“Americans are more likely to speak of a golden past than of a golden future, of capitalism’s glories than of socialism’s greatness,” she wrote in her thesis. “Conformity overrides dissent; the desire to conserve has overwhelmed the urge to alter. Such a state of affairs cries out for explanation.”
She called the story of the socialist movement’s demise “a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America … In unity lies their only hope.”
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As much as Liberals want to make the concern Chairman Steele raised about Marshall and slavery, it isn’t (and if it was, I’d note the Chairman admires Justice Marshall breaking barriers both as a lawyer and a justice, and helped rename BWI airport after him). It’s about how Elena Kagan, who is being nominated for a lifetime appointment to the highest court in the land, views the role of the courts in our society. In the same law review article, Kagan endorses the view that the Court’s primary role is to “show special solicitude” for people a judge has empathy for. Liberals would much rather talk about whose view she is endorsing rather than the substance of that view. That they would prefer to do so is unsurprising, because her view of the Court’s primary mission is at odds with the majority of Americans.
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[T]he way she handled professors Larry Tribe and Charles Ogletree, when they both were caught swiping the words of others, seems to violate basic principles of fairness.
She let the professors off easy for the kind of offense that for which any Harvard undergraduate or law school would have been suspended if not expelled…
It also could say a lot about Kagan would behave on the bench. Through inaction and disingenuous statements that disregarded Harvard’s own disciplinary policy Kagan exonerated Tribe and Ogletree of any malfeasance.
In other words, like a good liberal activist judge, she ignored precedent and the plain meaning of relevant texts to create an outcome that struck her fancy.
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But where, precisely, has Ms. Kagan been during the legal whirlwinds of the last few years, as issues like executive power, same-sex marriage, the rights of the accused and proper application of the death penalty have raged through the courts? As dean of the Harvard Law School, she spoke out against the military’s discrimination against gay and lesbian soldiers, but many students and professors there have expressed chagrin that she did not take a more forceful stance. And she has stated that “there is no federal constitutional right to same-sex marriage.” Her positions on other current issues are either unclear — or possibly to the right of Justice Stevens…
It may be unfair to blame Ms. Kagan for some of the positions she has taken as solicitor general, a job that requires her to defend the government’s views. But a search for her own views on dozens of other matters yields little. Though she has said that she respects precedents on abortion, she has said virtually nothing on racial preferences, gun rights or private property rights. When the constitutionality of President Obama’s health care law reaches the Supreme Court, as it probably will, given the forceful challenges now being waged in several states, would she reject the argument that Washington has overstepped its role in requiring health insurance? There is no record to suggest an answer.
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Via the Right Scoop.
