The propagandists in the mainstream media have painted Elena Kagan as a Clinton moderate, while pundits praise her Harriet Myers-esque lack of experience. Reminiscent of LBJ’s appointment of longtime friend and confidant Abe Fortas as Chief Justice, Brother O has clearly appointed an ideological soul mate, as hell-bent as he is to change the American model from an open and competitive economic system based on individual freedom to a system of centralized planning based on a leftist collective of grievance groups.
No Republican Senator with a modicum of decency, a trace of conscience, and an ounce of self respect should consent to appoint Kagan now that her writings prove her ties to radicalism.
Kagan’s uncovered college thesis [PULLED AT THE REQUEST OF PRINCETON UNIVERSITY EXERCISING ITS COPYRIGHT RIGHTS.] revealed her to be a stone cold Socialist – and her methods which are now finally being examined, are showing her to be an Alinskyite radical.
What would Saul Alinsky do if the facts in a case favored the other side? Facts can manipulated and distorted, and they often are with Alinsky radicals…ends always justify the means with these people. Being a little loose with the facts to get the outcome desired (for the good of humanity, mind you), is considered virtuous.
Shannen Coffin, writing for NRO, was a deputy attorney general during the Bush administration. He was charged with defending the federal partial-birth abortion act in court. He has discovered that Kagan, while a deputy assistant to President Clinton for domestic policy, used shocking and despicable slight of hand to help the Clinton administration overturn Nebraska’s ban on partial birth abortions.
There is no better example of this distortion of science than the language the United States Supreme Court cited in striking down Nebraska’s ban on partial-birth abortion in 2000. This language purported to come from a “select panel” of the American College of Obstetricians and Gynecologists (ACOG), a supposedly nonpartisan physicians’ group. ACOG declared that the partial-birth-abortion procedure “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.” The Court relied on the ACOG statement as a key example of medical opinion supporting the abortion method.
The task force’s initial draft statement did not include the statement that the controversial abortion procedure “might be” the best method “in a particular circumstance.” Instead, it said that the select ACOG panel “could identify no circumstances under which this procedure . . . would be the only option to save the life or preserve the health of the woman.”
Of course, most of us already knew that thanks to our innate common sense. The liberal Supremes needed a scientific sounding excuse to allow the unsavory procedure, and like a good Alinsky soldier, she supplied it for them:
Kagan set about solving the problem. Her notes, produced by the White House to the Senate Judiciary Committee, show that she herself drafted the critical language hedging ACOG’s position. On a document [PDF] captioned “Suggested Options” — which she apparently faxed to the legislative director at ACOG — Kagan proposed that ACOG include the following language: “An intact D&X [the medical term for the procedure], however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.”
Kagan’s language was copied verbatim by the ACOG executive board into its final statement, where it then became one of the greatest evidentiary hurdles faced by Justice Department lawyers (of whom I was one) in defending the federal ban. (Kagan’s role was never disclosed to the courts.)
Powerline has the image of Kagan’s notes in her handwriting. John Hinderaker concludes:
Ms. Kagan has a great deal of explaining to do. Unless she can come up with an innocent explanation for these documents, she should not be confirmed.
Alec Rawls of Error Theory, has another stunning example of Kagan’s duplicity, this time while she was Solicitor General for Obama:
As Obama’s solicitor general, Supreme Court nominee Elena Kagan urged the Court to dismiss the suit that our 9/11 families have been pressing against the Saudi government and several Saudi princes for their extensive funding of al Qaeda. The families sued under the domestic tort exception to sovereign immunity, which according to Kagan’s Supreme Court brief (at p. 14):
requires not merely that the foreign state’s extraterritorial conduct have some causal connection to tortious injury in the United States, but that “the tortious act or omission of that foreign state or of any official or employee” be committed within the United States. 28 U.S.C. 1605(a)(5).
The “tortious act or omission” is the wrongful act (the tort) that leads to the injury. Thus she is claiming that for Saudi funding of al Qaeda to be actionable, the funding itself has to have been transacted within the United States. Compare this with the actual wording of 28 U.S.C. 1605(a)(5)
(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case – … (5) … in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment…”
Contrary to Kagan’s assertion, the law only specifies that the injury has to have occurred within the United States. Not a word about the wrongful act that leads to domestic injury also having to have taken place within the United. Kagan flat lied about the clear wording of a law that goes to the very heart of our ability to use the courts to combat Islamic terrorism, and thanks to the Court’s failure to review this crucial case, the simple wording and intent of Congress—that foreign states whose actions do injury in the United States can be sued for those injuries—has now been undone, as if the law had never been passed.
“Oops!… I did it again”
Kagan proves that her lie was self conscious by also lying about the relevant Supreme Court precedent, claiming (again at p. 14):
In Amerada Hess the Court considered and rejected the argument that domestic effects of a foreign state’s conduct abroad satisfy the exception. 488 U.S. at 441.
In fact, the Court in Amerada never considered “the domestic effects of a foreign state’s conduct abroad” at all, for the simple reason that there were no domestic injuries in that case. The injuries occurred outside of U.S. territory, which is why the domestic tort exception was held not to apply. Here are the simple facts, as recounted in Justice Rehnquist’s majority opinion (joined by Brennan, White, Stevens, O’Connor, Scalia and Kennedy):
… the injury to respondents’ ship occurred on the high seas some 5,000 miles off the nearest shores of the United States. Despite these telling facts, respondents nonetheless claim that the tortious attack on the Hercules occurred “in the United States.” [At p. 440.]
The Amerada Company ship was attacked at sea. Since the tortious act and the damages from it both occurred “5,000 miles off the nearest shores,” the Court did not bother to distinguish between the wrongful act and the injuries from it. Kagan uses this to claim that the Court found Amerada’s domestic injuries to be unrecoverable, when in fact the Supremes agreed with the district court that there were no domestic injuries (p. 439-441).
Has any solicitor general ever flat lied to the Supreme Court before? Isn’t any lawyer who unambiguously lies to the Court about the simple facts of a cited holding subject to disbarment for unethical behavior? And she did it for an unethical purpose: to help the financiers of 9/11 escape justice. Any moral person would either resign in the face of such a job assignment, or would limit himself to making what honest arguments could be mustered. This moral pervert chose to lie and ought to be busted out of the profession for it, not promoted to the highest court in the land.
Radicals consider themselves to be moral people, too. They just have a vastly different idea of morality than we do.