Obama's Torpedo: The Strange Case of Elena Kagan

Who Is Elena Kagan?

There was a brief period in her early 20s when Elena Kagan expressed clear and forceful opinions on matters legal and political. That window of expressiveness abruptly closed and she has been a cipher ever since.

She was bright, had stellar grades, garnered glowing teacher recommendations, had boundless self-confidence and a winning personality. She is also a typical creature of the newly-emerged230 meritocratic system that now funnels bright kids onto elite college campuses.

Unlike earlier generations of students who were intellectual risk takers willing to challenge authority, Kagan's cohort was more subdued, strategic and calculating. Kagan's cohort deferentially regarded their professors as bosses to be placated. Altogether, the descriptions of Kagan by her friends and acquaintances paint a portrait of someone almost super-humanly cautious.

Even as she pursued legal scholarship Ms. Kagan shunned the contest of ideas. Her writings are few and painstakingly non-ideological. Her five meager law-review articles are dryly technical on First Amendment law and administrative-procedure issues. She has contributed virtually nothing to any public debate; she has had no novel insights, ever.

Elena Kagan's public speeches are devoid of passion; they are, in fact, bland to the point of stupefaction. In 2005, when Kagan gave a lecture about women in the legal profession she had a golden opportunity to unload about the highly-charged issue of the conflict between womens' professional commitments and the demands of a home life. Instead, Kagan was a fountain of dull techno-babble:

“Charting a course for the profession in these times will require sustained cooperation between practitioners with the experience and wisdom to identify problems and implement solutions, and academic researchers with the ability to generate the systematic and unbiased research on which these solutions must be based.”

Yikes! And she can go on like this for hours. Kagan's one and only display of urgency was her executive decision to ban the military from engaging students in Harvard Law School's career office. She was cranked about what she deliberately mis-characterized as “the military's” policy of “don't ask, don't tell.” In truth, it was the people's policy, written into law by a Democrat Congress and signed into law by Bill Clinton, in whose White House Elena Kagan served willingly. Kagan chose to punish the military because “gay rights” are a deeply personal matter to her. But even here she covered her tracks, telling senators that, “The position I took does not entail a view on the exclusion of R.O.T.C. from college campuses, and I never expressed a position on the exclusion of R.O.T.C. from Harvard.”

Given her caution and blandness, Elena Kagan was the perfect candidate to confront America's current confirmation process – a process that penalizes imagination and rewards wariness and stealth. She had a gift for gabbing on for hours and not revealing anything about herself. With an eerie self-control she held high-profile positions in the legal profession without uttering a word about any issues of the day; she was a leader without a distinctive voice. She entered and departed academia without leaving a footprint. We know almost nothing of her values and perspectives because she intended that we never know them. There are, however, fragments of her life and writings that, together, form a coherent portrait of Elena Kagan.

Kagan's friends and colleagues consistently describe her as a social liberal. Charles Fried, a jurist at Harvard, says, “I do not doubt that her heart beats on the left.” That was to be expected since Kagan grew to maturity in the airless, precincts of Manhattan, Princeton, the University of Chicago and Harvard Law. After all that, she was perfectly prepared to tell us all how the law resonates in the lives of folks living in cramped leftist enclaves.

Obama's nomination of Kagan for our Supreme Court has been called a case of one professor choosing another professor, except Obama was never a professor of anything, he was just some guy the real professors called to fill in for them when their cars got stuck in the snow. Obama never achieved the tenure that is required to be a real professor at Harvard.

Obama graduated from Harvard Law in 1991, Kagan in 1986. Kagan joined the University of Chicago faculty in 1991, becoming a tenured professor in 1995; Obama taught some classes there from 1992 to 2004. Both of them made a point of publishing almost nothing; both of them were as silent as the Sphinx on the burning issues of their day. The two books with Obama's name on the covers are bereft of opinions that might have proven troublesome later on. Both of these calculating stealth strategists have advanced themselves by becoming blank slates. College campuses encourage intellectual conformity. When 89% of American professors declare themselves to be left-liberal progressives, in contrast to only 20% of the American population, then you know that college culture does not reflect the values of the average American.

In this environment people like Elena Kagan never have to voice an opinion; they can remain tight-lipped and everyone around them will simply assume that they share the assumptions of the university's group-think professoriate. University administrators routinely behave as though they had an obligation to suppress any free speech that offends them, using the blunt instruments of speech codes and “sensitivity” re-education classes. Barack Obama's arch manner as he dismisses his conservative critics as beyond the bounds of legitimacy is a habit instilled in him by his years of faculty-lounge conditioning.

George W. Bush, for all his faults, had a masters degree in business administration and a cabinet peppered with people with real-world experience; George gave us forty-nine straight months of hard-pumpin' prosperity. Obama's cabinet is bereft of anyone with private-sector business experience – its just another faculty lounge stuffed with failing leftist theorists. Obama has given us stagnation. Then, after all his failures, he goes and nominates Elena Kagan who has never been a judge on any court, federal, state, trial or appellate. Kagan's resume is so thin that she has invited comparisons to Harriet Miers, a Bush nominee whom Republicans rejected because of her inscrutability and her inexperience and whom Democrats denounced for being “too close” to President Bush.

Barack Obama and Elena Kagan share an affection for executive power. For decades presidents have attempted to increase their control over the federal agencies that regulate such things as land use, food safety, drug development and workplace rules. Agency directives carry the force of law. Every year these agencies, collectively, formulate ten times more regulations than Congress passes laws. In other words, the cumulative weight of agency regulations wildly exceeds all the legislation passed by the people's elected representatives. Any president who holds sway over all agency regulation is a virtual dictator who has usurped the powers of our legislature. “Elena Kagan, the Supreme Court nominee, has been a strong supporter of such efforts to expand presidential power over domestic affairs, her writings show.” (New York Times, “Kagan's Writings Back Wider Executive Powers,” 5/22/10).

Elena Kagan spent four years in the Clinton White House promoting Clinton's domestic agenda. A favorite device of the Clinton gang was to formulate new agency regulations to accomplish their ends unilaterally and beyond the teach of the Republican-led Congress. Kagan helped Clinton to usurp the law-making powers of Congress, thereby frustrating the will of the electorate. “That experience shaped her thinking about administrative law, said Richard H. Pildes, a New York University law professor.” (New York Times, 5/22/10).

In short, Kagan was untroubled about using administrative regulations to do an end run around Congress, the legitimate law-making branch of our government. The question now is whether Kagan will be equally untroubled about using judicial powers to do end runs around our elected legislators? Apparently so.

In her Oxford thesis Elena Kagan wrote admiringly of how the Supreme Court under Chief Justice Earl Warren “refused to confine itself” to the “largely negative and constraining role” of providing a check against the excesses of the legislative and executive branches of our government. “Time and again,” Kagan enthused, “the court asserted its right to do no less than lead the nation.”

The struggle for control of federal agencies began during the New Deal when Congress created many new agencies to manage technical matters and delegated its law-making powers to them. With the passage of time, presidents yearned to wrestle the law-making powers delegated to the agencies away from Congress and Congressional oversight committees. It was a power grab, plain and simple.

As a Harvard professor, Elena Kagan published two scholarly articles that promoted greater centralized control over federal agencies by the president. One article defended the president's tightening grip on federal agencies and asserted that courts should give enhanced deference to agency agendas if they were prompted by the White House.

Her second article proposed that the courts give special deference only to those agency actions that were taken at the behest of the agency administrator or his top aides, thereby creating an incentive to concentrate decision making at the top of the agency where the political appointees are concentrated. It was a bid to concentrate more power in the executive branch.

“When read altogether, both of these articles point toward strong central control of the federal bureaucracy,” observed Christopher S. Yoo, a University of Pennsylvania law professor. “The control goes to the agency head and the agency heads are, in turn, accountable to the president.” It's a master plan for concentrating ever more power in the hands of a single supreme executive; it's exactly what the framers of our Constitution sought to avoid.

Law-making powers must remain with the Congress; if Congress delegates some of its law-making powers to federal agencies, then the consequence is an illegitimate transfer of law-making powers to the executive branch of government, to the president in particular. The heads of agencies are under no legal obligation to bend to the will of the president: Barack Obama is the commander-in-chief of our military; he is not the commander of domestic American life. The president may request or plead or cajole in his efforts to sway agency heads to see things his way, but he cannot legitimately command them to do anything but obey the law.

Elena Kagan has demonstrated a total lack of respect for the time-honored separation of governmental powers. In her writings she baldly likens the head of an agency to the captain of a naval vessel who is in command of his ship but also subject to commands from his superior officer, whom Kagan falsely identifies as the president. Hers is a formula for dictatorship.

Is it any wonder that Barack Obama nominated Elena Kagan for a position on the Supreme Court? She was eager to steal legislative powers from Congress and hand them to Mr. Obama who had already hand-picked forty agency heads whom he fondly calls his “czars.” It's the Russian word for Caesars, which is what they are; they are Barack Obama's Little Caesars.

In practice, the president has enormous influence over the agency bosses because he has the power to fire them, so they are likely to favor the president with compliance. That said, the agency chiefs are more likely to resist political meddling if they are confident that the final decisions are theirs to make unless the president has the nerve to take the headline-grabbing step of firing them.

Her Beliefs on Paper

The most remote of Elena Kagan's written ruminations were, until recently, buried in the basement of the Seeley G. Mudd Manuscript Library – known as “The Vault” – at Princeton University. There they laid among the theses of Brook Shields, David Duchovny, Ralph Nader, Sonia Sotomayor, Michelle Obama and 60,000 others, until Barack Obama nominated her to the Supreme Court. After that they were eagerly sought by everyone desiring insight into the sympathies of the left-wing activist who had only briefly expressed her heartfelt political sympathies.

Kagan's thesis was titled “To the Final Conflict: Socialism in New York City, 1900-1933.” Her neatly typed, hardbound, 156-page thesis with her name on the spine elaborates the ultimately unsuccessful socialist movement in New York. She included a dedication to her parents and her brother, whose “involvement in radical causes” helped Kagan to clarify her own political ideas. After explaining how the socialists fell to squabbling amongst themselves, she concluded that:

“The story is a sad, but also a chastising one for those, who more than a half-century after socialism's decline, still wish to change America . . . American radicals cannot afford to become their own worst enemies. In unity lies their only hope.”

So Kagan was another “red-diaper baby,” steeped in radical ideas from infancy by radical parents in the hothouse leftist enclave called New York City. In this regard she resembles Barack Obama whose runaway daddy, a Kenyan Communist Party apparatchik, gifted to Barack, Jr. his collected pro-communist scribblings. These were the dreams from his father that Barack cherishes. According to Barack himself, his principle mentor was Frank Davis, a notorious communist thug.

Not long before she wrote her thesis bemoaning the fragmentation of the New York socialist movement, Elena Kagan was bemoaning the landslide election of Ronald Reagan:

“Even after the returns came in, I found it hard to conceive of the victories of these anonymous but Moral Majority-backed opponents of Senators Church, McGovern, Bayh and Culver, these avengers of 'innocent life' and the B-1 bomber, these beneficiaries of a general turn to the right and a profound disorganization on the left.
“In my more rational moments, I can now argue that the next few years will be marked by American disillusionment with conservative programs and solutions, and that a new, revitalized, perhaps more leftist left will once again come to the fore.”

We can only imagine her disappointment when President Reagan and his economic adviser, Arthur Laffer, put in place “conservative programs and solutions” that doubled revenues to the U.S. Treasury by vastly expanding the American economy with business-friendly policies that encouraged innovation and a rush to hire ever more American workers.

The Lesbian Question

When the Wall Street Journal published a front-page photo of Elena Kagan straddling home plate and gripping a Louisville slugger with both fists, it ignited a firestorm of protest. The Journal was accused of implying that Elena Kagan was a lesbian. “Throughout history, softball has been a focal point for lesbian women, so, in a sense, there's a kernel of truth in the stereotype,” says Pat Griffin, author of “Strong Women, Deep Closets: Lesbians and Homophobia in Sport.”

A similar cluckfest erupted back in 1982 when a sports-oriented film titled Personal Best included a lesbian romp by firelight. First the straight press were indignant, calling the scene a cheap-shot stereotype of female athletes as lesbians, then the female athletes responded to the straight press with the rejoinder, “What do you mean? We're all lesbians!” It was said in the same jokey way that blacks say, “Hey, we're all Baptists!” Stereotypes are over-generalized common observations.

The photo of Kagan at age 32, looking stolid in jeans and a baggy shirt and her signature short & parted butch hairstyle, was taken when she was an assistant professor at the University of Chicago. According to the New York Post: “The unmarried legal whiz . . . has long been the subject of rumors that she plays for the other team, but she has refused to comment.” (New York Post, 5/13/10).

Pat Griffin observed that softball was strongly identified as a women's game, especially at the high school and college level, and that lesbians have always been attracted to the game. When softball became popular after World War II, it offered lesbians a refuge where they could socialized with females and not conform to popular notions of lady-like behavior. So says Yvonne Zipter, author of “Diamonds Are a Dyke's Best Friend,” a study of softball and lesbianism.

When a CBS blogger posted a story stating that Kagan is a lesbian, the White House pounced on him. The White House denied that Kagan was a homosexual – something Elena Kagan has never done. The blogger, Ben Domenech, quickly pulled down his post, though he had only reiterated what was common banter among the righteous liberals at Harvard.

Clearly, the liberals don't really believe that being a homosexual is as value-neutral as they keep claiming it to be. Indeed, they are now taking the position that it is “outrageous” to seek the truth about a public figure's sexual orientation. If being straight or gay are really value-neutral and morally equivalent, then what harm is done by seeking the truth? The question “Are you gay?” does not probe the specifics of anyone's sex life; it is an inquiry about a person's orientation, about their world view, their identity and their acculturation. By angrily slamming Ben the Blogger, Team Obama was behaving as though rumors of Kagan's possible lesbianism were accusations of moral depravity.

A person is shaped by many influences, among them race, religion, gender, ethnic and economic history and sexual orientation. All of these influences shape our perceptions and our relationship to the human universe. For those of us older than Elena Kagan, her perceptions of the world will be influencing our lives for as long as we live. Who she is and what she is are topics of personal concern to us.

The same liberals who spent months telling us how much Supreme Court nominee Sonia Sotomayor's experiences as a poverty-stricken Puerto Rican in the Bronx made her a superior choice for the high court are now demanding that Elena Kagan's sexual orientation be locked in a closet forever. The very people who presented themselves as enlightened progressives when blabbing about every detail of Sotomayor's history are now declaring that Elena Kagan's sexual orientation is of no consequence. From the shrillness of their denunciations you'd think she'd been accused of necrophilia.

Team Obama has sent us a clear message that Kagan's gender is an immense qualification, but that her sexual orientation is, somehow, none of our concern. Meanwhile, the sycophantic media, taking its clues from Team Obama, asked no revealing questions. In a 4,500-word profile the New York Times managed to tell us exactly nothing about Elena Kagan's personal life: she never married; there are no ex-boyfriends or girlfriends; there are no anecdotes of dating or romance. Where does she live? Does she live alone? It's all a secret. The deepest insights we are offered are that she argued with her rabbi at her bat mitzvah, she enjoys women's softball very much and she likes to smoke cigars. Needless to say, the gay blogosphere was buzzing about her alleged lesbianism long before poor Ben at CBS got a smackdown from President Obama.

The president must answer to the voters and to Congress and, sometimes, to the media, but once Kagan was confirmed she was answerable to no one for the rest of her life. White House spokesman Ben LaBolt had lashed out at the CBS News webpost, calling the assertion that Elena Kagan is a lesbian “false charges,” which was an awkward characterization given that liberals take the position that there is nothing wrong with homosexuality. Former White House communications director Anita Dunn, who had joined Team Obama to advise on the Kagan nomination, chimed in, “When there's a gay nominee, there's a gay nominee, which will be a good thing, if they're qualified and should be on the court.” [Emphasis added]

In other words, liberals foresee no negative consequences from packing the Supreme Court with homosexuals, as long as “they're qualified.” The alternate narrative being used by liberals is that Kagan's manless, childless, life is emblematic of the sacrifices that career women in law must make. Writing in the New York Times, Laura M. Holson opens her article “Then Comes the Marriage Question” this way:

“Here we go again.
“For the second time in a year, a childless, unmarried woman in her 50s has been nominated to be a justice on the Supreme Court and the critics have come out swinging. This time Elena Kagan, the former dean of Harvard's law school, who is now solicitor general, has been described as having sacrificed a home and personal life in her quest for a brilliant legal career.
“It all sounds eerily like when Sonia Sotomayor, who is 55 and single after a brief marriage when she was younger, was appointed to the Supreme Court last August and had to deflect suggestions that she treated colleagues and close friends like an extended family because she had no children of her own”

Ms. Holson was answered succinctly by Ruth Marcus in her Newark Star Ledger article “The Arc of Women's Progress”:

“I was prepared to draw this conclusion until I went through the biographies of the nearly 50 women now serving on federal appeals courts. The overwhelming majority are (or, in some cases, were) married and have children. If there is a difference between male and female judges in terms of family status, it's not a glaring one.”

In other words, both Sonia Sotomayor and Elena Kagan have chosen to forgo marriage and children for reasons other than the demands of a legal career. The deeper question before us is this: Do the vast majority of Americans, 97% of whom are heterosexual, want to have their laws, customs and school curricula altered by powerful persons who are neither genuine men nor genuine women? What distinguishes homosexuality from all other personal distinctions, such as race, religion and ethnicity, is that homosexuality is the result of a natural developmental process gone awry. All heterosexuals arrive at their states of normalcy by pretty much the same per-programmed route. Homosexuals, by contrast, are turned toward same-sex attraction by a variety of genetic or environmental or experiential determinants. Male and female homosexuals share little more than the word homosexual.

For example, the vast majority of lesbians seem to be the consequence of prenatal exposure to elevated levels of the masculinizing hormone testosterone. Both sexes produce both estrogen and testosterone, but in wildly different proportions. These hormones are extremely influential, doing their assigned tasks in concentrations of only a few parts per billion in the bloodstream.

If a woman secretes elevated levels of testosterone during her pregnancy it will have the same formative effect on her unborn daughter's developing neurological architecture that testosterone secreted by a male fetus' own testicles would have on his developing neurological architecture. Because of her exposure to testosterone, the female fetus will be born a morphological female with a masculinized neurology. In other words, she'll be a skirt chaser. She will be a human and a female – these are biological categories. The categories of man and woman, however, are cultural categories and each culture defines the criteria for which behaviors define manhood and womanhood. The question before us is, “Can any female who is wired and oriented in ways that are alien to 97% of humanity qualify as a genuine woman?”

Females who look like women but who have never experienced the emotional dynamics of a normal women are, in truth, walking parodies of genuine women. The illusion of normalcy means a great deal to many lesbians, so much so that one of every three lesbians will fraudulently marry a genuine man to preserve her illusion of normalcy. Such fraudulence is not something that heterosexuals are obligated to collude in, especially when homosexuals are seeking positions of influence over us.

Elena Kagan has attained a lifelong position of immense influence and she is now answerable to no one. It was perfectly proper to ask her pointed questions about her world view. Those questions were not asked or went unanswered. New we are stuck with her.

If Elena Kagan is a lesbian, then that fact undermines the rationale for placing her on the high court. We were told that her lack of judicial experience was compensated for by her worldly experience. We were told that this worldly experience contributed to her wisdom. But if she is a lesbian, then she was born without that indwelling compass that genuine women use to navigate womanhood. Lesbianism might be likened to a sort of autism that prevents them from relating normally to the male half of humanity.

Sonia Sotomayor is another cause for concern. Nearly a quarter of our Supreme Court justices may now share this peculiar emotional blind spot. Lesbians can only experience the world as their nervous systems were wired to experience it. They will spend the rest of their lives experiencing the world differently than the 97% of humanity whose development did not go awry.

Kagan and the Military

Is Elena Kagan a cunning liar or just an innocent incubator of invented memories? Either way, her self-promoting testimony before the Senate Judiciary Committee about her anti-military activities bore scant resemblance to the accounts of eyewitnesses.

During her hearing of June 29, 2010, Elena Kagan testified that “The military had full access to our students at all times.” In truth, Kagan denied recruiters access to the law school's Office of Career Services and to the panoply of special services it provides. This is the resource that very nearly every student uses to find future employment, so denying the military access to the Office of Career Services could only be debilitating. To call this imposed handicap “full access” is a grotesque lie.

Worse yet, Kagan gave speeches inciting students to protest and obstruct recruiters at Harvard. The kindest word the Army had for Kagan's behavior was “stonewalling.” It was no small inconvenience for our military; they were seeking the best legal minds for future courtroom contests with America's unprincipled enemies. The challenge of the Guantanamo trials was looming.

Kagan attempted to conceal the damage she had caused by citing raw numbers that indicated an up tick in the recruitment of Harvard law graduates during Kagan's stint as dean. The raw numbers hide the fact that recruitment increased in spite of Kagan's best efforts to suffocate recruitment, which would have been more robust without Kagan's loudmouthed anti-military agitation. The fact is that those students who sought a military career did so in a hostile environment. Kagan had her shorts in a knot over “Don't Ask, Don't Tell,” the policy that disqualified openly homosexual persons from military service. Kagan habitually misrepresented this policy as the “military's” policy. It was no such thing.

The policy she slammed as “a moral injustice of the first order” was enacted by Congress and imposed on the military in 1993. It was signed into law by President Bill Clinton, a man Kagan was only too happy to work for after he signed it. Kagan also welcomed to the Harvard campus lots of lawmakers who had voted for the law she says she “abhors.” Has Kagan ever questioned the three Harvard academic chairs that are endowed by money from Saudi Arabia – that land of no-nonsense sharia law where homosexuals are given the death penalty? Of course not. Not a peep out of her.

Kagan wouldn't criticize the congressional Democrats who made the policy and she never took a principled stand against her employer's benefactors who kill homosexuals just for drill, but she dishonestly made a big self-serving show of damaging recruitment at Harvard over a policy that the military did not create and never made a big deal about. The overwhelming majority of soldiers separated from military service because of Don't Ask, Don't Tell were soldiers who deliberately outed themselves to get themselves an early discharge. Don't want to go to Iraq? Just tell 'em you're a hardcore anus pumper and they'll send some hapless hetero in your place. That's how thousands of gays got a free ride home.

So Kagan is a gutless political opportunist and self-promoter who would shamelessly say anything to claw her way onto the Supreme Court.

The Charm Offensive Begins

Papers sent to the Senate suggest that the White House began alerting candidates for the Supreme Court at least a month before 90-year-old John Paul Stevens announced his retirement. Elena Kagan says she was contacted on March 5, 2010; Justice Stevens announced his retirement on April 9th.

Once Kagan was chosen, every step of her elevation to the high court was choreographed by the White House. Special attention was paid to dampening the impact of revelations about her policy-making role and back-room maneuvers at the Clinton White House. Kagan's image needed burnishing.

Obama resorted to the “document dump” as a tactic for obscuring Kagan's history. Working closely with the Clinton presidential library in Little Rock, Team Obama released thousands of Kagan-related documents, week after week, on Friday afternoons when few people were paying attention, which puts stories gleaned from those documents in the Saturday newspapers, which are the least-read editions of the week.

The sly Barack dumped 11,000 e-mails Kagan had written, bundled with 70,000 more she had received during her stint with Clinton, he did this a mere week before the Senate Judiciary Committee was due to begin Kagan's confirmation. A close Obama ally, Senator Patrick Leahy (D.,Vt.), promptly announced that he couldn't imagine postponing his panel's June 28th hearing date, despite complaints from Republicans that the carefully-crafted document dump gave them no time to review Kagan's true history.

Kagan also benefited from distractions such as the Gulf oil spill, the mid-term elections, political debates and Obama's downward-spiraling economy, all of which drowned out much of the debate over Kagan's worthiness to serve for a lifetime on the Supreme Court. Obama's aides monitored media for any criticism of Kagan, often pouncing on critical reporters within minutes of publication or broadcast. Because Kagan was so clearly Obama's ideological twin, Obama's flacks worked overtime to squelch any suggestion that Kagan would be Obama's rubber stamp on the Supreme Court.

There was no doubt where Kagan's sympathies lay; she had been a political activist from early adulthood. At age 20 (1980) Kagan spent 14-hour days toiling for the election of Elizabeth Holtzman, a far-left New York congresswoman running for the U.S. Senate. When Holtzman lost to Alphonse D'Amato, a bitter Kagan burst into tears. “Self pity sneaks up,” she wrote a week later. “And I wonder how all this could possibly have happened and where on Earth I'll be able to get a job next year.”

Kagan clerked for federal judge Abner Mikva and for Supreme Court Justice Thurgood Marshall, and she was research assistant to Laurence Tribe, all prominent liberals. Kagan worked for the doomed presidential campaign of Michael Dukakis. Later she was an inside operator for the Clinton administration.

Abner J. Mikva hired Kagan as a law clerk while he was on a federal appeals court in Washington, DC. It was Mikva who recommended Kagan to Thurgood Marshall. “If she suits you, she'll suit me,” Marshall had told Mikva. It was Mikva who would promote Kagan again for a professorship at the University of Chicago, only to woo her away to work with him at the Clinton White House. Mikva had also offered a clerkship to a young Barack Obama who turned him down, choosing instead to get his feet wet in Chicago politics.

Mikva would later become an Obama supporter and adviser. So Mikva, now 85 and a liberal icon, was a mentor to Kagan and fostered every important step of her early odyssey. Senator Jeff Sessions (R., Ala.) denounced Kagan's roster of “judicial heroes,” including Justice Marshall, Judge Mikva, and Aharon Barak, the retired president of the Supreme Court of Israel, as the vanguard of the left-wing judicial activist movement.

Kagan's Confirmation

Back in 1995 Elena Kagan was full of bluster and bravado. Back then she denounced Senate confirmation hearings for the Supreme Court as “a vapid and hollow charade” because the nominees were not compelled to reveal their thoughts about such matters as abortion, affirmative action and privacy. She called it “an embarrassment” that “senators today do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues.” Kagan ripped the Senate testimony of nominee Clarence Thomas as a “national laughingstock.” She vented her frustration that nominees for a life-long term on the nation's highest court were permitted to “stonewall” the senators and refuse to discuss both their “broad judicial philosophy” and their “views on particular constitutional issues.”

Yeah, she was a tough talker back then. Kagan declared that “The critical inquiry . . . concerns the votes she [the nominee] would cast, the perspective she would add (or augment) and the direction she would move the institution . . . If that is too results oriented, so be it.”

When nominees refused to discuss their beliefs on controversial issues, insisting that to do so would undermine their impartiality, Elena Kagan attacked them, declaring that their refusal to come clean deprived the Senate and the public of the opportunity to evaluate them. She righteously proclaimed:

“When the Senate ceases to engage nominees in a meaningful discussion of legal views, the confirmation process takes on an air of vacuity and farce.”

Elena Kagan went further, declaring that the need for probing inquiry by the Senate “is much greater when (as was true for Justices David Souter and Thomas) the prior record and writings of the nominee leave real uncertainty as to the nominee's legal philosophy.”

Both Souter and Thomas had served briefly on U.S. appeals courts before being nominated by George W. Bush. Kagan, by contrast, had no judicial experience whatsoever. In case anyone had missed her point, Kagan ridiculed the confirmation process as “a repetition of platitudes,” a “hollow charade” and a “ritual dance” that deprived us all of the opportunity to learn something significant about a nominee for the lifetime job that Kagan called a “seat of power and a public trust.”

When the moment of Elena Kagan's Senate confirmation finally arrived the brazen bluster that Elena Kagan had been spouting was nowhere to be found. Her testimony was evasive and elusive. When she wasn't killing time by blabbing mind-numbing boilerplate she was calculating in her answers to the point of being cagey. When she was asked a specific question she declined to answer it on the grounds that she did not want to forecast her views; when she was asked a general question she refused to answer it on the grounds that a judge should not deal in abstractions or hypothetical questions.

At Tuesday's hearing (7/21/10) Senator Herb Kohl (D., Wis.) was dismayed by Kagan's “platitudes and generalities;” Senator Jon Kyl (R., Ariz.) accused Kagan of playing “the same game of hide-the-ball” as previous nominees. The closest thing to an insight into what sort of judge Kagan would be came when Kagan distanced herself from Chief Justice Roberts' analogy that a judge is like a baseball umpire who neutrally calls balls and strikes. Neutrality, it seems, isn't her thing.

A month earlier a New York Times front-page article on the hearings opened with this:

“Elena Kagan deflected questions about her own views on gun rights and abortion during her Supreme Court confirmation hearings on Tuesday, instead describing Supreme Court precedents. She declined to say whether terrorism suspects must be warned of the right to remain silent, saying the issue was 'quite likely to get to the courts.'” (6/30/10)

Kagan refused to say whether, in her opinion, the Supreme Court was correct in taking the 2000 case of Bush v. Gore. She said the issue of the high court's intervention in disputed elections was “an important and difficult question,” but one that might come before her if she were confirmed.

When senators reminded her that she had once been a forceful advocate for candor, Kagan took refuge in her new-found belief that answering questions might “provide some kind of hints” about her views – which is exactly the purpose of holding these hearings.

When confronted with her own pleas for candor in the confirmation process, Kagan withered:

“I think that that was wrong. I think that – in particular, that it wouldn't be appropriate for me to talk about what I think about past cases – you know, to grade cases – because those cases themselves might again come before the court.”

This pathetic disclaimer set the tone for a frustrating day of cat-and-mouse as Elena Kagan struggled to remain a blank slate. What made her testimony doubly grotesque was the flashy manner in which Barack Obama had assured us that Kagan was “open and forthcoming.” A frustrated Arlen Specter (D., Penn.) cut her off, complaining that, “I don't think I'm making too much progress.” Senator Tom Coburn (R., Okla.) complained that “She's doing exactly what she criticized other nominees for doing: she's dancing.”

Making matters worse, Kagan lapsed into Borscht Belt humor. She announced that if Supreme Court oral arguments were televised, “It means I'd have to get my hair done more often.” When Senator Lindsey Graham (R., S.Car.) asked her where she was when a terrorist attempted to explode an airliner in flight on Christmas Day of 2009, Kagan quipped, “You know, like all Jews, I was probably at a Chinese restaurant.” There was laughter all around. When you have nothing substantive to say, try charm. It certainly worked for Obama.

When Senator Orrin Hatch (R., Utah) asked about her written opinion that it would be “a disaster” if the American College of Obstetricians and Gynecologists were to honestly admit that partial-birth abortions were never medically necessary, Kagan responded that the disaster would have been if that eminent organization's statement had not included the opinion that sometimes partial-birth abortions were “medically best.” The slippery phrase “medically best” would include such nebulous notions as the mother's emotions; Kagan wanted an escape clause that would permit a partial birth abortion on the flimsiest of pretexts.

Kagan wrote hundreds of memoranda during her 1997-98 stint as a law clerk for the deeply liberal Thurgood Marshall. Among them is her terse dismissal of a man who challenged his conviction under the District of Columbia's strict gun-control ordinance on the grounds that the ordinance violated his personal Second Amendment right to bear arms. Kagan's blunt response in August of 1987 was, “I'm not sympathetic.” In 2008 the Supreme Court voted 5 to 4 to strike down the D.C. ordinance on exactly that basis, declaring the right to bear arms to be a right of individual citizens, not organized militias.

When Senator Tom Coburn asked Kagan if she had accepted the ruling upholding the right of individuals to possess firearms she answered yes, but she refused to say if she believed there was a “fundamental right” to bear arms that applied to the states as well as the federal government.

In a June 1988 memorandum Elena Kagan was miffed because the Reagan administration had won court cases against over-reaching federal-agency regulators. In one case, the administration had successfully argued that a ski lodge did not have to present a detailed environmental-impact study before receiving a building permit in a national forest, on the grounds that the applicable federal statute did not require such a study. This finding of fact upset Elena Kagan, who imagined that the agency's actions were “consistent with the language and purpose of the statute” – “and makes a great deal of policy sense.”

This last phrase identified Elena Kagan as a political actor. The introduction of political policy considerations into judicial decision making is commonly called “legislating from the bench.”

Republicans were dismayed by Kagan's lack of experience as a judge or a courtroom lawyer; they characterized her as more of a political figure that a legal one. “It's not just that she has never been a judge,” observed Senator Jeff Sessions, the ranking Republican on the panel. “She has barely practiced law, and not with the intensity and duration from which real understanding occurs.” He added that, “Ms. Kagan has less real legal experience than any nominee in the last fifty years.”

Democrats characterized Elena Kagan's lack of judicial experience as “refreshing.” After the Democrats admitted to Kagan's lack of experience it was odd to hear Senator Lindsey Graham, the one and only Republican to vote for Ms. Kagan, declare that, “I'm going to vote for Ms. Kagan because I believe the last election had consequences. This president chose someone who is qualified, who has the experience and knowledge to serve on the Supreme Court.” He was saying, in effect, that Obama's election was a big green light for all of Obama's Supreme Court nominees. Perhaps Lindsey Graham forgot that when Barack Obama was a senator he showed President Bush no such deference. Obama had declared that it was permissible to vote against a nominee because of his judicial philosophy; Obama had joined an effort to filibuster the confirmation of Justice Samuel A. Alito, Jr. Hadn't the Democrats ganged up to prevent even a hearing for Miguel Estrada, a George W. Bush nominee to a federal court of appeals?

For all her former bluster about the sorry state of Supreme Court confirmation hearings, calling them “vapid and hollow” and devoid of “legal analysis,” the calculating Ms. Kagan was content to have her own confirmation hearing be a ritual of empty gestures and bad faith.

Is Elena Kagan Obama's Torpedo

It seems only proper that Elena Kagan should recuse herself from sitting in judgment of any lawsuit filed by 21 states against the onerous provisions of ObamaCare. Kagan, however, has all but declared her intention of passing judgment on these cases. She has announced that she had no exposure to those cases in her duties as Obama's solicitor general. When she was asked if she had attended any meetings during which Florida v. U.S. Department of Health and Human Services was discussed, Ms. Kagan responded that, “I attended at least one meeting where the existence of the litigation was briefly mentioned, but none where any substantive discussion of the ligigation occurred.” She added that she was never once asked her opinion about the case.

This is surpassingly unusual. After all, as the Solicitor General her function was to be the Obama administration's preeminent authority on the Constitution. So what happened here?

The Florida lawsuit was filed on March 23, 2010. The op-ed pages were ablaze with debate about the merits of the Florida andf Virginia lawsuits. A scant six weeks later, on May 10th, Kagan was nominated for a seat on the Supreme Court. How could she have avoided hearing or saying anything about these Constitutional challenges? Did she, perhaps, recuse herself from these controversies while working at the Justice Department, lest she be forced to recuse herself when seated on the high bench? Her history of extreme caution, together with her demonstrated political gamesmanship, suggests that she did exactly that. She's Obama's stealth torpedo whose mission is to save ObamaCare's outrageous insurance mandate. Kagan and Sotomayor are the first two building blocks of what Obama hopes will be a decades-long liberal majority on the Supreme Court. Sotomayor is already marching in lockstep with the Court's aging liberal faction.

Elena Kagan, Paula Jones & White Water

Elena Kagan's fingerprints are all over Bill Clinton's efforts to deny Paula Jones a prompt hearing of her sexual harassment lawsuit against Mr. Clinton. Jones was an Arkansas state employee who alleged that, in 1991, then-governor Bill Clinton had whipped out his penis in a Little Rock hotel room and leaned on her to service his sexual urgency. Ms. Jones' harassment suit was filed in 1994. Bill Clinton sought to delay any hearing of Ms.Jones' lawsuit until the end of his presidency. After losing before a St. Louis federal appeals court, Clinton appealed to the Supreme Court. Elena Kagan was in the middle of it all, giving Clinton counsel on how best to frustrate the Jones lawsuit. Memos written by Kagan were included in a document dump from the Clinton Library, though much was redacted as still too sensitive for publication.

The Supreme Court took the Jones case and heard arguments in January of 1997. In a unanimous decision the court rejected Clinton's assertion that he had some sort of presidential immunity from prosecution for personal acts committed by him before his election. Clinton eventually settled the case with Paula Jones for an undisclosed amount.

As Clinton's associate counsel, and later as his deputy domestic policy director, Elena Kagan toiled to save Bill Clinton from the Whitewater land-deal scandal. She struggled to deflect a Senate subpoena seeking notes from closed-door meetings; she solicited uplifting testimonials and op-ed articles in defense of Bill Clinton from the liberal media, going so far as to ghostwrite or edit some of them herself.

The dumped documents reveal Kagan to be an ambitious climber. According to the New York Times, “She angled to become head of the Justice Department's Office of Legal Counsel, collecting recommendation letters and telling a senior White House official that she had the support of then-Senator Joseph R. Biden, Jr., a previous boss.” (6/12/10)

Elena Kagan and the Bush v. Gore Case

In her handwritten notes for a speech she gave to Princeton University alumni in 2003, Elena Kagan cited the 2000 Supreme Court decision in the case of Bush v. Gore which ended Al Gore's quest for evermore ballot recounts in Florida. Ms. Kagan noted the case as an example of her belief that judges' reasoning “necessarily + inevitably” is entangled with “political + policy questions.”

“Bush v. Gore is only the tip of the iceberg,” Kagan wrote. “It happens all over. And we know it does.” She added that courts “should defer to political branches” and “judicial review should be exercised with caution.”

Liberals have disparaged the Bush v. Gore ruling because it split along ideological lines with the liberal justices voting to give Al Gore all the recounts he requested on Al Gore's personal terms, no matter how outlandish. Vice President Gore had been doing badly from the start because President Clinton had outraged Florida's Cuban-American community by sending his machine gun packing commandos to storm a private Florida home and seize a small Cuban-refugee child, Elian Gonzales, whose mother had drowned at sea during her harrowing escape from communist Cuba. Clinton then returned the child to Cuba. Political analysts estimated that this single outrageous act cost Al Gore 40,000 Cuban-American votes.

When the vote began to go against him, Al Gore began to question the very mechanics of the voting process. Clearly printed instructions posted in every voting place informed every voter how to make a valid ballot. All a voter had to do was remove a tiny paper tab from a printed ballot next to the name of the candidate he was voting for. The tab, called a chad, had to be completely removed from the paper ballot, otherwise the ballot was considered a spoiled ballot and would not be counted. Each of the fifty states are free to chose the mechanics of their balloting. Florida had chosen the paper ballot with punch-out chads; in 2000 the ballot had been designed by Democrat. Nationally, a spoiled-ballot rate of 4% is considered typical.

When Al Gore failed to pull ahead in Florida he pulled out all the stops. Gore dispatched a legal hit team to quash overseas absentee ballots by citizens in our military, because those votes had arrived late from the combat zones and because military personnel tend to be conservatives.

The vice president sought vote recounts only in carefully-chosen areas where he desperately hoped to garner more votes. To get such recounts he would need the permission of the deeply-Democrat Florida Supreme Court. Unfortunately for Gore, he couldn't just whine to the court; he needed a legal reason to go to court. Al Gore needed to invent a reason why the courts should hear his complaint.

Team Gore had a scheme. They contacted a Texas crew that specialized in “push polling.” A push poll is a telephone canvas that pretends to be seeking someone's opinion, but is really trying to implant a fear in the minds of the people who are contacted. It is an attempt to change public opinion. Team Gore directed the push pollers to telephone elderly Democrat voters in Florida and ask them if they might have accidentally cast their ballots for conservative candidate Patrick Buchanan instead of Al Gore because of the “confusing” design printed ballot. It was all a fraud; the geezers hadn't voted for Buchanan, but the push poll prompted elderly Democrats to call their congressmen and express their fears. This wave of Gore-generated fear was the pretext Al Gore needed to take his complaint to court.

Once he got a hearing before the Florida Supreme Court, the Democrat justices were only too happy to agree to anything Al Gore requested of them. Gore was allowed recounts in selected precincts. When Gore complained that voters had been “disenfranchised” by turning in improperly completed paper ballots, foot soldiers were dispatched to examine those ballots with magnifying lenses to discern if they had any partially-detached “hanging chads” or pock-marked “dimpled chads” from which the voters' intent might be divined. It was Al Gore's desperate attempt to validate spoiled ballots.

Finally, Team Bush had had enough. The adults petitioned the United States Supreme Court to expeditiously settle the matter because it was obvious to everyone that the mess in Florida was headed for the Supreme Court. The high court accepted the Bush petition to avert a national crisis.

Once the matter was before the high court the justices needed some standard by which to evaluate the Florida ballot. Justice Sandra Day O'Connor recommended using the black-letter text of the voting instructions posted in every polling place in Florida. Voters had been informed how to vote; they had been told that they could have another paper ballot if they spoiled their first ballot. In fact, they could have all the ballots they requested until they got it right. The voters had been told exactly how to create a valid ballot. So the Supreme Court wisely decided that there would be no counting of hanging chads or dimpled chads – only proper ballots.

After this reasonable decision the liberals went nuts; they shrieked that George Bush had “been selected, not elected,” by the Supreme Court. It was a grotesque lie. After the dust settled, a consortium of Florida newspapers requested that the state give them all the ballots so that they could be tallied by a nationally-recognized accounting company. The result? Using the counting method preferred by Al Gore, George W. Bush won the Florida vote in 2000.

So, when Elena Kagan pouts about whether the Supreme Court should have accepted Bush v. Gore she's blowing smoke. There was a national crisis and an expedited decision by the high court was the best way to get the nation moving again. All the Supreme Court did was to tell the Democrats in Florida to stick to the rules that everyone had agreed upon before the election began.

Kagan and the Public Safely Rule

The Times Square bomber, Faisal Shalizad, was arrested at JFK airport and grilled for several hours by federal agents before he was read the Miranda rule. Likewise, Umar Farouk, the Muslim jihadist who attempted to detonate a bomb aboard an airliner in flight on Christmas Day, was interviewed at length before hearing about the Miranda rule. Both of these interrogations were legal under the “public safely exception” legitimized by the Supreme Court decision in the case New York v. Quarles.

It should be noted that Justice Thurgood Marshall, for whom Kagan clerked, and Justice John Paul Stevens, whom Kagan replaced, were both opposed to the public safety exception and were among the dissenting Justices in this case.

The facts in New York v. Quarles were never in dispute. The police had chased a rape suspect into a supermarket and then lost sight of him. While lost from view, the suspect discarded his loaded .38 caliber pistol. When the cops finally cornered him they saw his empty shoulder holster and asked him where his weapon was. The suspect pointed his finger and said, “Over there.” The police found the loaded handgun where the suspect had pointed. All of this took only seconds and the police had not advised the suspect of his Miranda right to remain silent.

The question before the Supreme Court was whether the words “over there” and the recovered pistol could be admitted as evidence. The Court decided that they could be admitted under a “public safety exception” for law enforcement personnel acting in the public interest. The safety exception holds a special appeal in an era when terrorists employ extremely potent explosives that can sweep away hundreds of lives in an instant.

But in the opinion of Thurgood Marshall and John Paul Stevens the public safety exception to the Miranda rule was “an unwise and unprincipled departure from our Fifth Amendment precedents,” and was bound up in a “chimerical quest for public safety.”

In the ticking-time-bomb scenario the urgent need for life-saving information is anything but chimerical. Nonetheless, Barack Obama invoked Justice Stevens' record of “wisdom” as a shining inspiration for Elena Kagan. Obama said that Stevens “has brought to each case not just mastery of the letter of the law, but a keen understanding of its impact on people's lives.” Really? Like the impact of allowing bomb crafters to dummy up and lawyer up when caught in the act?

Looking Forward

At age 50 Elena Kagan is the youngest justice on the Supreme Court and in a position to influence American jurisprudence for decades to come. As a liberal replacing the liberal John Paul Stevens, Kagan will sit on a Court that, for the first time in American history, does not include a single Protestant; henceforth, all the justices are either Catholics or Jews.

Kagan belongs to that elite 4% of Americans with a net worth of over one million dollars. At last count her net worth was $1.76 million.

The three women on the Court are all New York liberals. Together with Justice Stephen G. Breyer, they form the high court's liberal wing, now composed of one Catholic and three New York Jews. As liberals they are part of the 20% minority of Americans who self-identify as liberals.

“For most New Yorkers, they will look at the liberal minority and say, 'That's us, that's our America,” explained Professor Bonventre of the Albany Law School, “and so when the court renders liberal decisions and you have all those four, the three women and the Jewish guy, it will make complete sense to New Yorkers, whereas for the South and the Bible Belt, people are going to say, 'They don't understand the rest of America.'” He added that the “ethnic-gender-religious composition of the liberals on the court” would underscore their differences with the conservative majority on the Court. It will also emphasize their distance from American conservatives who now outnumber liberals by more than two to one. The remaining 38% of Americans may call themselves such things as “moderate” or “independent,” but as a group they are inclined to be socially traditional and ill at ease with radical social experimentation. They are, at heart, rather conservative.

It is foolish to believe that the Almighty has endowed judges with superior wisdom or insight; many judges are mediocre at best. A scant one hundred justices have sat on the Supreme Court. They are secretive, unelected and unaccountable, and yet they routinely negate the decisions of our elected state and federal representatives. A mere five justices can dictate the cultural, economic and security policies of all America.

Our constitutional system was designed to diffuse governmental authority among the state governments and the federal government and also the three branches of the federal government. This design has been disfigured over the years by a shamelessly activist federal judiciary. The Supreme Court has led the way in usurping the authority that rightfully belongs to the elected branches of our government. The justices have no legitimate business legislating from the bench or dabbling in matters of politics or policy. They certainly have no business rewriting our Constitution. When a small club of selected lawyers in black robes exceeds its rightful authority and usurps the powers rightfully exercised by the people's elected representatives, then that small club has disenfranchised the citizens of America.

Elena Kagan has done her best to remain a cipher; what little we know of her is not encouraging. She is, at heart, a statist. Her arguments have favored the accumulation of power by a select few bureaucrats at the top, be they the president and his chosen lieutenants or the unelected bosses of agencies who diminish our liberty with dictates that carry the force of law.

Again and again, Elena Kagan has expressed her favoritism for judicial decisions that promote the policies of the executive branch; she is untroubled by the liberal use of judicial fiat to promote the policies of the bureaucrats she admires. She is, at heart, a policy wonk who is inclined by sentiment to favor left-wing adventures in judicial activism. Her total lack of judicial experience made her Barack Obama's ideal nominee – she was a leftist academic ideologue who had concealed her extremism behind a mask of studied blandness; in this she is very like Obama himself. In her he saw a soul mate and a fellow traveler. She would be inclined to grant him what he wanted. She would be Obama's stealth torpedo.