A Kagan Filibuster Is Best for the Country
Jerry A. Kane
“I loved what happened in the Bork hearings. … The Bork hearings were great. The Bork hearings were educational.”—Elena Kagan
In 1987, President Ronald Reagan nominated Judge Robert Bork to the Supreme Court, but the Senate rejected his nomination following an intensely partisan debate led by Senators Ted (now dead) Kennedy and Joe (teats on a boar) Biden.
The Bork confirmation hearings were arguably the most contentious in the two-hundred-year history of the U.S. Constitution. The hearings were nothing more than a witch hunt to slander and smear a great legal mind to gain ideological control over the Court and the Constitution.
The majority of the senators who questioned Bork were focused on his vilification not his jurisprudence. In particular, Kennedy used slanderous accusations and outright lies to demonize him.
“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy… President Reagan … should not be able to … impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.”—Senator Ted Kennedy (D-MA)
The Economist agreed with Bork that “There was not a line in Ted Kennedy’s speech that was accurate.” Kennedy’s excoriating witch hunt worked so well to discredit the judge, whose legal competence and personal integrity were beyond doubt, that the word “borked” was invented as a verb to describe a Supreme Court or federal judgeship nominee who was denied confirmation as a result of sustained public disparagement.
Bork was rejected because he viewed the Constitution as the “the Founders’ Constitution” bound by original intent and not as a “living” instrument subjected to the interpretive whims of a leftist judiciary.
“You need only reflect that one of the best ways to get yourself a reputation as a dangerous citizen these days is to go about repeating the very phrases which our founding fathers used in the struggle for independence.”—Charles Austin Beard
Bork argued that the court’s task is to adjudicate and not to “legislate from the bench”; i.e., judges should restrain from hoc pronouncements or subjective value judgments in deciding cases.
“We are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own.”—Judge Robert Bork
The rule of law and the Constitution would be more secure had Bork joined Roberts, Alito, Scalia, and Thomas on the high court, but instead the Senate will likely add another Brother O lackey to join Sotomayor, only this one doesn’t know that we live in a Constitutional Republic not a Constitutional Democracy.
The Bork hearings were the best thing that ever happened to Constitutional Democracy.”—Elena Kagan
Not only are the two aforementioned forms of government dissimilar, they are antithetical:
In a democracy, the power of the majority is unlimited lacking legal safeguards to protect the rights of the individual and the minority; in a republic, the power of the majority is limited by a constitution safeguarding the rights of the individual and the minority.
According to Bork, Kagan’s regard for the Israeli Supreme Court’s quintessential activist judge Aharon Barak as her “judicial hero” disqualifies her to sit on the Supreme Court. Kagan’s acclamation of Barak, whom Bork considers “the worst judge on the planet” and federal appeals court judge Richard Posner says “is a law unto himself,” reveals her potential as an activist justice.
“I try to be guided by my North Star, which is justice. I try to make law and justice converge, so that the Justice will do justice.”—Aharon Barak, Israeli Supreme Court justice
“Don’t tell me words don’t matter” when it’s their world view they share, and not just rhetoric.
If Senate Republicans cared as much about the Constitution and the political direction of the country as they do about maintaining a cordial relationship with leftist Democrats and the lapdog media, they would to do a time-limited filibuster of Kagan until after the August recess to make her confirmation hearings as educational for Americans as Bork’s were for her.
Kagan on Bork :19 Video
Excerpt from Kagan’s 1997 speech at Case Western Reserve:
“And I, like Professor Toulouse, I loved what happened in the Bork hearings. I wrote a review of Stephen Carter’s book recently where I said, ‘No, he has it all wrong. The Bork hearings were great; the Bork hearings were educational. The Bork hearings were the best thing that ever happened to Constitutional Democracy.’ So, I share that view with Professor Toulouse.”—Elena Kagan
Barack Obama revealed his goal for the Supreme Court when he complained on Chicago radio station WBEZ-FM in 2001 that the Earl Warren Court wasn’t “radical” enough because “it didn’t break free from the essential constraints placed by the Founding Fathers in the Constitution” in order to allow “redistribution of wealth.”
Now that Obama is president, he has the power to nominate Supreme Court justices who will “break free” from the Constitution and join him in “fundamentally transforming” America. That’s the essence of his choice of Elena Kagan as his second Supreme Court nominee. She never was a judge, and her paper trail is short. But it’s long enough to prove that she is a clear and present danger to the Constitution.
When Kagan was dean of Harvard Law School, she presented a guest speaker who is known as the most activist judge in the world: Judge Aharon Barak, formerly president of the Israeli Supreme Court.
The polar opposite of the U.S. Constitution, which states that “all legislative powers” are vested in the elected legislative body, Barak has written that a judge should “make” and “create” law, assume “a role in the legislative process” and give statutes “new meaning that suits new social needs.”
Barak wrote that a judge “is subject to no authority” except himself, and he “must sometimes depart the confines of his legal system and channel into it fundamental values not yet found in it.” Channel? Does he mean he channels in a trance, as Hillary Clinton supposedly channeled discourse with the long-deceased Eleanor Roosevelt?
Despite Barak’s weirdo writings, or maybe because of them, Kagan called him her “judicial hero.” Judge Robert Bork, a man careful with his words, says Kagan’s praise of Barak is “disqualifying in and of itself.” Bork said that Barak “establishes a world record for judicial hubris.” He wrote that Barak embraces a judicial philosophy that “there is no area of Israeli life that the court may not govern.”
During Kagan’s confirmation hearing for solicitor general, Sen. Arlen Specter asked her views on using foreign or international law or decisions to interpret our Constitution and laws. She wrote in reply that she approves using “reasonable foreign law arguments.” Au contraire. The U.S. Constitution says our judges “shall be bound” by “the Constitution, and the laws of the United States which shall be made in pursuance thereof.”
Federal law requires all educational institutions receiving federal funds to present an educational program on the U.S. Constitution on every Constitution Day, Sept. 17. Kagan thumbed her nose at Constitution Day 2007 by hiring a transnationalist to the Harvard faculty, Noah Feldman, and featuring him for two days of speeches.
Transnationalists are lawyers who advocate integrating foreign and international law into the interpretation of the U.S. Constitution and laws. In his Harvard Constitution Day address, Feldman urged the “use of international legal materials in constitutional decision-making … to help actually decide cases,” and opined that “international tribunals’ rulings must be treated as law.”
Kagan’s hero is also a transnationalist. In his book “The Judge in a Democracy,” he sharply criticizes the U.S. Supreme Court for failing to cite foreign law, and he praises Canada, Australia and Germany for their “enlightened democratic legal systems.”
Kagan is particularly inappropriate because this anti-military woman would replace the only veteran on the court, John Paul Stevens. As Harvard Law School dean, she signed a brief asking the Supreme Court to overturn or rewrite the Solomon Amendment, which she called “profoundly wrong.”
That popular law denies federal funds to colleges that bar military recruiters from campus. The Supreme Court unanimously rejected Kagan’s argument, proving what an extremist she is.
Kagan showed her feminist extremism when she served as the lead White House strategist advising President Clinton to veto the Partial-Birth Abortion Ban Act. Ten years later, substantially the same act was passed by Congress, signed by President Bush and upheld by the Supreme Court.
Feldman has published a New York Times magazine article in which he worries about how the high court will rule on lawsuits over ObamaCare, Obama’s corporate takeovers and the stimulus spending cronyism. Feldman hopes Kagan’s appointment means “the moment has arrived for progressive constitutional thought” to seize the courts .
The left is counting on Kagan to play a major role in getting the Supreme Court to uphold Obama’s transformation of our exceptional private enterprise system to a socialist economy. The New Republic magazine is salivating at the prospect that Kagan will reassert the discredited doctrine of the “living Constitution.”
A Rasmussen poll reports 42% of Americans oppose Kagan’s confirmation, and only 35% favor her. Are senators listening?
• Schlafly is a lawyer, conservative political analyst and the author of the newly revised and expanded “Supremacists.”