Sunday, August 22, 2010
Does Obama Know Kagan?
Supreme Court Justice Elena Kagan may surprise everyone with her future court decisions. Kagan has no judicial record from which to ascertain her legal preferences, just as Barack Obama had no experience as an executive before his election as President. Both Kagan and Obama have had ambitious goals since childhood: Kagan told a friend in high school that she wanted to be a Supreme Court Justice, while Obama wrote a 3nd grade paper entitled “I Want To Be a President”. By taking positions on secondary legal matters only, Kagan gave Democrats the feeling that she was one of them, whereas Obama endeavored to be a blank slate upon which people could project their hopes. They both dedicated their lives to achieving their ambitions. Kagan, having had the benefit of geographical stability during her upbringing, could more readily pursue her goals with great discipline.
Kagan greatly admired Justice Felix Frankfurter, who she quoted in her high school year book. Frankfurter was a close friend of Roosevelt, espoused many progressive ideas, but became known as “Mr. Conservative” in the Warren Court. Kagan could also be a justice the Democrats will regret appointing.
Kagan was raised on New York City’s Upper West Side in the Conservative Jewish community, in which the laws of the Old Testament are of the utmost importance. They are deeply aware that without the protection of the Bill of Rights and the Constitution, they would not be able to practice their religion as they wish. The basic ethics and principles established over 4000 years ago represent the epitome of precedent. Thus her expression of commitment to precedent in her Judicial Committee testimony is consistent with her childhood environment. This is not the background of a judge who is likely to believe in the Constitution as a living document.
Imagine how a motivated individual such a philosophy would plan her career. First she would have to be part of a political party. The Democratic Party was the obvious choice because her family and friends were Democrats. Second, she would study the lives of the great justices to learn from their political successes and mistakes. Finally, she would become a master of politics. She was elected president of her class at the prestigious Hunter College High School. This presumes a strategy for becoming well-known and liked. One of the strategies for this that she has utilized several times is to enter innocuous controversies with a clearly reasoned seemingly honest opinion.
Kagan has avoided for the most part controversial discussions that would indicate her judicial thinking. In fact Glen Greenwald, a constitutional lawyer and columnist, observed, “She has purposely avoided expressing any opinion what so ever over the last twenty years in a way that makes it impossible for any progressive in good faith to say they support her nomination.”
Kagan was a team player as part of the Obama and Clinton administrations, and who, like the A-student she was, enhanced her status by making the appropriate comments. However, in the Senate Judiciary hearings on her confirmation, Kagan emphasized that the views she expressed as Solicitor General for the Obama administration were not necessarily her own. “I want to make a clear distinction between my views I had as an advocate and any views I might have as a judge.” And many of the memoranda she wrote in the Clinton administration were only talking points, not necessarily what she believed in.
Critics have cited her Princeton senior thesis, which lamented the demise of the Socialist Party in New York, to infer Kegan’s socialist inclinations. However, her history Professor Sean Wilentz declared “Elena Kagan is about the furthest thing from a socialist. Period. And always had been. Period.” So maybe she is really just a Democrat who respects the constitution, as she says she is, which is really not as far left as it could be: considering that the former White House legal counsel Greg Craig said, “She is largely a progressive in the mold of Obama, himself.”
At least on the belief of extending Habeas Corpus rights to detainees in Afghanistan, Kagan is not an extreme leftist. Referring to a case Kagan argued in the D.C. Circuit Court, the Republican Senator Graham said , “The brief needs to be read by your supporters and your critics ‘cause some of your supporters may be unnerved by it and some of your critics may like what is in there. I am here to say that that from my point of view in this area of your legal life you represent the United States well.”
After thirty years of discipline, Kagan cannot wait to be free from the need to be a politically correct. In the Judicial hearings, she said that Obama misrepresented the Citizen’s United decision in his State of the Union address. Can you imagine criticizing the person responsible for her nomination and final triumph? She was trying to tell the world that she will have independent ideas and will act on them.
Also, in the hearings, Kagan fell into a classic trap for those people whose strength is logical reasoning. To mask their true feelings, they make an obvious and principled logical statement in lieu of saying the opposite. When the fox says to the hen, “I value all living things”, you know he is thinking something else. She had to reiterate that she convinced herself of the correctness of the case she was prosecuting: “At least for me, when I prepare a case for argument, the first person I convince is myself.” It was as though she could have mastered and believed in the opposite point of view. Also, Senator Graham asked Kagan if she felt comfortable that submitting a suspected terrorist to a military commission trial is within our value system. She said, “I do. I would not be in this administration if I didn’t.” This suggests that there are other policies of the Obama administration that she does not feel comfortable with.
Smart people like Kagan continue to grow throughout their lives. She now must realize that no one theory of government is sufficient and that Socialism and Statism do not work. Several times she has said her early writings do not represent her current perspectives. Few people know what her current views are since it has served her purpose to obfuscate them.
Kagan may have fooled Obama.
Peter Landesman is the author of Spacemazes and The Mathematics of Global Warming and a mathematician.
Peter Landesman is the author of the 3D-maze book Spacemazes, with which children can have fun while learning mathematics.
Available at Amazon.com.
