Kagan’s Nomination
May 12, 2010
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Posted by Michael S. Langston
SCOTUS pick made….now here comes the fun. From CBS, Obama stated, among other things:
“one of the nation’s foremost legal minds.”
a “trailblazing leader.”
“She has won accolades from observers across the ideological spectrum,” Mr. Obama said today, “not just for her intellect and record of achievement, but also for her temperament.”
For full disclosure, I’m a veteran of the United States Army, but it seems to me…. when Ms. Kagan, decided, as Dean of Harvard law school to ban military recruiters from campus due to “don’t ask, don’t tell” policy implemented, she did so knowing she was legally in the wrong.
To be fair, she did follow the law in that she only banned recruiters after some appeals courts stuck down the Solomon Amendment as unConstitutional, but I think the facts suggest she was knowingly following bad law because it suited her beliefs.
Now, as I frequently say, I’m no lawyer, but it seems the appeals courts which struck down the Solomon Amendment, did so without any real legal basis. I can say this easily with confidence now as SCOTUS upheld the amendment unanimously, but even without hindsight it seemed unlikely the amendment was unConstitutional.
For over 90 years, the federal government, with lots of backing from SCOTUS, has pushed policies and even laws on recipients of federal money. It began with a highway bill to the states, but again and again SCOTUS has stated firmly that if the federal government gives you money, they can take that money away if your group/entity/state does something with which they disagree.
I’m probably in the minority on this view, but when the Dean of Harvard Law School pushes a policy with which the United States Supreme Court unanimously rejected, she likely shouldn’t be on the court. Think about it – her beliefs and legal reasoning was unanimously rejected by the exact same court makeup that she will be joining…
But this is only the beginning and we truly know very little so far. I’m still inclined to keep an open mind as this is only one incident and I could see an argument about following school policy as valid, but for analysis sake.
At this time it doesn’t seem even a unanimous rejection of her ideas by SCOTUS will deny her entry into a life long position from which she can help shape the American legal system for years to come.
The likely scenario is that her opponents don’t find anything truly damaging, mainly due to her complete lack of experience (less than that of Harriet Miers), and politicians scared of being called hateful or mean, never question her with the ferocity intended. Not because she’s a woman, but because our politicians are fearful and will only risk a “meanie” tag once a firm majority is already behind them.
Categories: Politics, Politics of Fear, SCOTUS
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Tags: Elena Kagan, Federal Spending, Harvard Law School, Nomination Process, Obama Administration, SCOTUS, Solomon Amendment
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