Tuesday, May 11, 2010

Elena Kagan; Social Justice of the Supreme Court

It was announced yesterday that President Obama has chosen the current solicitor general, Elena Kagan, as his pick to replace retiring justice John Paul Stevens on the Supreme Court of the United States. In some ways this is a very smart move on behalf of the President as Ms Kagan has a relatively small paper trail for the senate to peruse through. In other ways, this lack of a judicial past of even having a written decision authored by her makes the confirmation of Ms. Kagan decidedly more difficult.

Many on the right have argued that Ms. Kagan does not have the judicial experience to sit as a Justice on the highest court in the land. Kagan has never served as a judge in any court to date and thus gives pause to some who think that this is necessary for the posting.

I personally do not have a problem with Kagan not having been a judge prior to this. In my opinion, a deep understanding of Constitutional law, the workings of our judicial system, an analytical mind dedicated to serving truth and justice, and plain old common sense are what is most needed for any judge, particularly for one sitting on the Supreme Court. Indeed there have been Justices on the Supreme Court that were not even lawyers, let alone judges, that have served honorably in the past.

The problem is that I do not believe that Kagan has those necessary qualifications. She was a huge fan of Supreme Court Justice Thurgood Marshall and idolized him in many regards. Accordingly she has agreed with Marshall that the purpose of the Supreme Court is to help the "despised and disadvantaged" of our society. Further, Ms. Kagan has stated how the Constitution itself is a flawed document.

I find it impossible to reconcile these huge conundrums. How is a Justice supposed to interpret a Constitution that she finds to be deeply flawed from the beginning? Further, rather than justice being blind and serving the cause of truth for ALL that come before the court, Ms. Kagan has indicated in previous comments and writings that she, like her hero Thurgood Marshall, thinks the Supreme Court should be used to promote social justice.

This is, of course, is right in line with President Obama's statement saying that he would pick justices that showed empathy for the downtrodden of society. Thurgood Marshall had once stated that he would like to have the Supreme Court refuse to hear cases involving "one fat cat suing another fat cat" and reserve the court for the purpose of righting wrongs against the "despised and disadvantaged". He even tried to convince his other eight fellow justices of this at the time, thankfully to no avail.

Indeed our society as a whole should absolutely help the despised and disadvantaged on an individual basis, but our court system should adjudicate based on law, especially Constitutional law as intended by our Founding Fathers. Anything else is not in the service of "Justice For All", but rather a travesty and misuse of power to further a political agenda.

Now President Obama has an absolute right to nominate whomever he desires to sit on the Supreme Court. That is his Constitutional prerogative and the price we conservatives pay for having lost the presidential election to a socialist. That being said, the Senate also has a right to give advice and consent on the President's nominee. I can only hope that there are enough senators that understand that Elena Kagan would not serve the cause of blind justice for all Americans but rather would likely be an activist Justice that would legislate from the highest court in the land for what SHE felt rather than what the "flawed" Constitution says should be done.

We can only hope that President Obama will be forced to pick again, and this time choose someone that actually has an understanding, reverence, and intention to follow the dictates of our Constitution.


lisa said...

Obama also feels the constitution is a flawed document.
The question is not how well educated one is but rather what have they learned.

T. Paine said...

Indeed ma'am. I have met many a person that is educated way past the capabilities of their intelligence.

The bottom line is that a Supreme Court Justice needs to be non-ideological, in my opinion, and interpret the Constitution as to the Founders intent and in the context of the history supporting its formation.

Elena Kagan is not a fit for being a Justice by those standards.

lisa said...

but then again how can Obama continue his "transformation" of the country?
I guess if you have enough people not paying attention or "uneducated" he will make it happen without their knowledge until it's too late.

Dave Splash said...

Except you leave out the rest of the quote (Kagan was writing an article on Marshall) and the context (slavery and women's suffrage). It says:

"It was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government -- to safeguard the interests of people who had no other champion. The Court existed primarily to fulfill this mission."

Yeah, a person who thinks like that definitely has no role on the Court.

Anonymous said...

If you think it ends there Dave then I have a bridge to sell you.
The constitution doesn't need interpretation.
It's there to protect people not to change according to what one believes it should be.


T. Paine said...

Dave, the mission of the court is to mete out BLIND justice to all that come before it, regardless of race, gender, class, etc according to the law of the Constitution.

The Supreme Court is NOT a tool to be used for social justice but rather one to be used for equal justice under constitutional law, sir.