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Supreme Court nominee's views, philosophies are a mystery to many

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Supreme Court confirmations, even foreordained ones, should not be done lightly or quickly.

President Barack Obama introduced Solicitor General Elena Kagan as his choice for Supreme Court Justice in the East Room of the White House on Monday.  J. Scott Applewhite/Associated Press
J. Scott Applewhite/Associated Press
President Barack Obama introduced Solicitor General Elena Kagan as his choice for Supreme Court Justice in the East Room of the White House on Monday.

So, as inevitable as Elena Kagan's Senate approval seems to be, and as quickly as the president would like to see it finished, it pays to go slowly, deliberately and thoroughly.

Kagan herself has made that argument in the past.

Indeed, even if the solicitor general is destined to replace outgoing Supreme Court Justice John Paul Stevens, it would be nice to know more about her. It is a lifetime appointment, after all.

If there's nothing to hide -- and certainly the White House believes that to be true -- what's the harm in a thorough examination?

Republicans can raise a fuss, and will: While she showed rare magnanimity toward conservatives as dean of Harvard Law School, former Attorney General Ed Meese notes Kagan once wrote that the court primarily exists to look out for the "despised and disadvantaged." Funny -- we thought it was to uphold the law.

Conservatives will also point to her ban on military recruiters at Harvard, and will label her as a liberal activist. She also apparently supported views of the Constitution as "defective." Pro-life advocates call her an ardent abortion supporter.

This editorial page is concerned by all those things. But who can say they are surprised? Elections have consequences, after all, and Supreme Court nominations are some of the most long-lasting. Absent some scandal that throws the Earth off its axis, President Obama will get his nominee confirmed.

Immediate reaction from both the left and right seemed to indicate Kagan wasn't as far-left as other picks might have been -- or maybe even as liberal as Stevens. Maybe that's the best one can hope for under the circumstances.

Kagan will be questioned about her lack of experience, and should be. "Elena is widely regarded as one of the nation's foremost legal minds," Obama says. That's awfully high praise, but we may have to take the president's word for it, since her resume is fairly impressive on its face, but amazingly thin for an office of this magnitude.

It's not just conservatives making that observation, either.

Liberal blogger Jane Hamsher of Firedoglake.com said, "Accepting Kagan just because people like Obama is wrong. That's appropriate for 'American Idol,' not the Supreme Court. Nobody knows what she stands for but him."

"She basically has such a scanty academic record, and she hasn't written anything at all outside the strictly academic context. And she hasn't been a judge. There's no public record at all to speak of to evaluate her on, which is really a very strange situation," liberal University of Colorado law professor Paul Campos was quoted on Politico.com.

Even CNN legal analyst Jeffrey Toobin -- a longtime friend and former study group partner of Kagan's at law school -- admitted, "I am somewhat at a loss. ... (H)er own views were and are something of a mystery."

At the end of the day, though, it's unlikely her nomination will be turned back.

Unless the confirmation process is as comprehensive as Elena Kagan herself has suggested it should be for other nominees, we may not truly know what we're getting for years.

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corgimom
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corgimom 05/11/10 - 10:26 pm
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"While she showed rare

"While she showed rare magnanimity toward conservatives as dean of Harvard Law School, former Attorney General Ed Meese notes Kagan once wrote that the court primarily exists to look out for the "despised and disadvantaged." Funny -- we thought it was to uphold the law."

Whoever wrote this editorial flunked Civics in high school. The Supreme Court interprets the law and determines the scope, intent, and Constitutionality of laws. It doesn't uphold every law, nor should it. And the AC knows that.

Shame on you, AC. This was irresponsible.

Nat the Cat
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Nat the Cat 05/11/10 - 10:29 pm
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I never trusted a person to

I never trusted a person to be a Supreme Court Judge who has never been a Judge. Kagin is hiding something, maybe a lot, other than her hate for the Military and her love for Socialism. Since she has never written a Legal Opinion on any of the salient issues of our day, much less any issue at all, we are left to literally "guess," how she feels about, homosexuality, abortion, Separation of Church and State, well, everything!

sjgraci
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sjgraci 05/11/10 - 10:39 pm
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"Immediate reaction from both

"Immediate reaction from both the left and right seemed to indicate Kagan wasn't as far-left as other picks might have been -- or maybe even as liberal as Stevens. Maybe that's the best one can hope for under the circumstances." This is all you need to know and is the best those on the extreme right like the chronicle can hope for. Kagan is as far to the right as you are going to get. I believe she will be a moderate Civil Libertarian but her views on corporate and executive power may be to the right of that and that should concern Liberals and Centrists given the far right make-up of four justices already on the court.

johnston.cliff
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johnston.cliff 05/11/10 - 11:01 pm
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Oh yeah, obama's going to

Oh yeah, obama's going to nominate someone who's not exactly as liberal as he ( or more so) . obama's handlers wouldn't allow him to nominate someone who's not an extremist left winger and a believer that the constitution is a "living breathing" document that's to be molded and manipulated by the left. Luckily, the balance of the court won't change with the addition of another freak, since that's what she's replacing. This is a Sotomayor rerun. Nothing will get better until the mad Marxist is removed from office.

Insider Information
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Insider Information 05/11/10 - 11:07 pm
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Remember: Don't ask, don't

Remember: Don't ask, don't tell.
That's what she will be doing during her confirmation hearing. She will be telling people not to ask her questions and she won't be telling them answers.

Riverman1
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Riverman1 05/11/10 - 11:12 pm
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Kagan lamented in her

Kagan lamented in her Princeton thesis the demise of socialism in America.

“The story is a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America,” she wrote.

Thank goodness it should probably stay 5-4 for awhile. We are hanging on by a thread.

dichotomy
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dichotomy 05/11/10 - 11:39 pm
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I don't know much about her,

I don't know much about her, and I'm sure she is not the first, but it does seem to me that a Supreme Court justice should have been a judge somewhere in their life and preferably a Federal District Court judge. It just doesn't make sense to put some glorified law clerk into the Supreme Court, liberal or conservative.

Emerydan
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Emerydan 05/12/10 - 12:21 am
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She looks like Rachel Madcow

She looks like Rachel Madcow

Riverman1
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Riverman1 05/12/10 - 12:36 am
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More like Keith Olberman.

More like Keith Olberman.

JesusIsComing
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JesusIsComing 05/12/10 - 05:03 am
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Have you heard the lady

Have you heard the lady speak? Five minutes of her testimony before Congress will tell you all you need to know. She's a perfect Obama pick though. He remains the most "qualified" person in his group of the unqualified!

slippery 25
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slippery 25 05/12/10 - 06:32 am
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Tell me about yourself after

Tell me about yourself after you get elected or approved. Tell me about the health care bill or any of the recent billls after it has been passed. This method seems to be the change we were promised. A person with no experience on the Supreme Court makes perfect sense.

southernguy08
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southernguy08 05/12/10 - 06:41 am
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My guess is the Dems will ram
Unpublished

My guess is the Dems will ram this through just like they did the racist, sexist Sotomayer nomination and their version of healthcare reform. It will be another nail in their political coffins this November. Couldn't happen to a nicer bunch of guys.

Techfan
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Techfan 05/12/10 - 07:08 am
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Never been a judge. Thought

Never been a judge. Thought "seperate but equal" was just fine. As law clerk wrote:"To the argument ... that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are." How dare someone like that even be considered as a justice? Too late, it was William Rehnquist, the darling of the right.

Techfan
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Techfan 05/12/10 - 09:22 am
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Alito nominated Nov 10,

Alito nominated Nov 10, confirmed Jan31. Roberts nominated July 19 (withdrawn Sept 6, and renominated for Chief Justice), confirmed Sept 29. Seems like 9-10 weeks should be "slowly, deliberately and thoroughly" enough.

Insider Information
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Insider Information 05/12/10 - 09:30 am
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Techfan, like my mom would

Techfan, like my mom would always say, two wrongs don't make a right.

Techfan
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Techfan 05/12/10 - 09:39 am
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Mine also said; "What's good

Mine also said; "What's good for the goose is good for the gander."

grouse
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grouse 05/12/10 - 10:08 am
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It's fun to see The Chronicle
Unpublished

It's fun to see The Chronicle running scared...!

Chillen
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Chillen 05/12/10 - 11:06 am
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Latest headline on

Latest headline on Kagan.

"President Obama's nominee for the Supreme Court, Elena Kagan, argued certain forms of speech that promote "racial or gender inequality" could be "disappeared."

In her few academic papers, Kagan evidences strong beliefs for court intervention in speech, going so far as to posit First Amendment speech should be weighed against "societal costs.”

Only one word for this. Wow.

Dixieman
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Dixieman 05/12/10 - 11:11 am
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Here is a letter to the

Here is a letter to the editor of the Wall Street Journal I sent today about her anti-military activities (I was a law student at Harvard in 1969-72 after serving in Vietnam):

Sorry, but my Harvard Law School classmate Robert C. Clark’s essay (“Kagan and the Military: What Really Happened,” May 11, 2010) attempting to defend Elena Kagan’s dealing with military recruiters at Harvard doesn’t wash for several reasons. First, during the entire controversy Ms. Kagan was not acting as a lawyer representing the views of a another (I would never criticize any lawyer for arguments made on behalf of a client) but rather expressing her own views as a principal in the controversy by making key decisions as Dean of Harvard Law School and by signing amicus curiae briefs strenuously opposing the law.
Second, she called the “Don’t Ask, Don’t Tell” law (which she always incorrectly characterizes as the military’s policy, not a law passed by Congress) “a profound wrong — a moral injustice of the first order” and said her decision to continue allowing military recruiters to access Harvard’s career center “causes me deep distress. … I abhor the military’s discriminatory recruitment policy.” However, she quickly overcame this abhorrence when the government threatened to terminate Harvard’s $328 million in Federal funding. The pernicious message of this decision to the law students in her charge was that when your principles conflict with getting some money, you should sell them down the river.
Finally, the Solomon Amendment forbidding discrimination against military recruiters was always the valid and enforceable law of the land. The plaintiffs in FAIR v. Rumsfeld had requested an injunction against the government enforcing this law. The trial court denied their request for an injunction, and on appeal the Third Circuit issued a 2-1 opinion finding the law unconstitutional on November 29, 2004. However, the Third Circuit did not issue an injunction forbidding its enforcement or even send the case back to the District Court to do so as the plaintiffs had requested. Instead, after the government filed to have the decision reviewed by the Supreme Court, the Third Circuit issued an order staying the effect of its decision until the Supreme Court review was completed, leaving the law on the books and in effect. The Supreme Court unanimously overruled the Third Circuit on March 6, 2006. What did Dean Kagan do during this appeal period? In addition to signing the amicus brief unanimously rejected by the Supreme Court, she overeagerly jumped the gun and permitted the Harvard Office of Career Services to stop obeying the law in the November 29, 2004 to March 6. 2006 period even though no court had even ordered the government to stop enforcing it. Flagrant disobedience of a valid law just because you disagree with it is not the kind of conduct she should have been encouraging in America’s next generation of lawyers.

Dixieman
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Dixieman 05/12/10 - 11:56 am
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I don't want the most

I don't want the most brilliant brains as judges, I want the best and wisest people.

baronvonreich
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baronvonreich 05/12/10 - 01:11 pm
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Many, many fine Supreme Court

Many, many fine Supreme Court judges never served as a judge prior to their appointment to the Court. There is nothing wrong with this. It actually provides a good balance though in now way is it an advocation for Ms. Kagan as I know little about her. As someone else said she seems like a Sotomayer rerun.

Chillen
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Chillen 05/12/10 - 01:21 pm
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Another update on Kagan. She

Another update on Kagan. She believes that "the government’s reasons for restricting free speech were what mattered most and not necessarily the effect of those restrictions on speech"

This is all directly from an article she wrote entitled “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.”

We are about to have someone sitting on the Supreme Court who feels that your first Amendment rights come second to what is best for society and second to the government's reasons.

I can't believe this is really happening. For now, I'm just glad to be able to speak my mind. In a year it might be a different story.

Riverman1
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Riverman1 05/12/10 - 02:49 pm
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Dixieman, excellent!!! I hope

Dixieman, excellent!!! I hope the WSJ picks it up. She was obviously breaking the law in her position by allowing and encouraging the exclusion of military recruiters from the campus. How in the world can THEY dismiss her past conduct?

brimisjoshan
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brimisjoshan 05/12/10 - 08:46 pm
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Don't know really where to

Don't know really where to post this. So I will post this on a few places. My husband known to you as brimjoshan died 2 days ago and will not be making anymore posts. He used to laugh and go on about the people who posted on here. He always hoped he was able to make some stand for God on these forums and he enjoyed chatting with several of you and prayed for many of you by name for your salvation. He didn't know your real names but prayed for you just the same. He said that there was always some passionate discussions to be found and since he was homebound for the last 6 months it really kind of helped him feel in touch with people. Well, he is with the Lord now and I will sign out for him just like he used to sign his letters. Making Him Known, Brimishjoshan

happychimer
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happychimer 05/12/10 - 09:01 pm
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I am sorry for your loss.

I am sorry for your loss.

Sargebaby
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Sargebaby 05/12/10 - 09:06 pm
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brimisjoshan, I am so sorry

brimisjoshan, I am so sorry for your loss. God must have needed another Angel. If you do not mind, please email me at Franjim@knology.net.

Thank you and may God give you peace and relief from your grief.

KSL
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KSL 05/12/10 - 09:25 pm
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He was a voice of reason. My

He was a voice of reason. My prayers are with you. kslouder@bellsouth.net.

CobaltGeorge
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CobaltGeorge 05/12/10 - 09:29 pm
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He would have been proud of

He would have been proud of you for making his last post to all his unknown friends.

May the Good Lord be with him and give you the strength to always remember the good times. CobaltGeorge@comcast.net

corgimom
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corgimom 05/12/10 - 09:57 pm
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"She was obviously breaking

"She was obviously breaking the law in her position by allowing and encouraging the exclusion of military recruiters from the campus."

Huh? That's been the norm for many college campuses since I was a college freshman in 1974.

"She believes that "the government’s reasons for restricting free speech were what mattered most and not necessarily the effect of those restrictions on speech" (note: as in MOTIVATION for Supreme Court decisions, hence the title of her paper)

I read that paper. It was not a statement of her personal beliefs. It was an analysis of Supreme Court decisions of First Amendment cases and how the Supreme Court determines governmental motives. And it was a real snoozer of a paper, believe me. If you have insomnia, I highly recommend reading that paper. It'll cure you.

I searched for the phrase that you quoted, Chillen, in that paper, and I couldn't find it.

Riverman1
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Riverman1 05/12/10 - 10:03 pm
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Corgimom, you know the law is

Corgimom, you know the law is a sticky thing. No matter how many colleges weren't allowing the military recruiters on campus they were still breaking the law.

As Dixieman said, "Finally, the Solomon Amendment forbidding discrimination against military recruiters was always the valid and enforceable law of the land."

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