfulness of testimony or reliability of witnesses.
They do not view or weigh evidence in a case.
They do not decide the facts of the case.
They do not decide guilt or innocence.

Their sole job is to decide the constitutionality of a decision by a lower court.

Sympathy, empathy, a “feel” for being poor, class-challenged, gay, a minority, or what have you–this has NO bearing on interpreting whether a judicial decision was within the framework of the Constitution. By design the Supreme Court review process is disassociated from the human element of the lower court proceeding because the Supreme Court only decides constitutionality, not guilt or innocence or right or wrong.
A judge on the bench in a court of record makes decisions on the constitutionality of the cases before them on a daily basis. That’s where experience comes into play. A judge in a court of record knows that each case may be reviewed at a higher level and has a legal and moral responsibility to act accordingly with regards to constitutional issues.
Kagan has never sat on the bench in lower courts and made those decisions in case after case. She would be reviewing those decisions at the highest level with no personal experience of even the process which brought the case before her.
In my opinion, Kagan has neither the experience nor the background to make sound decisions at the SCOTUS level.
I believe Obama wants Kagan on the Court to pursue politically motivated judicial activism so as to implement Obama’s vision for a socialist America, and nothing more.

Posted by: jaycee | May 12, 2010 at 04:01 AM


“I don’t think the Supreme Court, Congress, or President/Cabinet is a good place to gain experience.” – Brandon

I agree! Glad to see your view on that has changed since the Presidential election 🙂

Posted by: Mick | May 12, 2010 at 07:51 AM

Brandon Burgess

Mick, I certainly learned my lesson 😉 I’d like to ask Roch if he agress with most of us here or does he have an opinion that might serve to change some minds or at least provide a different perspective.

Posted by: Brandon Burgess | May 12, 2010 at 11:04 AM


2 Responses to "Elana Kagan"

I see comment after comment and they all make sense.
Brandon, said, “the Supreme Court only decides constitutionality, not guilt or innocence or right or wrong.”

This is the scary part of the situation. I feel that Kagan does not have the appropriate experience to be a Justice. I believe with just the little bit we know of her and how she thinks, that we would find her not interpreting the Constitution based on how it was meant to be interpreted but based on her version of what it means.

I’m sorry to say that I do not feel the least bit safe if this woman is appointed a Justice on the Supreme Court, nor do I feel that the Constitution is safe if she is given the opportunity to decide it’s relevance or meaning. ss

It is true however that she would be the least offensive of the three named that Obama was considering. This of course could be his ploy to insure that she is accepted. I hope they push her out. last night they were going on about is she or is she not a lesbian and should this matter. Well, yes she is and she is open about it and yes it does matter because she will vote accordingly on some issues like the traditional marriage vs. Commitment Contracts.

I do have much trouble with her and hop[e the Republicans make a big stink and bring out all these nasty things the public is against then let the Dems put her on the court. She will live a hard life of nasty emails and phone calls and letters because the Supreme Court Judges have no more of a private life than any other high government official. She hasn’t the stuff to take it and endure like Thomas did and does. BB

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