Commentary Magazine


Topic: Harvard Law School

Harvard’s “First Woman of Color”

Politico reports an update on the Elizabeth Warren ancestry story that just won’t die:

Elizabeth Warren has pushed back hard on questions about a Harvard Crimson piece in 1996 that described her as Native American, saying she had no idea the school where she taught law was billing her that way and saying it never came up during her hiring a year earlier, which others have backed up.

But a 1997 Fordham Law Review piece described her as Harvard Law School’s “first woman of color,” based, according to the notes at the bottom of the story, on a “telephone interview with Michael Chmura, News Director, Harvard Law (Aug. 6, 1996).”

The mention was in the middle of a lengthy and heavily-annotated Fordham piece on diversity and affirmative action and women. The title of the piece, by Laura Padilla, was “Intersectionality and positionality: Situating women of color in the affirmative action dialogue.”

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Politico reports an update on the Elizabeth Warren ancestry story that just won’t die:

Elizabeth Warren has pushed back hard on questions about a Harvard Crimson piece in 1996 that described her as Native American, saying she had no idea the school where she taught law was billing her that way and saying it never came up during her hiring a year earlier, which others have backed up.

But a 1997 Fordham Law Review piece described her as Harvard Law School’s “first woman of color,” based, according to the notes at the bottom of the story, on a “telephone interview with Michael Chmura, News Director, Harvard Law (Aug. 6, 1996).”

The mention was in the middle of a lengthy and heavily-annotated Fordham piece on diversity and affirmative action and women. The title of the piece, by Laura Padilla, was “Intersectionality and positionality: Situating women of color in the affirmative action dialogue.”

I’m not sure who this looks worse for: Harvard Law or Elizabeth Warren. Does Warren still hold the law school’s distinction as its “first woman of color”? Apparently not. That label has since been granted to Lani Guinier, President Clinton’s controversial assistant attorney general nominee, who was tapped for a tenured Harvard Law position in 1998.

So what happened between the years of 1996 and 1998? Why did the school decide it no longer considered Warren its first “woman of color”? Was it because, as the New England Historical Genealogical Society announced this week, there appears to be no proof of Warren’s claims she is 1/32 Cherokee?

Sen. Scott Brown has continued to call on Harvard to release Warren’s hiring records. Based on the Fordham article, it seems the law school has some responsibility to clear up – for history’s sake – the confusion over who it hired as its first “woman of color.”

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Toomey Support for DADT Repeal Highlights a Conservative’s Independent Streak

The announcement that Pennsylvania Senator-elect Pat Toomey will support repeal of the Don’t Ask, Don’t Tell policy about gays in the military may signal the end of this pointless rule. Those who haven’t followed Toomey’s career may be surprised that a hard-core conservative Republican and devout pro-life Catholic like Toomey would support a gay-rights measure. But Toomey’s libertarian instincts and abhorrence of big government have led him to the correct conclusion that seeking to ban a portion of the population that might usefully serve their country is a mistake. Nor is this a new position for Toomey.

During his successful Senate campaign, Toomey made it clear that he wanted to end DADT. In fact, he mentioned it in an op-ed in the Pittsburgh Post-Gazette he wrote last summer in which he detailed why he would have voted against Elena Kagan’s nomination to the Supreme Court. In the piece, he criticized Kagan for banning military recruiters from Harvard Law School because of DADT. Toomey wrote:

I share the view that the “don’t ask, don’t tell,” policy regarding gay servicemen and women has outlived its usefulness and, subject to the military’s conclusion of the feasibility of removing it, I support its repeal. However, one’s disagreement with a federal law does not give one license to circumvent it.

While Toomey won’t be able to cast a vote on the repeal attempt during the lame-duck session of Congress, his willingness to do so after January may change the mathematics of this debate. Moreover, Toomey — whose reputation as a pro-life stalwart, Tea Party favorite, and libertarian hardliner on fiscal matters renders him largely impervious to attacks from the right — could help give cover to other wavering Republicans. Previously, the only Republicans to announce support for the end of DADT were the liberal Susan Collins and Olympia Snowe of Maine.

Toomey’s stand on gays in the military might put him in conflict with conservative culture-war advocates, who will lament his willingness to put this issue to rest. Indeed, this puts him at odds with Rick Santorum, the former Pennsylvania senator who has recently been beating the bushes in New Hampshire promoting a possible 2012 presidential candidacy (though not too many people are taking Santorum’s ego-trip of a campaign seriously). But the irony here is that six years ago, Santorum, the man who now proclaims himself as the true guardian of conservative values, did his best to torpedo Toomey’s primary challenge of liberal Arlen Specter. Though Santorum and President Bush urged Toomey to step aside, he wouldn’t compromise and stayed in the race, ultimately narrowly losing the primary to Specter. Six years later, Toomey, who stuck to his guns on his conservative principles, is now about to take the place of the turncoat Specter, who was beaten out for the Democratic nomination earlier this year.

Six years is a lifetime in politics, but Pennsylvania Democrats are already looking ahead to 2016, since they believe the election of a conservative like Toomey was a fluke that cannot be repeated. They may be right, but what we will see until then is a senator who denounces big government and actually means it. That may not earn Toomey many friends in a state that has long counted upon its representatives to fight for local special interests, something that Toomey is unlikely to do. But as we are seeing with the issue of gays in the military, Toomey’s principled independence is a factor that political observers ought not to take for granted.

The announcement that Pennsylvania Senator-elect Pat Toomey will support repeal of the Don’t Ask, Don’t Tell policy about gays in the military may signal the end of this pointless rule. Those who haven’t followed Toomey’s career may be surprised that a hard-core conservative Republican and devout pro-life Catholic like Toomey would support a gay-rights measure. But Toomey’s libertarian instincts and abhorrence of big government have led him to the correct conclusion that seeking to ban a portion of the population that might usefully serve their country is a mistake. Nor is this a new position for Toomey.

During his successful Senate campaign, Toomey made it clear that he wanted to end DADT. In fact, he mentioned it in an op-ed in the Pittsburgh Post-Gazette he wrote last summer in which he detailed why he would have voted against Elena Kagan’s nomination to the Supreme Court. In the piece, he criticized Kagan for banning military recruiters from Harvard Law School because of DADT. Toomey wrote:

I share the view that the “don’t ask, don’t tell,” policy regarding gay servicemen and women has outlived its usefulness and, subject to the military’s conclusion of the feasibility of removing it, I support its repeal. However, one’s disagreement with a federal law does not give one license to circumvent it.

While Toomey won’t be able to cast a vote on the repeal attempt during the lame-duck session of Congress, his willingness to do so after January may change the mathematics of this debate. Moreover, Toomey — whose reputation as a pro-life stalwart, Tea Party favorite, and libertarian hardliner on fiscal matters renders him largely impervious to attacks from the right — could help give cover to other wavering Republicans. Previously, the only Republicans to announce support for the end of DADT were the liberal Susan Collins and Olympia Snowe of Maine.

Toomey’s stand on gays in the military might put him in conflict with conservative culture-war advocates, who will lament his willingness to put this issue to rest. Indeed, this puts him at odds with Rick Santorum, the former Pennsylvania senator who has recently been beating the bushes in New Hampshire promoting a possible 2012 presidential candidacy (though not too many people are taking Santorum’s ego-trip of a campaign seriously). But the irony here is that six years ago, Santorum, the man who now proclaims himself as the true guardian of conservative values, did his best to torpedo Toomey’s primary challenge of liberal Arlen Specter. Though Santorum and President Bush urged Toomey to step aside, he wouldn’t compromise and stayed in the race, ultimately narrowly losing the primary to Specter. Six years later, Toomey, who stuck to his guns on his conservative principles, is now about to take the place of the turncoat Specter, who was beaten out for the Democratic nomination earlier this year.

Six years is a lifetime in politics, but Pennsylvania Democrats are already looking ahead to 2016, since they believe the election of a conservative like Toomey was a fluke that cannot be repeated. They may be right, but what we will see until then is a senator who denounces big government and actually means it. That may not earn Toomey many friends in a state that has long counted upon its representatives to fight for local special interests, something that Toomey is unlikely to do. But as we are seeing with the issue of gays in the military, Toomey’s principled independence is a factor that political observers ought not to take for granted.

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Flotsam and Jetsam

Candid. Israeli Vice Prime Minister Moshe Yaalon’s interview should be read in full. A sample: “Yaalon said bluntly that he believes Iran’s regime is ‘not sure that there is a will’ on the part of the United States right now to exercise the military option against Iran’s nuclear facilities. … When asked if he felt the Obama administration was open to military action against Iran, Yaalon said that, according to the traditions of Israel’s forefathers, righteous people hope that the job might be done by others. On the other hand, he said, there is another old saying that goes like this: ‘If I’m not for myself, then who is for me?’ He added, ‘So we should be ready.’”

Intriguing. And the timing couldn’t be worse for him: “First it was President Barack Obama, then White House Chief of Staff, Rahm Emanuel, now U.S. Senate Candidate Alexi Giannoulias is joining the Rod Blagojevich corruption trial subpoena list.” His opponent pours salt in the wound: “[Rep. Mark] Kirk’s campaign said the development is part of a ‘troubling pattern’ with Giannoulias that includes regulators shutting down his family’s Chicago bank in April after it failed to raise new capital. ‘Now we’ve learned Giannoulias’ name has come up on federal wire taps talking about the Illinois Senate seat and he has been subpoenaed in former and disgraced Governor Rod Blagojevich’s public corruption trial. This revelation raises additional questions about Alexi Giannoulias that he needs to answer,’ Kirk spokeswoman Kirsten Kukowski said in a statement.”

Effective. Timothy Dalrymple dismantles the mischaracterizations by liberal Christians of the Tea Party movement, and includes this on taxation: “To resent a tax hike (or the prospect of one) is not to neglect the needy, and to wish to retain control over the funds one has secured in order to care for one’s family is not necessarily selfish. Conservatives generally are more generous with their giving than liberals, yet they resent it when a distant bureaucracy extracts their money in order to distribute public funds to the special interest groups on whose votes and donations they rely. Conservatives would prefer that care for the needy remain as local and personal as possible.”

Curious. Who are the 32% who view Eric Holder and Janet Napolitano favorably? “Forty-two percent (42%) regard the attorney general unfavorably, with 26% who have a Very Unfavorable opinion. One-in-four voters (26%) still don’t know enough about Holder to venture any kind of opinion of him. This marks a very slight worsening of the numbers for Holder from last August just after his announcement that the Justice Department was investigating how the Bush administration treated imprisoned terrorists.”

Explosive. A Justice Department trial team lawyer goes public: “Based on my firsthand experiences, I believe the dismissal of the Black Panther case was motivated by a lawless hostility toward equal enforcement of the law. Others still within the department share my assessment. The department abetted wrongdoers and abandoned law-abiding citizens victimized by the New Black Panthers. The dismissal raises serious questions about the department’s enforcement neutrality in upcoming midterm elections and the subsequent 2012 presidential election.”

Grouchy. The left is dismayed again: “On the eve of Elena Kagan’s Supreme Court confirmation hearings her record on race in the Clinton White House and at Harvard Law School is producing discomfort among some leading civil rights organizations, leaving them struggling to decide whether they want her to join the Supreme Court.”

Frightful. From an MIT professor: ”The president should nominate Paul Krugman to replace Peter Orszag as director of the Office of Management and Budget (OMB).” Because the deficit plainly isn’t big enough, and we’ve been too miserly in our spending.

Unfair? Maybe. Ezra Klein, who recommended Dave Weigel as a “conservative voice,” seems to have gotten away scot-free, while Weigel had to resign and his bosses had to scrape egg off their faces.

Candid. Israeli Vice Prime Minister Moshe Yaalon’s interview should be read in full. A sample: “Yaalon said bluntly that he believes Iran’s regime is ‘not sure that there is a will’ on the part of the United States right now to exercise the military option against Iran’s nuclear facilities. … When asked if he felt the Obama administration was open to military action against Iran, Yaalon said that, according to the traditions of Israel’s forefathers, righteous people hope that the job might be done by others. On the other hand, he said, there is another old saying that goes like this: ‘If I’m not for myself, then who is for me?’ He added, ‘So we should be ready.’”

Intriguing. And the timing couldn’t be worse for him: “First it was President Barack Obama, then White House Chief of Staff, Rahm Emanuel, now U.S. Senate Candidate Alexi Giannoulias is joining the Rod Blagojevich corruption trial subpoena list.” His opponent pours salt in the wound: “[Rep. Mark] Kirk’s campaign said the development is part of a ‘troubling pattern’ with Giannoulias that includes regulators shutting down his family’s Chicago bank in April after it failed to raise new capital. ‘Now we’ve learned Giannoulias’ name has come up on federal wire taps talking about the Illinois Senate seat and he has been subpoenaed in former and disgraced Governor Rod Blagojevich’s public corruption trial. This revelation raises additional questions about Alexi Giannoulias that he needs to answer,’ Kirk spokeswoman Kirsten Kukowski said in a statement.”

Effective. Timothy Dalrymple dismantles the mischaracterizations by liberal Christians of the Tea Party movement, and includes this on taxation: “To resent a tax hike (or the prospect of one) is not to neglect the needy, and to wish to retain control over the funds one has secured in order to care for one’s family is not necessarily selfish. Conservatives generally are more generous with their giving than liberals, yet they resent it when a distant bureaucracy extracts their money in order to distribute public funds to the special interest groups on whose votes and donations they rely. Conservatives would prefer that care for the needy remain as local and personal as possible.”

Curious. Who are the 32% who view Eric Holder and Janet Napolitano favorably? “Forty-two percent (42%) regard the attorney general unfavorably, with 26% who have a Very Unfavorable opinion. One-in-four voters (26%) still don’t know enough about Holder to venture any kind of opinion of him. This marks a very slight worsening of the numbers for Holder from last August just after his announcement that the Justice Department was investigating how the Bush administration treated imprisoned terrorists.”

Explosive. A Justice Department trial team lawyer goes public: “Based on my firsthand experiences, I believe the dismissal of the Black Panther case was motivated by a lawless hostility toward equal enforcement of the law. Others still within the department share my assessment. The department abetted wrongdoers and abandoned law-abiding citizens victimized by the New Black Panthers. The dismissal raises serious questions about the department’s enforcement neutrality in upcoming midterm elections and the subsequent 2012 presidential election.”

Grouchy. The left is dismayed again: “On the eve of Elena Kagan’s Supreme Court confirmation hearings her record on race in the Clinton White House and at Harvard Law School is producing discomfort among some leading civil rights organizations, leaving them struggling to decide whether they want her to join the Supreme Court.”

Frightful. From an MIT professor: ”The president should nominate Paul Krugman to replace Peter Orszag as director of the Office of Management and Budget (OMB).” Because the deficit plainly isn’t big enough, and we’ve been too miserly in our spending.

Unfair? Maybe. Ezra Klein, who recommended Dave Weigel as a “conservative voice,” seems to have gotten away scot-free, while Weigel had to resign and his bosses had to scrape egg off their faces.

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Harvard’s Double Standard on Gay Rights

On FOX News Sunday, former Speaker of the House Newt Gingrich, in talking about the nomination of Elena Kagan to the Supreme Court, makes this helpful comparison:

On the one hand, Harvard accepts money from Saudis. Saudi Arabia, by the way, executes homosexuals, Saudi Arabia represses women, Saudi Arabia does not allow Christians or Jews to practice their religion, but Saudi money is fine. The American military didn’t have a policy. The Congress of the United States and the Clinton administration she served in had a policy. And for her to single out the military was an extraordinarily myopic position. And if you read what they said at the time, it was consistently focused on the military, and I just think that at a time when we have two wars, that’s a very inappropriate behavior.

This is a very good point for GOP senators to press Ms. Kagan on during her confirmation hearings. Apparently, accepting the money from a repressive government where sodomy is punishable by death is hunky-dory, but the military, in carrying through on the Clinton administration’s policy, deserves to be singled out for condemnation. (Don’t Ask, Don’t Tell is a “moral injustice of the first order,” according to Kagan.) How exactly does one explain the different Indignation Meters at Harvard Law School?

For the record, it appears that $20 million (and perhaps considerably less) is enough to silence Harvard on the matter of human rights for gays. Here’s a report from 2005:

A Saudi prince has donated $20 million each to Harvard University and Georgetown University to advance Islamic studies and further understanding of the Muslim world. Prince Alwaleed bin Talal Alsaud — whom Forbes magazine ranks as the fifth wealthiest person in the world, with assets worth $23.7 billion — is the nephew of Saudi Arabia’s King Abdullah. “Bridging the understanding between East and West is important for peace and tolerance,” Alwaleed said in a statement released by Harvard. At Harvard, the money will fund four new senior staff professorships as well as an endowed chair in the name of the 48-year-old billionaire. Harvard will also use the funds to begin digitizing historically significant Islamic texts and materials, and make them available for research on the Internet. “We are very grateful to Prince Alwaleed for his generous gift to Harvard,” President Lawrence H. Summers said. The gift is considered one of the 25th largest in university history.

Of course, Harvard, ever open-minded, wanted to “bridge the understanding between East and West” in order to advance the cause of “tolerance.” So Harvard, for the right price, can summon tolerance even when it comes to governments’ executing people for sodomy. Yet it showed considerably less tolerance for the United States military on the matter of not allowing openly gay people to serve in the military.

How principled of Harvard.

All this is indicative of a twisted set of priorities by Harvard and worth exploring in some detail.

On FOX News Sunday, former Speaker of the House Newt Gingrich, in talking about the nomination of Elena Kagan to the Supreme Court, makes this helpful comparison:

On the one hand, Harvard accepts money from Saudis. Saudi Arabia, by the way, executes homosexuals, Saudi Arabia represses women, Saudi Arabia does not allow Christians or Jews to practice their religion, but Saudi money is fine. The American military didn’t have a policy. The Congress of the United States and the Clinton administration she served in had a policy. And for her to single out the military was an extraordinarily myopic position. And if you read what they said at the time, it was consistently focused on the military, and I just think that at a time when we have two wars, that’s a very inappropriate behavior.

This is a very good point for GOP senators to press Ms. Kagan on during her confirmation hearings. Apparently, accepting the money from a repressive government where sodomy is punishable by death is hunky-dory, but the military, in carrying through on the Clinton administration’s policy, deserves to be singled out for condemnation. (Don’t Ask, Don’t Tell is a “moral injustice of the first order,” according to Kagan.) How exactly does one explain the different Indignation Meters at Harvard Law School?

For the record, it appears that $20 million (and perhaps considerably less) is enough to silence Harvard on the matter of human rights for gays. Here’s a report from 2005:

A Saudi prince has donated $20 million each to Harvard University and Georgetown University to advance Islamic studies and further understanding of the Muslim world. Prince Alwaleed bin Talal Alsaud — whom Forbes magazine ranks as the fifth wealthiest person in the world, with assets worth $23.7 billion — is the nephew of Saudi Arabia’s King Abdullah. “Bridging the understanding between East and West is important for peace and tolerance,” Alwaleed said in a statement released by Harvard. At Harvard, the money will fund four new senior staff professorships as well as an endowed chair in the name of the 48-year-old billionaire. Harvard will also use the funds to begin digitizing historically significant Islamic texts and materials, and make them available for research on the Internet. “We are very grateful to Prince Alwaleed for his generous gift to Harvard,” President Lawrence H. Summers said. The gift is considered one of the 25th largest in university history.

Of course, Harvard, ever open-minded, wanted to “bridge the understanding between East and West” in order to advance the cause of “tolerance.” So Harvard, for the right price, can summon tolerance even when it comes to governments’ executing people for sodomy. Yet it showed considerably less tolerance for the United States military on the matter of not allowing openly gay people to serve in the military.

How principled of Harvard.

All this is indicative of a twisted set of priorities by Harvard and worth exploring in some detail.

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The Underwelming Kagan

Joshua Green examines why liberals are nervous about Elena Kagan. He explains:

The same thing that makes her confirmation so likely — the lack of a paper trail for opponents to parse and attack — has also become a prime source of concern for her own side. There’s little hard evidence to reassure liberals that she’ll adjudicate in the way they would prefer. Kagan’s lack of a judicial record and scant legal writing during a career spent mostly in politics and the deanship of Harvard Law School leave open the possibility she’ll turn out to be more conservative than advertised. … The liberal complaint against Kagan is threefold: that she wasn’t sufficiently aggressive in hiring women and minorities to the Harvard faculty; that she took worrisome positions on executive power, the war on terrorism, and corporate campaign spending; and that she isn’t the counterpart to Antonin Scalia that the left has long desired.

Green makes a comparison to David Souter, the quintessential stealth candidate who turned out to be not at all what the president who nominated him expected.

Most interesting is that the left — despite the silly Obama spin — recognizes that “she isn’t the counterpart to Antonin Scalia that the left has long desired.” Perhaps they are worried her intellect is not all that dazzling? Well, we can say she’s not demonstrated the sort of brilliance and scholarship or fine writing that the left understands is a prerequisite to do battle on the Court.

She has had a total of six Supreme Court arguments in her short tenure as solicitor general. It took a full six months before she gave her first argument in Citizens United, bypassing key cases, including Ricci (the New Haven firefighter case) and a high-profile challenge to the Voting Rights Act. Sources within the Justice Department report that Kagan was preparing to argue the Voting Rights Act case but ultimately gave way to her deputy.

Does this sound like a proficient, accomplished “lawyer’s lawyer”? Not even Kagan is high on her own advocacy abilities. Her outing in Citizens United was rocky at best, getting the worst of questioning from both Justices Scalia and Kennedy (whom she is tasked by the left with persuading once she is confirmed). At an awards ceremony at Georgetown Law School honoring Kennedy earlier this month, Kagan spoke, and her comments are revealing — and should be bracing to the left:

At one point, Kagan raised audience eyebrows when she said she would remember an exchange she had with Kennedy “for the rest of my career as an advocate.” …

That memorable exchange with Kennedy that Kagan was recalling, by the way, offered a glimpse into how Kagan handled her first oral argument before the high court — or any court — last September in Citizens United v. Federal Election Commission. That’s the landmark campaign finance case that Kagan lost 5-4, with Kennedy writing the majority.

In spite of her earlier praise for Kennedy, Kagan told the Georgetown audience that the justice had “a bit of a bad habit,” namely that he asks advocates about cases that are not mentioned anywhere in the briefs for the case. Kennedy did just that in Citizens United when he asked Kagan whether something she had just said was “inconsistent with the whole line of cases that began with Thornhill v. Alabama and Coates v. Cincinnati.” … Perhaps many advocates know those cases, Kagan said, but “I at any rate did not.” She added, “There was a look of panic on my face.”

Without knowing for sure, Kagan said she believes that Kennedy “saw in the flash of an instant that … I really had no clue” about the cases he was asking her about. Instead of waiting for her painful reply, Kennedy quickly went on to explain the Thornhill line of cases — which relate to facial challenges to statutes under the First Amendment — with enough detail that Kagan was able to recover and answer the question.

The left has good reason to worry. Kagan will need to elicit respect, not pity, from Kennedy once she is confirmed if she is to fulfill the left’s fondest hopes. Maybe she will grow into the job, but if it took six months to get prepared for her first argument before the Court, how long will it take before she is an influential force on the Court? Will she ever be?

Joshua Green examines why liberals are nervous about Elena Kagan. He explains:

The same thing that makes her confirmation so likely — the lack of a paper trail for opponents to parse and attack — has also become a prime source of concern for her own side. There’s little hard evidence to reassure liberals that she’ll adjudicate in the way they would prefer. Kagan’s lack of a judicial record and scant legal writing during a career spent mostly in politics and the deanship of Harvard Law School leave open the possibility she’ll turn out to be more conservative than advertised. … The liberal complaint against Kagan is threefold: that she wasn’t sufficiently aggressive in hiring women and minorities to the Harvard faculty; that she took worrisome positions on executive power, the war on terrorism, and corporate campaign spending; and that she isn’t the counterpart to Antonin Scalia that the left has long desired.

Green makes a comparison to David Souter, the quintessential stealth candidate who turned out to be not at all what the president who nominated him expected.

Most interesting is that the left — despite the silly Obama spin — recognizes that “she isn’t the counterpart to Antonin Scalia that the left has long desired.” Perhaps they are worried her intellect is not all that dazzling? Well, we can say she’s not demonstrated the sort of brilliance and scholarship or fine writing that the left understands is a prerequisite to do battle on the Court.

She has had a total of six Supreme Court arguments in her short tenure as solicitor general. It took a full six months before she gave her first argument in Citizens United, bypassing key cases, including Ricci (the New Haven firefighter case) and a high-profile challenge to the Voting Rights Act. Sources within the Justice Department report that Kagan was preparing to argue the Voting Rights Act case but ultimately gave way to her deputy.

Does this sound like a proficient, accomplished “lawyer’s lawyer”? Not even Kagan is high on her own advocacy abilities. Her outing in Citizens United was rocky at best, getting the worst of questioning from both Justices Scalia and Kennedy (whom she is tasked by the left with persuading once she is confirmed). At an awards ceremony at Georgetown Law School honoring Kennedy earlier this month, Kagan spoke, and her comments are revealing — and should be bracing to the left:

At one point, Kagan raised audience eyebrows when she said she would remember an exchange she had with Kennedy “for the rest of my career as an advocate.” …

That memorable exchange with Kennedy that Kagan was recalling, by the way, offered a glimpse into how Kagan handled her first oral argument before the high court — or any court — last September in Citizens United v. Federal Election Commission. That’s the landmark campaign finance case that Kagan lost 5-4, with Kennedy writing the majority.

In spite of her earlier praise for Kennedy, Kagan told the Georgetown audience that the justice had “a bit of a bad habit,” namely that he asks advocates about cases that are not mentioned anywhere in the briefs for the case. Kennedy did just that in Citizens United when he asked Kagan whether something she had just said was “inconsistent with the whole line of cases that began with Thornhill v. Alabama and Coates v. Cincinnati.” … Perhaps many advocates know those cases, Kagan said, but “I at any rate did not.” She added, “There was a look of panic on my face.”

Without knowing for sure, Kagan said she believes that Kennedy “saw in the flash of an instant that … I really had no clue” about the cases he was asking her about. Instead of waiting for her painful reply, Kennedy quickly went on to explain the Thornhill line of cases — which relate to facial challenges to statutes under the First Amendment — with enough detail that Kagan was able to recover and answer the question.

The left has good reason to worry. Kagan will need to elicit respect, not pity, from Kennedy once she is confirmed if she is to fulfill the left’s fondest hopes. Maybe she will grow into the job, but if it took six months to get prepared for her first argument before the Court, how long will it take before she is an influential force on the Court? Will she ever be?

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The Problem with Law Schools

Ed Whelan dismantles bit by bit the argument by former Harvard Law School dean Robert Clark in support of current Harvard Law School dean Elena Kagan’s barring of military recruiters and signing on to an amicus brief contesting the Solomon Amendment. This raises a larger issue — yes, even larger than a single Supreme Court nomination — what’s the matter with law schools? After all, lots and lots of their deans and professors hadn’t a clue what the law was in the case challenging the Solomon Amendment. George Mason University Law School was the proud exception and at the time reminded us:

The amicus brief filed by the dean and two professors at George Mason’s law school was the only one submitted by a law school that took the side of the armed services. Many amicus briefs were filed on the losing side (including briefs in behalf of Yale University, Harvard University, Columbia University, New York University, the University of Chicago, Cornell University and the University of Pennsylvania), arguing that the Solomon Amendment’s requirement of equal access for military recruiters was unconstitutional under the First Amendment. In addition, professors at Columbia and Harvard law schools submitted briefs arguing that as a matter of statutory construction the law schools had in fact complied with the Solomon Amendment. The constitutional and statutory arguments were all rejected by the Court.

There is a reason why the Chief Justice, among other justices over the years, has said that he doesn’t pay too much attention to law-review articles. Why? Law professors don’t really have a great grasp of what the law is or a decent track record in predicting where it will evolve. They operate in a largely isolated academic setting in which, in their minds, there are nine Justice Stevenses on the bench. And in this case, they didn’t even get Stevens’s position right.

As Ronald Reagan said of liberals, it’s not that they are ignorant. It’s that they know so much that isn’t true. So I can see the argument for looking outside the appellate bench for justices. But I think law professors are the last place you’d want to look for unbiased, accomplished legal analysts. Let’s hope Kagan picked up some actual law, not law-school law, in her last year at the solicitor general’s office.

Ed Whelan dismantles bit by bit the argument by former Harvard Law School dean Robert Clark in support of current Harvard Law School dean Elena Kagan’s barring of military recruiters and signing on to an amicus brief contesting the Solomon Amendment. This raises a larger issue — yes, even larger than a single Supreme Court nomination — what’s the matter with law schools? After all, lots and lots of their deans and professors hadn’t a clue what the law was in the case challenging the Solomon Amendment. George Mason University Law School was the proud exception and at the time reminded us:

The amicus brief filed by the dean and two professors at George Mason’s law school was the only one submitted by a law school that took the side of the armed services. Many amicus briefs were filed on the losing side (including briefs in behalf of Yale University, Harvard University, Columbia University, New York University, the University of Chicago, Cornell University and the University of Pennsylvania), arguing that the Solomon Amendment’s requirement of equal access for military recruiters was unconstitutional under the First Amendment. In addition, professors at Columbia and Harvard law schools submitted briefs arguing that as a matter of statutory construction the law schools had in fact complied with the Solomon Amendment. The constitutional and statutory arguments were all rejected by the Court.

There is a reason why the Chief Justice, among other justices over the years, has said that he doesn’t pay too much attention to law-review articles. Why? Law professors don’t really have a great grasp of what the law is or a decent track record in predicting where it will evolve. They operate in a largely isolated academic setting in which, in their minds, there are nine Justice Stevenses on the bench. And in this case, they didn’t even get Stevens’s position right.

As Ronald Reagan said of liberals, it’s not that they are ignorant. It’s that they know so much that isn’t true. So I can see the argument for looking outside the appellate bench for justices. But I think law professors are the last place you’d want to look for unbiased, accomplished legal analysts. Let’s hope Kagan picked up some actual law, not law-school law, in her last year at the solicitor general’s office.

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Biden Strikes Again

Joe Biden says many dumb things, but this, on Elena Kagan’s opposition to military recruiters on campus, is up there with the worst of them:

She was right. … All during that period, she has reached out to veterans in the law school, she has been at promotions ceremonies, she’s recognized veterans coming to the law school. So this is not a single bit of anti-military bias. She does think, and I agree with her, that the “Don’t Ask, Don’t Tell” policy is a very bad policy.

This is inane on multiple levels. First, she wasn’t “right” — there was a law that allowed recruiters on campus, and the Supreme Court decided that she was wrong in an 8-0 decision. Moreover, if it were such a bad policy, why didn’t he or then-Senator Barack Obama move to repeal “Don’t Ask, Don’t Tell”? And, come to think of it, if it’s so bad, why doesn’t Obama issue an executive order to repeal it? Finally, it’s hard to argue that there wasn’t at least a bit of anti-military in her pronouncement:

“All Members of the Harvard Law School Community”: On Oct. 6, 2003, Kagan explained that she abhorred “the military’s discriminatory recruitment policy. … The military’s policy deprives many men and women of courage and character from having the opportunity to serve their country in the greatest way possible. This is a profound wrong — a moral injustice of the first order.” On Sep. 28, 2004: “… the military’s recruitment policy is both unjust and unwise. The military’s policy deprives…” etc. And on March 7, 2006: “I hope that many members of the Harvard Law School community will accept the Court’s invitation to express their views clearly and forcefully regarding the military’s discriminatory employment policy. As I have said before, I believe that policy is profoundly wrong — both unwise and unjust…,” etc.

Unfortunately, unlike vice presidents, judges and judicial nominees are judged on the precision of their words. Kagan’s got some explaining to do, and Biden isn’t helping her any.

Joe Biden says many dumb things, but this, on Elena Kagan’s opposition to military recruiters on campus, is up there with the worst of them:

She was right. … All during that period, she has reached out to veterans in the law school, she has been at promotions ceremonies, she’s recognized veterans coming to the law school. So this is not a single bit of anti-military bias. She does think, and I agree with her, that the “Don’t Ask, Don’t Tell” policy is a very bad policy.

This is inane on multiple levels. First, she wasn’t “right” — there was a law that allowed recruiters on campus, and the Supreme Court decided that she was wrong in an 8-0 decision. Moreover, if it were such a bad policy, why didn’t he or then-Senator Barack Obama move to repeal “Don’t Ask, Don’t Tell”? And, come to think of it, if it’s so bad, why doesn’t Obama issue an executive order to repeal it? Finally, it’s hard to argue that there wasn’t at least a bit of anti-military in her pronouncement:

“All Members of the Harvard Law School Community”: On Oct. 6, 2003, Kagan explained that she abhorred “the military’s discriminatory recruitment policy. … The military’s policy deprives many men and women of courage and character from having the opportunity to serve their country in the greatest way possible. This is a profound wrong — a moral injustice of the first order.” On Sep. 28, 2004: “… the military’s recruitment policy is both unjust and unwise. The military’s policy deprives…” etc. And on March 7, 2006: “I hope that many members of the Harvard Law School community will accept the Court’s invitation to express their views clearly and forcefully regarding the military’s discriminatory employment policy. As I have said before, I believe that policy is profoundly wrong — both unwise and unjust…,” etc.

Unfortunately, unlike vice presidents, judges and judicial nominees are judged on the precision of their words. Kagan’s got some explaining to do, and Biden isn’t helping her any.

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The Gray Lady Is Nervous

The New York Times editors, even before the revelation of her abortion advice during the Clinton administration, were nervous about the stealth nominee. They fret:

President Obama may know that his new nominee to the Supreme Court, Elena Kagan, shares his thinking on the multitude of issues that face the court and the nation, but the public knows nothing of the kind. Whether by ambitious design or by habit of mind, Ms. Kagan has spent decades carefully husbanding her thoughts and shielding her philosophy from view. Her lack of a clear record on certain issues makes it hard to know whether Mr. Obama has nominated a full-throated counterweight to the court’s increasingly aggressive conservative wing. … 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?

Why, hiding her views to position herself for the Court, of course. It is ironic that the president, who got to office concealing his own views, now is unsettling his base for selecting someone who has concealed hers. The lefty Times editors find this most troubling:

In a 2001 Harvard Law Review article, Ms. Kagan defended a robust assertion of presidential power unless specifically limited by Congress — albeit in the service of “progressive goals” on the domestic front. She told the Senate last year that she agreed the government has the right to indefinitely detain enemy combatants captured around the world. As Mr. Obama’s solicitor general, she has supported his administration’s positions, little changed since the Bush administration, on the use of military force against Al Qaeda, the habeas corpus rights of military detainees and the state secrets privilege.

Conservatives may roll their eyes, convinced that no Harvard Law School dean is going to cross the left. But the issue here is the rather paranoid and perpetually aggrieved left. Obama in their eyes has been a disappointment. Indeed, it was their apathy that convinced the Democrats that they had to roll the dice on ObamaCare in order to turn out the liberal base in November. Now he gives them a nominee — for the seat of the sainted leftist Justice Stevens — who’s a squish? Hmm. Obama may have been too clever by half on this. The right will probably still not embrace her, and the left will, once again, be peeved. Sort of the worst of all worlds, no?

The New York Times editors, even before the revelation of her abortion advice during the Clinton administration, were nervous about the stealth nominee. They fret:

President Obama may know that his new nominee to the Supreme Court, Elena Kagan, shares his thinking on the multitude of issues that face the court and the nation, but the public knows nothing of the kind. Whether by ambitious design or by habit of mind, Ms. Kagan has spent decades carefully husbanding her thoughts and shielding her philosophy from view. Her lack of a clear record on certain issues makes it hard to know whether Mr. Obama has nominated a full-throated counterweight to the court’s increasingly aggressive conservative wing. … 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?

Why, hiding her views to position herself for the Court, of course. It is ironic that the president, who got to office concealing his own views, now is unsettling his base for selecting someone who has concealed hers. The lefty Times editors find this most troubling:

In a 2001 Harvard Law Review article, Ms. Kagan defended a robust assertion of presidential power unless specifically limited by Congress — albeit in the service of “progressive goals” on the domestic front. She told the Senate last year that she agreed the government has the right to indefinitely detain enemy combatants captured around the world. As Mr. Obama’s solicitor general, she has supported his administration’s positions, little changed since the Bush administration, on the use of military force against Al Qaeda, the habeas corpus rights of military detainees and the state secrets privilege.

Conservatives may roll their eyes, convinced that no Harvard Law School dean is going to cross the left. But the issue here is the rather paranoid and perpetually aggrieved left. Obama in their eyes has been a disappointment. Indeed, it was their apathy that convinced the Democrats that they had to roll the dice on ObamaCare in order to turn out the liberal base in November. Now he gives them a nominee — for the seat of the sainted leftist Justice Stevens — who’s a squish? Hmm. Obama may have been too clever by half on this. The right will probably still not embrace her, and the left will, once again, be peeved. Sort of the worst of all worlds, no?

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Obama Highlights What Kagan Is Not

One had the impression listening to Obama’s introduction of Elena Kagan yesterday that the White House spinners had made a list of her shortcomings and then concocted a narrative featuring an un-Kagan who had none of those shortcomings and, indeed, an overabundance of the very qualities honest observers would concede she lacks.

As Ben Smith writes:

President Barack Obama introduced Elena Kagan on Monday in the terms that have come to define his approach to the Supreme Court: She understands the law “as it affects the lives of ordinary people,” he said, adding that her presence will make the court “more reflective of us as a people than ever before.”

Obama promised judges with at least a passing knowledge of the “real world,” but Kagan’s experience draws from a world whose signposts are distant from most Americans: Manhattan’s Upper West side, Princeton University, Harvard Law School and the upper reaches of the Democratic legal establishment.

Obama also pronounced, “Elena is widely regarded as one of the nation’s foremost legal minds.” This is preposterous. She’s written little, and what she has written is banal and unexceptional. Her speeches as dean are not analytical or historical discourse but pep talks and generic spiels on ethics and the wonders of Harvard Law School’s reputation.

So she brings neither an abundance of non-elite experience nor an intellectual record of achievement. That doesn’t mean she isn’t qualified or won’t make a capable justice, but it does serve to emphasize — once again — the president’s penchant for exaggeration if not fabrication.

His remarks also suggest what he really was looking for in a justice, and regrettably reveal that he (but we hope not his nominee) is confused about what the Court should be doing. He praised her work as solicitor general in “defend[ing] the rights of shareholders and ordinary citizens against unscrupulous corporations. Last year, in the Citizens United case, she defended bipartisan campaign finance reform against special interests seeking to spend unlimited money to influence our elections.” Is that what she argued: corporation = bad and micromanaging speech = good? Is that what the Court does — find the Democratic cause and construct a legal argument to support it? Even the Washington Post‘s editors spotted the problem with the president’s demagoguery, reminding the former law professor that justices “should decide each case on its merits.”

So she’s not very real world, and she isn’t a renowned scholar, but she sure understands the president’s liberal agenda. Obama is nothing if not totally predictable in his nominations — construct a narrative, appoint a dependable liberal. Kagan, I suspect, won’t disappoint him.

One had the impression listening to Obama’s introduction of Elena Kagan yesterday that the White House spinners had made a list of her shortcomings and then concocted a narrative featuring an un-Kagan who had none of those shortcomings and, indeed, an overabundance of the very qualities honest observers would concede she lacks.

As Ben Smith writes:

President Barack Obama introduced Elena Kagan on Monday in the terms that have come to define his approach to the Supreme Court: She understands the law “as it affects the lives of ordinary people,” he said, adding that her presence will make the court “more reflective of us as a people than ever before.”

Obama promised judges with at least a passing knowledge of the “real world,” but Kagan’s experience draws from a world whose signposts are distant from most Americans: Manhattan’s Upper West side, Princeton University, Harvard Law School and the upper reaches of the Democratic legal establishment.

Obama also pronounced, “Elena is widely regarded as one of the nation’s foremost legal minds.” This is preposterous. She’s written little, and what she has written is banal and unexceptional. Her speeches as dean are not analytical or historical discourse but pep talks and generic spiels on ethics and the wonders of Harvard Law School’s reputation.

So she brings neither an abundance of non-elite experience nor an intellectual record of achievement. That doesn’t mean she isn’t qualified or won’t make a capable justice, but it does serve to emphasize — once again — the president’s penchant for exaggeration if not fabrication.

His remarks also suggest what he really was looking for in a justice, and regrettably reveal that he (but we hope not his nominee) is confused about what the Court should be doing. He praised her work as solicitor general in “defend[ing] the rights of shareholders and ordinary citizens against unscrupulous corporations. Last year, in the Citizens United case, she defended bipartisan campaign finance reform against special interests seeking to spend unlimited money to influence our elections.” Is that what she argued: corporation = bad and micromanaging speech = good? Is that what the Court does — find the Democratic cause and construct a legal argument to support it? Even the Washington Post‘s editors spotted the problem with the president’s demagoguery, reminding the former law professor that justices “should decide each case on its merits.”

So she’s not very real world, and she isn’t a renowned scholar, but she sure understands the president’s liberal agenda. Obama is nothing if not totally predictable in his nominations — construct a narrative, appoint a dependable liberal. Kagan, I suspect, won’t disappoint him.

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RE: RE: Kagan Nominated

During her career, Elena Kagan, like Justice Roberts before her, seems to have kept her eye always on the possibility of getting to the Supreme Court. The one item in her résumé not consistent with that was her opposition to allowing military recruiters access to interview students at the Harvard Law School. She even signed an amicus brief backing a Third Circuit opinion that was overturned 8-0 by the Supreme Court.

As Bill Kristol points out, tracking Ed Whelan’s fifth point, Elena Kagan appears anti-military here, not just pro-gay. She has consistently blamed the military for implementing what was, in fact, an act of Congress (and a Democratic one at that) that had been signed into law by a Democratic president. Does she think the military has a moral obligation to mutiny in this case?

Why would she do this? I have no inside track on her thinking, but I wonder if she realized that failing to take this position could have cost her her job at Harvard. As Lawrence Summers found out, and Kagan’s successor as dean of the Harvard Law School, Martha Minow, is currently demonstrating, the Harvard faculty does not take kindly even to questioning liberal orthodoxy, let alone espousing apostasy. Perhaps she figured that getting canned as dean would look worse on her résumé than appearing anti-military, which was probably her inclination anyway.

During her career, Elena Kagan, like Justice Roberts before her, seems to have kept her eye always on the possibility of getting to the Supreme Court. The one item in her résumé not consistent with that was her opposition to allowing military recruiters access to interview students at the Harvard Law School. She even signed an amicus brief backing a Third Circuit opinion that was overturned 8-0 by the Supreme Court.

As Bill Kristol points out, tracking Ed Whelan’s fifth point, Elena Kagan appears anti-military here, not just pro-gay. She has consistently blamed the military for implementing what was, in fact, an act of Congress (and a Democratic one at that) that had been signed into law by a Democratic president. Does she think the military has a moral obligation to mutiny in this case?

Why would she do this? I have no inside track on her thinking, but I wonder if she realized that failing to take this position could have cost her her job at Harvard. As Lawrence Summers found out, and Kagan’s successor as dean of the Harvard Law School, Martha Minow, is currently demonstrating, the Harvard faculty does not take kindly even to questioning liberal orthodoxy, let alone espousing apostasy. Perhaps she figured that getting canned as dean would look worse on her résumé than appearing anti-military, which was probably her inclination anyway.

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Kagan’s Vulnerabilty

Although records from her years in the Clinton administration may raise other concerns, at this stage, the most significant vulnerability for Supreme Court nominee Elena Kagan is her position in opposing giving military recruiters access to Harvard Law School because of the armed services’ Don’t Ask, Don’t Tell policy. This is problematic in two respects.

First, as Bill Kristol observes, the level of invective directed at the military is noteworthy:

Notice, time and again [in her letters]: “the military’s discriminatory recruitment policy,” “the military’s policy,” “the military’s recruitment policy,” “the military’s discriminatory employment policy.”

But it is not the military’s policy. It is the policy of the U.S. Government, based on legislation passed in 1993 by (a Democratic) Congress, signed into law and implemented by the Clinton administration, legislation and implementation that are currently continued by a Democratic administration and a Democratic Congress. It is intellectually wrong and morally cowardly to call this the “military’s policy.” Wrong for obvious reasons. Cowardly because it allowed Kagan to go ahead and serve in the Clinton administration that enforced this policy she so detests, and to welcome to Harvard as Dean former members of that administration, as well as Senators and Congressmen who actually voted for the law–which is more than the military recruiters whom Kagan sought to ban did.

In addition to her attitude toward the military, one has to question her ability to put aside policy preferences and biases when engaging in constitutional analysis. She joined an amicus brief seeking to set aside as unconstitutional the Solomon Amendment, which required schools to allow military recruiters on campus. Stuart Taylor has suggested that “the Administration will have no trouble describing General Kagan’s position as reflecting that of Harvard as an institution — a position that was broadly shared among the nation’s elite Universities.” Well, that Ivy League institutions are uniformly hostile to the military and that Kagan made a constitutional argument based, it seems, on political conviction will hardly help matters. Recall, Kagan’s position lost 8-0. That’s as far out of the mainstream as you can get.

Is this grounds for opposing Kagan? Maybe not, but it also depends on what she says, what she’s written, and why she thought the Solomon Amendment was unconstitutional. This is what confirmation hearings are designed to explore.

Although records from her years in the Clinton administration may raise other concerns, at this stage, the most significant vulnerability for Supreme Court nominee Elena Kagan is her position in opposing giving military recruiters access to Harvard Law School because of the armed services’ Don’t Ask, Don’t Tell policy. This is problematic in two respects.

First, as Bill Kristol observes, the level of invective directed at the military is noteworthy:

Notice, time and again [in her letters]: “the military’s discriminatory recruitment policy,” “the military’s policy,” “the military’s recruitment policy,” “the military’s discriminatory employment policy.”

But it is not the military’s policy. It is the policy of the U.S. Government, based on legislation passed in 1993 by (a Democratic) Congress, signed into law and implemented by the Clinton administration, legislation and implementation that are currently continued by a Democratic administration and a Democratic Congress. It is intellectually wrong and morally cowardly to call this the “military’s policy.” Wrong for obvious reasons. Cowardly because it allowed Kagan to go ahead and serve in the Clinton administration that enforced this policy she so detests, and to welcome to Harvard as Dean former members of that administration, as well as Senators and Congressmen who actually voted for the law–which is more than the military recruiters whom Kagan sought to ban did.

In addition to her attitude toward the military, one has to question her ability to put aside policy preferences and biases when engaging in constitutional analysis. She joined an amicus brief seeking to set aside as unconstitutional the Solomon Amendment, which required schools to allow military recruiters on campus. Stuart Taylor has suggested that “the Administration will have no trouble describing General Kagan’s position as reflecting that of Harvard as an institution — a position that was broadly shared among the nation’s elite Universities.” Well, that Ivy League institutions are uniformly hostile to the military and that Kagan made a constitutional argument based, it seems, on political conviction will hardly help matters. Recall, Kagan’s position lost 8-0. That’s as far out of the mainstream as you can get.

Is this grounds for opposing Kagan? Maybe not, but it also depends on what she says, what she’s written, and why she thought the Solomon Amendment was unconstitutional. This is what confirmation hearings are designed to explore.

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Should Conservatives Go to War over Kagan?

Tomorrow Obama is expected to nominate Elena Kagan to the Supreme Court. The question for conservatives is whether they should oppose such a nomination, and, if so, how hard. Chris Good writes:

I asked Carrie Severino, chief counsel and policy director of the Judicial Crisis Network (a conservative group focused on judicial nominees) what conservatives are going to say about Kagan, and what Kagan’s “wise Latina” moment, if there is one, will prove to be.

“She has been much more careful than Justice Sotomayor. She never would have said something like that even if she thinks it. She’s been so careful for so long that no one seems to know exactly what she does think,” Severino said.

Severino attended Harvard Law School, where Kagan served as dean. She asked fellow Harvard people about Kagan’s tenure as dean. “Everyone came back with the same perspective, which was she was careful to never say anything on the record, or off the record, to anyone about her own opinions, so I think she’s been carefully shepherding her image for a long time, possibly ever since her DC circuit nomination by President Clinton, so that’s a long time to effectively live on the short list.”

This is not to say that Kagan would take an originalist view of the Constitution or that her support for law schools’ position on military recruiters doesn’t betray a willingness to conflate liberal policy goals with Constitutional interpretation. But is she as objectionable as a judge, for example, who went to great lengths to support racial quotas and delivered the “wise Latina” speech? Well, one can bemoan her lack of judicial experience and scant writing record but should her nomination be opposed with a full court press?

At this point — and more might be revealed in hearings and upon the examination of her written work — I would think not. She frankly has not proven herself to be as adept a legal scholar as someone like Diane Wood, who would wow and sway the other justices. (It is intellectual argumentation rather than social charm that makes the difference on the Court.) So there could be worse — that is, more “dangerous” picks from a conservative perspective. Kagan has not made her life’s work the promotion of minority victimology. She isn’t without academic qualifications. So, while she’s not a judge conservatives would nominate, it’s hard to conceive of a reason for rigorously blocking her nomination.

This is the price of losing elections: the other side gets to govern and thus help shape the direction of the courts. It’s a reminder to find adept presidential nominees who can win and who will nominate judges at all levels who appreciate the proper role of the courts in our democratic system.

Tomorrow Obama is expected to nominate Elena Kagan to the Supreme Court. The question for conservatives is whether they should oppose such a nomination, and, if so, how hard. Chris Good writes:

I asked Carrie Severino, chief counsel and policy director of the Judicial Crisis Network (a conservative group focused on judicial nominees) what conservatives are going to say about Kagan, and what Kagan’s “wise Latina” moment, if there is one, will prove to be.

“She has been much more careful than Justice Sotomayor. She never would have said something like that even if she thinks it. She’s been so careful for so long that no one seems to know exactly what she does think,” Severino said.

Severino attended Harvard Law School, where Kagan served as dean. She asked fellow Harvard people about Kagan’s tenure as dean. “Everyone came back with the same perspective, which was she was careful to never say anything on the record, or off the record, to anyone about her own opinions, so I think she’s been carefully shepherding her image for a long time, possibly ever since her DC circuit nomination by President Clinton, so that’s a long time to effectively live on the short list.”

This is not to say that Kagan would take an originalist view of the Constitution or that her support for law schools’ position on military recruiters doesn’t betray a willingness to conflate liberal policy goals with Constitutional interpretation. But is she as objectionable as a judge, for example, who went to great lengths to support racial quotas and delivered the “wise Latina” speech? Well, one can bemoan her lack of judicial experience and scant writing record but should her nomination be opposed with a full court press?

At this point — and more might be revealed in hearings and upon the examination of her written work — I would think not. She frankly has not proven herself to be as adept a legal scholar as someone like Diane Wood, who would wow and sway the other justices. (It is intellectual argumentation rather than social charm that makes the difference on the Court.) So there could be worse — that is, more “dangerous” picks from a conservative perspective. Kagan has not made her life’s work the promotion of minority victimology. She isn’t without academic qualifications. So, while she’s not a judge conservatives would nominate, it’s hard to conceive of a reason for rigorously blocking her nomination.

This is the price of losing elections: the other side gets to govern and thus help shape the direction of the courts. It’s a reminder to find adept presidential nominees who can win and who will nominate judges at all levels who appreciate the proper role of the courts in our democratic system.

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Elena Kagan — Stealth Nominee?

Elena Kagan is the prohibitive favorite for the Supreme Court. She has made it through one confirmation hearing for her current post as solicitor general and possesses academic credentials, a reputation for collegiality with conservatives, and a limited paper trail. Moreover, she is the closest we have to a stealth candidate among the front-runners. As Tom Goldstein notes, “I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.”

Casual observers assume that a dean of Harvard Law School and a domestic-policy aide in the Clinton administration must have a sizable body of work reflecting her legal views. But not so. Paul Campos has read all there is to read — and it’s not much:

Yesterday, I read everything Elena Kagan has ever published. It didn’t take long: in the nearly 20 years since Kagan became a law professor, she’s published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review—a scholarly journal edited by Chicago’s own faculty—and a short essay in the school’s law review. She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing. (While it’s true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard’s dean, and for never having written anything intended for a more general audience, either before or after taking that position.)

Campos goes so far as to suggest that Kagan is a Harriet Miers type – minus the cronyism. He concludes:

Indeed, the most impressive thing about Kagan is that she seems to have a remarkable ability to ingratiate herself with influential people across the ideological spectrum. … As a private lawyer, Miers, after all, had a fairly good excuse for having no public views on the great legal issues of our day. For most of the past 20 years, Kagan’s job has been to both develop and publicize such views. That she has nevertheless managed to almost completely avoid doing so is rather extraordinary.

What to make of this? Well, if a Republican president were to select a person with such a skimpy written record, conservatives would be (and were with the Miers nomination) rightfully worried. But do the same concerns — ideological infidelity, intellectual mediocrity — really apply to Kagan? Let’s be honest, it works differently for liberals. Very few are tempted to moderate their views and slide rightward, while Republican-nominated jurists (David Souter, John Paul Stevens) have a history of “disappointing” their side. And while no one has claimed that Kagan has achieved greatness in legal scholarship, the assumption — rightly or not — is that the dean of one of the top law schools in the country must have some intellectual wattage. Nevertheless, liberal legal activists might have reason to be a bit nervous — after all, would a justice who lacks judicial chops be the best choice to sway Justice Kennedy on those all-important 5-to-4 decisions? Is she really the one who is going to go toe-to-toe with Justice Scalia? There is some risk there if Obama were to choose a lesser known quantity than an appellate judge such as Diane Wood.

Nevertheless, there are clues as to Kagan’s legal mindset. Indeed, one such clue is also her primary shortcoming. Stuart Taylor explains:

The one issue that could slow down Kagan’s confirmation is her impassioned effort as dean to bar military recruiting on campus to protest the law banning openly gay people from serving in the military, which she called “a moral injustice of the first order.”

Kagan carried this opposition to the point of joining a 2005 amicus brief whose strained interpretation of a law denying federal funding to institutions that discriminate against military recruiters would — the Supreme Court held in an 8-0 decision — have rendered the statute “largely meaningless.” This helps to explain the 31 Republican votes against confirming her as solicitor general.

Well, that might be enough to lose her a batch of GOP Senate votes, but would it derail her nomination? Probably not. And it might just give enough comfort to the left that Kagan is a “safe” pick for them.

Elena Kagan is the prohibitive favorite for the Supreme Court. She has made it through one confirmation hearing for her current post as solicitor general and possesses academic credentials, a reputation for collegiality with conservatives, and a limited paper trail. Moreover, she is the closest we have to a stealth candidate among the front-runners. As Tom Goldstein notes, “I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.”

Casual observers assume that a dean of Harvard Law School and a domestic-policy aide in the Clinton administration must have a sizable body of work reflecting her legal views. But not so. Paul Campos has read all there is to read — and it’s not much:

Yesterday, I read everything Elena Kagan has ever published. It didn’t take long: in the nearly 20 years since Kagan became a law professor, she’s published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review—a scholarly journal edited by Chicago’s own faculty—and a short essay in the school’s law review. She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing. (While it’s true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard’s dean, and for never having written anything intended for a more general audience, either before or after taking that position.)

Campos goes so far as to suggest that Kagan is a Harriet Miers type – minus the cronyism. He concludes:

Indeed, the most impressive thing about Kagan is that she seems to have a remarkable ability to ingratiate herself with influential people across the ideological spectrum. … As a private lawyer, Miers, after all, had a fairly good excuse for having no public views on the great legal issues of our day. For most of the past 20 years, Kagan’s job has been to both develop and publicize such views. That she has nevertheless managed to almost completely avoid doing so is rather extraordinary.

What to make of this? Well, if a Republican president were to select a person with such a skimpy written record, conservatives would be (and were with the Miers nomination) rightfully worried. But do the same concerns — ideological infidelity, intellectual mediocrity — really apply to Kagan? Let’s be honest, it works differently for liberals. Very few are tempted to moderate their views and slide rightward, while Republican-nominated jurists (David Souter, John Paul Stevens) have a history of “disappointing” their side. And while no one has claimed that Kagan has achieved greatness in legal scholarship, the assumption — rightly or not — is that the dean of one of the top law schools in the country must have some intellectual wattage. Nevertheless, liberal legal activists might have reason to be a bit nervous — after all, would a justice who lacks judicial chops be the best choice to sway Justice Kennedy on those all-important 5-to-4 decisions? Is she really the one who is going to go toe-to-toe with Justice Scalia? There is some risk there if Obama were to choose a lesser known quantity than an appellate judge such as Diane Wood.

Nevertheless, there are clues as to Kagan’s legal mindset. Indeed, one such clue is also her primary shortcoming. Stuart Taylor explains:

The one issue that could slow down Kagan’s confirmation is her impassioned effort as dean to bar military recruiting on campus to protest the law banning openly gay people from serving in the military, which she called “a moral injustice of the first order.”

Kagan carried this opposition to the point of joining a 2005 amicus brief whose strained interpretation of a law denying federal funding to institutions that discriminate against military recruiters would — the Supreme Court held in an 8-0 decision — have rendered the statute “largely meaningless.” This helps to explain the 31 Republican votes against confirming her as solicitor general.

Well, that might be enough to lose her a batch of GOP Senate votes, but would it derail her nomination? Probably not. And it might just give enough comfort to the left that Kagan is a “safe” pick for them.

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Flotsam and Jetsam

Harry Reid has even managed to stiffen Olympia Snowe’s spine: “For a second day in row, Democrats failed to open debate on a Wall Street reform bill after Senate Republicans held ranks to block it. The vote was 57 to 41, with all Republicans who were present voting no. Sen. Ben Nelson (D-Neb.) was the lone Democrat to vote no on Monday, and he voted no again. … In fact, some of the moderates who might be most likely to vote yes — such as Maine Sen. Olympia Snowe — have expressed displeasure that Reid is forcing the votes even as bipartisan negotiations on the bill go forward.”

Tom Goldstein thinks Obama will pick Elena Kagan for the Supreme Court. Among his smart observations: “Elena Kagan has significant demonstrated success in working with conservatives at Harvard Law School, which is an exceptionally challenging environment, and has parallels to the relationships at the Court. But she has never been a judge, and would as a consequence presumably take longer than the others to adapt to the new role.”

Israel isn’t going to buy into “containment” if that’s where Obama is heading with Iran: “Defense Minister Ehud Barak said the world cannot afford to wait too long to see if Iran backs down on its nuclear program while in Washington on Tuesday. In a news conference with Defense Secretary Robert Gates, Barak said he supports the US focus on tougher economic sanctions against Teheran, but he added that only time will tell to what extent sanctions are effective in persuading Iran to give up its nuclear ambitions. Barak says that if the international community waits too long, Iran could acquire a nuclear weapon that he says would ‘change the landscape,’ and not just of the Middle East.”

According to Robert Gates, “Syria and Iran are providing Hezbollah with so many rockets that they are at a point where they have more missiles than most governments in the world.” So what are we going to do about it?

Not remotely the most transparent administration in history: “The Obama administration has only partially complied with congressional subpoenas for information on the deadly November shootings at Fort Hood, Texas. The failure by the Defense and Justice departments to turn over all the requested documentation — which they say they do not intend to do — is not likely to ease the growing tension between some key senators and the Obama administration over the incident at the Army base on Nov. 5, 2009.”

Jeb Bush speaks out against Arizona’s immigration law. “I think it creates unintended consequences. … It’s difficult for me to imagine how you’re going to enforce this law. It places a significant burden on local law enforcement and you have civil liberties issues that are significant as well.”

Michael Gerson: “American states have broad powers. But they are not permitted their own foreign or immigration policy. One reason is that immigration law concerns not only the treatment of illegal immigrants but also the proper treatment of American citizens. And here the Arizona law fails badly. … Americans are not accustomed to the command ‘Your papers, please,’ however politely delivered. The distinctly American response to such a request would be ‘Go to hell,’ and then ‘See you in court.’”

The Obami’s multilaterialism fetish continues: “Step by tentative step, the Obama Administration is getting closer to embracing the International Criminal Court. The White House won’t join the Hague-based body soon, but that’s its logical endpoint. Answerable to virtually no one, the ICC was created by the 1998 United Nations’s Rome Statute to prosecute war and other ‘serious’ crimes.”

Harry Reid has even managed to stiffen Olympia Snowe’s spine: “For a second day in row, Democrats failed to open debate on a Wall Street reform bill after Senate Republicans held ranks to block it. The vote was 57 to 41, with all Republicans who were present voting no. Sen. Ben Nelson (D-Neb.) was the lone Democrat to vote no on Monday, and he voted no again. … In fact, some of the moderates who might be most likely to vote yes — such as Maine Sen. Olympia Snowe — have expressed displeasure that Reid is forcing the votes even as bipartisan negotiations on the bill go forward.”

Tom Goldstein thinks Obama will pick Elena Kagan for the Supreme Court. Among his smart observations: “Elena Kagan has significant demonstrated success in working with conservatives at Harvard Law School, which is an exceptionally challenging environment, and has parallels to the relationships at the Court. But she has never been a judge, and would as a consequence presumably take longer than the others to adapt to the new role.”

Israel isn’t going to buy into “containment” if that’s where Obama is heading with Iran: “Defense Minister Ehud Barak said the world cannot afford to wait too long to see if Iran backs down on its nuclear program while in Washington on Tuesday. In a news conference with Defense Secretary Robert Gates, Barak said he supports the US focus on tougher economic sanctions against Teheran, but he added that only time will tell to what extent sanctions are effective in persuading Iran to give up its nuclear ambitions. Barak says that if the international community waits too long, Iran could acquire a nuclear weapon that he says would ‘change the landscape,’ and not just of the Middle East.”

According to Robert Gates, “Syria and Iran are providing Hezbollah with so many rockets that they are at a point where they have more missiles than most governments in the world.” So what are we going to do about it?

Not remotely the most transparent administration in history: “The Obama administration has only partially complied with congressional subpoenas for information on the deadly November shootings at Fort Hood, Texas. The failure by the Defense and Justice departments to turn over all the requested documentation — which they say they do not intend to do — is not likely to ease the growing tension between some key senators and the Obama administration over the incident at the Army base on Nov. 5, 2009.”

Jeb Bush speaks out against Arizona’s immigration law. “I think it creates unintended consequences. … It’s difficult for me to imagine how you’re going to enforce this law. It places a significant burden on local law enforcement and you have civil liberties issues that are significant as well.”

Michael Gerson: “American states have broad powers. But they are not permitted their own foreign or immigration policy. One reason is that immigration law concerns not only the treatment of illegal immigrants but also the proper treatment of American citizens. And here the Arizona law fails badly. … Americans are not accustomed to the command ‘Your papers, please,’ however politely delivered. The distinctly American response to such a request would be ‘Go to hell,’ and then ‘See you in court.’”

The Obami’s multilaterialism fetish continues: “Step by tentative step, the Obama Administration is getting closer to embracing the International Criminal Court. The White House won’t join the Hague-based body soon, but that’s its logical endpoint. Answerable to virtually no one, the ICC was created by the 1998 United Nations’s Rome Statute to prosecute war and other ‘serious’ crimes.”

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Stevens to Retire — a Deserving Nominee This Time?

Supreme Court Justice John Paul Stevens is giving interviews and advising us that he will be departing during Obama’s term. Although Justices often time their departures to coincide with a president whom they imagine would nominate a like-minded justice, none has been so bold as Stevens to directly proclaim that as his rationale. The only question is when exactly he’ll pack it in. He suggested in Sunday interviews with the New York Times and Washington Post that he might have another year to go, but why then give the retirement-predicting interviews now?

Sen. Arlen Specter, who may speak for no one other than Arlen Specter, suggested that it would be best to wait a year. He proclaimed: “I think the gridlock in the Senate might well produce a filibuster which would tie up the Senate about a Supreme Court nominee. I think if a year passes, there’s a much better chance we could come to a consensus.” Well, that might be desirable for Specter, who faces a dicey reelection and might not want to be caught up in a contentious Supreme Court fight. But the Democrats are almost certain to lose Senate seats this year — perhaps a great many — so it seems that waiting a year makes confirmation of an Obama nominee less, not more, certain.

What we do know is that Stevens’ retirement is unlikely to have much of an impact on the outcome of many of the Court’s decisions. The irascible and often quirky liberal will be replaced by another liberal, and the Court’s 5-4 split on most tough cases is likely to endure.  It also seems that Obama, to some extent, learned his lesson with the not-very-wise-at-all Sonia Sotomayor, who was selected for diversity or empathy reasons, the president boasted. The suggested short list of nominees — Solicitor General Elena Kagan (former dean of Harvard Law School), Judge Diane Wood of the Seventh U.S. Circuit Court of Appeals, and Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit — are indisputably smart, capable, and qualified. They are there because they will be solidly dependable liberal votes and advance those arguments with intellectual vigor.  They may not be the ideal justices conservatives would have in mind, but this — losing Supreme Court seats – is what comes from losing the presidency.

Supreme Court Justice John Paul Stevens is giving interviews and advising us that he will be departing during Obama’s term. Although Justices often time their departures to coincide with a president whom they imagine would nominate a like-minded justice, none has been so bold as Stevens to directly proclaim that as his rationale. The only question is when exactly he’ll pack it in. He suggested in Sunday interviews with the New York Times and Washington Post that he might have another year to go, but why then give the retirement-predicting interviews now?

Sen. Arlen Specter, who may speak for no one other than Arlen Specter, suggested that it would be best to wait a year. He proclaimed: “I think the gridlock in the Senate might well produce a filibuster which would tie up the Senate about a Supreme Court nominee. I think if a year passes, there’s a much better chance we could come to a consensus.” Well, that might be desirable for Specter, who faces a dicey reelection and might not want to be caught up in a contentious Supreme Court fight. But the Democrats are almost certain to lose Senate seats this year — perhaps a great many — so it seems that waiting a year makes confirmation of an Obama nominee less, not more, certain.

What we do know is that Stevens’ retirement is unlikely to have much of an impact on the outcome of many of the Court’s decisions. The irascible and often quirky liberal will be replaced by another liberal, and the Court’s 5-4 split on most tough cases is likely to endure.  It also seems that Obama, to some extent, learned his lesson with the not-very-wise-at-all Sonia Sotomayor, who was selected for diversity or empathy reasons, the president boasted. The suggested short list of nominees — Solicitor General Elena Kagan (former dean of Harvard Law School), Judge Diane Wood of the Seventh U.S. Circuit Court of Appeals, and Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit — are indisputably smart, capable, and qualified. They are there because they will be solidly dependable liberal votes and advance those arguments with intellectual vigor.  They may not be the ideal justices conservatives would have in mind, but this — losing Supreme Court seats – is what comes from losing the presidency.

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Ma Wins. Now What?

The New York Times regularly signals changes in the conventional wisdom of our foreign policy elite. Careful reading of its reporting on the election of Ma Ying-jeou as president of Taiwan suggests that the impossiblilities of the policies laid down in the 1970’s are now, gradually, being faced.

To be sure, the Times editorial page joins in the official delight at the overwhelming defeat of the Democratic Progressive Party of the widely vilified President Chen Shuibian, who “spent much of the last eight years baiting Beijing, talking about independence, and seeking international recognition.”

With the departure of Chen, and the election of a president of Chinese ancestry, fluent in English and with a degree from Harvard Law School, the Times sees “a chance for a healthy new start” in Taiwan-China relations. “Mr. Ma has proposed economic opening to China, military confidence building measures, and “a diplomatic framework in which the two sides simply acknowledge each other’s existence.” “The Bush administration” it tells us “is already pressing Beijing to work with Mr. Ma”–this even before he has been inaugurated.

The hopes of both the Times and of Washington are likely to be disappointed. When that happens, they will both face a test.

To begin with, Ma has stated that China must dismantle the thousand-plus missiles with which she currently targets the island. He has also welcomed a visit to his country by the Dalai Lama. That is already enough to enrage Beijing, but only a start.

The truly tricky task, as the newspaper noted two days earlier, will be for Ma “to find a formula that balances Beijing’s position that Taiwan is a breakaway province and Taiwan’s position that it is a sovereign country.”

Finding such a formula will be more than tricky. It will be impossible without the (highly unlikely) amendment of the Chinese constitution, which explicitly claims Taiwan as a province—a fact the Times does not mention.

The result? The “healthy new start” that the Times anticipates will likely lead nowhere. Like every elected president of Taiwan, Ma will have to choose between standing for what his people want and yielding to Beijing. When Ma likely refuses to yield, Beijing will castigate him and call on Washington to do the same—as we always have in the past.

But maybe not this time. The conclusion of the editorial suggests that the blame for failure may now be laid at Beijing’s door.

“China’s authoritarian ways are backfiring in Tibet,” the editorial concludes. “Whatever Beijing’s fantasies about unification, it is not likely to happen soon-and maybe not ever–given Taiwan’s strong commitment to political and economic freedom. China would be better off following Mr. Ma’s lead . . .”

Following Mr. Ma is something that Beijing is unlikely to do. But for Washington, like the Times, to offer steady support to realistic proposals by Taiwan’s democratically-elected government would be a genuinely constructive change.

The New York Times regularly signals changes in the conventional wisdom of our foreign policy elite. Careful reading of its reporting on the election of Ma Ying-jeou as president of Taiwan suggests that the impossiblilities of the policies laid down in the 1970’s are now, gradually, being faced.

To be sure, the Times editorial page joins in the official delight at the overwhelming defeat of the Democratic Progressive Party of the widely vilified President Chen Shuibian, who “spent much of the last eight years baiting Beijing, talking about independence, and seeking international recognition.”

With the departure of Chen, and the election of a president of Chinese ancestry, fluent in English and with a degree from Harvard Law School, the Times sees “a chance for a healthy new start” in Taiwan-China relations. “Mr. Ma has proposed economic opening to China, military confidence building measures, and “a diplomatic framework in which the two sides simply acknowledge each other’s existence.” “The Bush administration” it tells us “is already pressing Beijing to work with Mr. Ma”–this even before he has been inaugurated.

The hopes of both the Times and of Washington are likely to be disappointed. When that happens, they will both face a test.

To begin with, Ma has stated that China must dismantle the thousand-plus missiles with which she currently targets the island. He has also welcomed a visit to his country by the Dalai Lama. That is already enough to enrage Beijing, but only a start.

The truly tricky task, as the newspaper noted two days earlier, will be for Ma “to find a formula that balances Beijing’s position that Taiwan is a breakaway province and Taiwan’s position that it is a sovereign country.”

Finding such a formula will be more than tricky. It will be impossible without the (highly unlikely) amendment of the Chinese constitution, which explicitly claims Taiwan as a province—a fact the Times does not mention.

The result? The “healthy new start” that the Times anticipates will likely lead nowhere. Like every elected president of Taiwan, Ma will have to choose between standing for what his people want and yielding to Beijing. When Ma likely refuses to yield, Beijing will castigate him and call on Washington to do the same—as we always have in the past.

But maybe not this time. The conclusion of the editorial suggests that the blame for failure may now be laid at Beijing’s door.

“China’s authoritarian ways are backfiring in Tibet,” the editorial concludes. “Whatever Beijing’s fantasies about unification, it is not likely to happen soon-and maybe not ever–given Taiwan’s strong commitment to political and economic freedom. China would be better off following Mr. Ma’s lead . . .”

Following Mr. Ma is something that Beijing is unlikely to do. But for Washington, like the Times, to offer steady support to realistic proposals by Taiwan’s democratically-elected government would be a genuinely constructive change.

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Beware Of Harvard Lawyers Running For President

Barack Obama, who likes to remind us that he is a constitutional law expert, opined Friday on the Second Amendment and the District of Columbia handgun ban, which is the subject of a landmark case before the Supreme Court. He offered this:

There’s been a long standing argument by constitutional scholars about whether the second amendment referred simply to militias or it spoke to an individual right to possess arms. I think the latter is the better argument. There is an individual right to bear arms, but it is subject to common-sense regulation just like most of our rights are subject to common-sense regulation. So I think there’s a lot of room before you getting bumping against a constitutional barrier for us to institute some of the common-sense gun laws that I just spoke about.

One hardly knows where to start. First, I think even at Harvard Law School they teach that when fundamental constitutional rights (e.g. speech, voting) are at issue, government regulation must be more than merely “common-sense” (usually termed “reasonable” in legalese) in order to abridge that right. (Likewise, in the area of discrimination prohibited by the 14th Amendment the government may not merely offer a “reasonable” explanation for classifying citizens by race.) In most cases, statutes which implicate constitutional rights are evaluated under a “strict” scrutiny test, or at the very least, an intermediate scrutiny test (for example, in the case of discrimination on the basis of gender). To simplify, the government has to have compelling or very important reasons to violate a constitutional right, and the means must be tailored narrowly to meet the objectives. Next problem: usually an outright ban on a constitutional right, as was the case with the D.C. handgun ban, is not going to meet any heightened scrutiny test.

Let’s apply his reasoning to abortion, which the Supreme Court has found to be constitutionally protected. Would a D.C. ban on abortion be a common-sense or reasonable regulation? I thought not. We can either conclude that Obama is not a great constitutional guru after all or he is attempting to pull some legal wool over voters’ eyes.
Barack Obama, who likes to remind us that he is a constitutional law expert, opined Friday on the Second Amendment and the District of Columbia handgun ban, which is the subject of a landmark case before the Supreme Court. He offered this:

There’s been a long standing argument by constitutional scholars about whether the second amendment referred simply to militias or it spoke to an individual right to possess arms. I think the latter is the better argument. There is an individual right to bear arms, but it is subject to common-sense regulation just like most of our rights are subject to common-sense regulation. So I think there’s a lot of room before you getting bumping against a constitutional barrier for us to institute some of the common-sense gun laws that I just spoke about.

One hardly knows where to start. First, I think even at Harvard Law School they teach that when fundamental constitutional rights (e.g. speech, voting) are at issue, government regulation must be more than merely “common-sense” (usually termed “reasonable” in legalese) in order to abridge that right. (Likewise, in the area of discrimination prohibited by the 14th Amendment the government may not merely offer a “reasonable” explanation for classifying citizens by race.) In most cases, statutes which implicate constitutional rights are evaluated under a “strict” scrutiny test, or at the very least, an intermediate scrutiny test (for example, in the case of discrimination on the basis of gender). To simplify, the government has to have compelling or very important reasons to violate a constitutional right, and the means must be tailored narrowly to meet the objectives. Next problem: usually an outright ban on a constitutional right, as was the case with the D.C. handgun ban, is not going to meet any heightened scrutiny test.

Let’s apply his reasoning to abortion, which the Supreme Court has found to be constitutionally protected. Would a D.C. ban on abortion be a common-sense or reasonable regulation? I thought not. We can either conclude that Obama is not a great constitutional guru after all or he is attempting to pull some legal wool over voters’ eyes.

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