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Date Posted: Tuesday, May 11, 07:44:55am
Author: Dave ZItzkat
Subject: Another Great Obama Pick

Well, we've one one person on the Supreme Court whose main qualification was that she was an Hispanic Woman. Now, more of the same. Pretty soon, if Obama has his way, we will have a new Supreme Court 100% made up of the right kind of people, but who know squat about law.

Hey, don't blame me. I didn't vote for him!

Kagan -- Lots of Left-Wing Views, Little ExperienceUpdated: Carrie Severino


Special to AOL News (May 10) -- If you needed surgery, would you hire the successful hospital administrator or the experienced surgeon who spends all his days in the operating room? Easy answer: the surgeon. Unless you're President Barack Obama.

He just announced his appointment of Elena Kagan as the next Supreme Court justice, replacing retiring justice John Paul Stevens. But she doesn't have experience as a judge. And she has spent a total of three years actually practicing before a court, two as a young associate and one as the U.S. solicitor general. The intervening 28 years were spent on the faculties of the University of Chicago and Harvard law schools, with three years off to work in the Clinton White House. By all accounts, she was a successful dean at Harvard Law School. But that doesn't say much about her qualifications as a judge.

Another View on the Kagan Nomination:

Elena Kagan would be a welcome change from conservative Supreme Court jurists convinced that justice should be dealt with a thumb on the scale, says Ian Millhiser, a constitutional attorney with the Center for American Progress.
Despite her decades in academia, her bibliography is thinner than any other tenured Harvard Law professor -- and many of the untenured professors as well. She has managed in all that time to avoid almost any personal position on politically sensitive issues -- quite a feat in the highly politicized environment of legal academia.

Even a completely inscrutable record would bode poorly for Kagan as a future Supreme Court justice, because one would have to assume that her judicial philosophy matches that of the president choosing her. Obama has articulated a standard for his judicial picks under which, in close cases, judges should be allowed to pick winners and losers based on their "empathy" with the parties rather than the law.

What happened to the judicial oath to "administer justice without respect to persons, [to] do equal right to the poor and to the rich, and [to] faithfully and impartially discharge and perform" the duties of judge?

But Elena Kagan is not a complete mystery. She has tipped her hand several times to reveal her true liberal colors.

Don't ask, don't tell: As dean of the Harvard Law School, the sole issue upon on which Kagan decided to take a public stand was the "don't ask, don't tell" policy. Kagan banned the military from recruiting for the JAG Corps on Harvard's campus during a time of war, although its only fault was obeying the Clinton-era statute enshrining the policy as law.

Disturbed by what she called "a moral injustice of the first order," Kagan signed on to a friend-of-the-court brief at the U.S. appeals court and the Supreme Court, arguing that the government couldn't deny federal funds to schools that rejected federal recruiters. Her strong feelings about the issue obviously clouded her legal judgment -- the Supreme Court unanimously rejected her position.

Presidential control: In her academic work, Kagan also advocates greater presidential control of administrative agencies, a bureaucracy that is becoming ever more entangled in the daily lives of average Americans. The president has said he wanted judges who would not give strict constitutional scrutiny to his expansive legislative agenda, preferring to "let the process work itself out politically." Kagan could be just the ticket.

Originalism: And, while as a law school dean Kagan was at least evenhanded enough to give conservative and libertarian students a place at the table, she made no secret of her disdain for one legal philosophy championed by judicial conservatives like Justice Antonin Scalia -- originalism. Obama, too, has criticized constitutional theories that look to the original intent of the founders, although he fails to suggest an alternative method of interpreting the constitutional text that would still be grounded in objective law rather than subjective emotion or personal policy preferences.

Ultimately, it is difficult to see how Kagan's left-wing views and lack of relevant experience qualify her for a seat on the Supreme Court. She is the hospital administrator being called on to pinch-hit in surgery. That's good enough for Obama, but is it really good enough for America?

Carrie Severino is chief counsel and policy director for the Judicial Crisis Network and is on Twitter at @JCNSeverino and @judicialnetwork.

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