Solicitor General Elena Kagan, President Obama’s nominee to the Supreme Court, is already being painted as a moderate by the media and some political interest groups. This portrayal of Kagan is difficult to dispute comprehensively because of her lack of a public record and accompanying statements that delineate her actual personal views on judicial philosophy, thus, complicating the venture of placing her on an ideological spectrum.
Despite this hermeneutical difficulty, allegedly confident political portraits have been made with the details that we do know about Elena Kagan. The New York Times on May 11 published a piece—“As Clinton Aide, Kagan Recommended Tactical Support for an Abortion Ban”—by Peter Baker discussing a memorandum authored by Kagan while she was working for the Clinton Administration. Kagan in the memo counseled President Clinton to support an amendment, authored by Senator Tom Daschle (D-SD), to Republican-sponsored legislation to ban partial-birth abortion that would include an exception for the “health” of the pregnant women in a ban—so broad an exception that it could be easily employed as a loophole that would prevent few, if any, partial-birth abortion procedures.
President Clinton and his advisors (in this case, Kagan) anticipated that the Daschle amendment would not secure enough votes to pass, but White House support could provide enough political cover for Democratic lawmakers who could reiterate their alleged support of the partial-birth abortion ban, but justify their vote against it because of the lack of inclusion of the broad “health” exception for the pregnant woman. In the end, the Daschle amendment failed and the Republican-sponsored partial-birth abortion ban, endorsed by the National Right to Life, was successfully sent to President Clinton who consequently vetoed it. Kagan’s advice to the President was successful and held up the passage of a partial-birth abortion ban for six years.
Douglas Johnson, the legislative director of the National Right to Life, before a joint-hearing before the U.S. Senate Judiciary Committee and the Constitution Subcommittee of the U.S. House Judiciary Committee in 1997 said:
“The Clinton-Daschle proposal is a political construct, designed to provide political cover for lawmakers who want to appear to their constituents as if they have voted to restrict partial-birth abortions, while actually voting for a hollow measure that is not likely to prevent a single partial-birth abortion, and which therefore is inoffensive to the pro-abortion lobby.”
In other words, a better reading of the facts is not that Kagan is “in the middle” on abortion, but rather she was advising President Clinton of the pragmatic steps (endorsing a pseudo-ban on partial birth abortion) needed to defeat the actual pro-life measure. Kagan may very well be a “legal progressive” as was recently claimed from the White House defending the nominee from the political left suspicious of her liberal credentials. Continue reading
In a tribute to common sense, the U.S. Supreme Court has ruled that a Cross raised in 1934 as a tribute to U.S. soldiers who died in World War I may stay at the Mojave National Preserve. The depressing part of this news was that the vote was 5-4. Stevens, who is retiring, voted with the four justices who viewed the Cross as a threat to our constitutional order.
To ask some questions is to answer them, and via Commonweal, I see that UCLA history professor emeritus Joyce Appleby has penned a lovely exercise in anti-Catholicism entitled, Should Catholic Justices Recuse Selves On Certain Cases?. Here is an excerpt:
But because of the Catholic Church’s active opposition to abortion, same-sex marriage and capital punishment, it raises serious questions about the freedom of Catholic justices to judge these issues. Perhaps the time has come to ask them to recuse themselves when cases come before their court on which their church has taken positions binding on its communicants…
…Recusal sounds like a radical measure, but we require judges to withdraw from deliberations whenever a personal interest is involved. Surely ingrained convictions exert more power on judgment than mere financial gain. Many will counter that views on abortion, same-sex marriage, and the death penalty are profound moral commitments, not political opinions. Yet who will argue that religious beliefs and the authority of the Catholic Church will have no bearing on the justices when presented with cases touching these powerful concerns?
American Political Theory and Constitutional Law Series, Pt. I
The American people have a history of distrust and suspicion of centralized authority. The original framework for the primitive independent-America outlined in the Articles of Confederation was not weak by accident. Even despite the clear insufficiency of the-then government under the Articles, the framers of the Constitution still found their vision of government to be a hard sell. It is fair to say their success was in finding an effective mix between the Athenian assembly and Roman Senate combined with ‘checks and balance’ with two other branches of government—a republic instead of a direct democracy.
In many ways, this debate has lived on. It is remarkable, particularly in recent decades, how many constitutional amendments have been given real and serious consideration by the U.S. Congress, from balanced budgets, to flag desecration, to super-majorities for taxes, to line-item veto just begin the list in attempts to reshape the constitutional order.
For some time I have had mixed and often conflicting beliefs about this whole debate. The usual “left” versus “right” spin is, as usual, tiring. Though, I have re-engaged the matter due largely to a new found interest in the project development of Catholic legal theory. Such an undertaking on the part of Catholic law professors and legal professionals have been enormously helpful in the process of asking serious questions and finding an authentic Catholic answer to crucial questions about American government, constitutional law, and jurisprudence. This couldn’t be more true than with my quarrels with the “living Constitution theory” as well as “originalism.” Though it is probably still the case, to some degree, that I am troubled about answers to these questions. I have become more convinced by those who make the case (in regard to one matter) that America needs a much needed reminder: constitutional amendments should be rare and limited to issues of historic significance. The U.S. Constitution must be preserved from short-term and sudden passions. The starting point, I think, is to reiterate, as the Founding Fathers did, the merits of representation, deliberation, and conciliation.
American voters in great number say they favor change, but there is no consensus or clarity about neither the amount nor direction such change should take. Not so surprisingly, contemporary political debates do very little to educate the public about essential constitutional issues. Serious discussion is not only past due, but is vital. What is a greater threat to constitutional government than a lack of substantive public debate and public awareness? An uninformed, ignorant public is perilous to the common good and constitutional order.
Hattip to the ever eagle eyed Jay Anderson at Pro Ecclesia. Justice Antonin Scalia on stare decisis and Roe. By the way, Scalia’s low estimate of Roe as a legal opinion is pretty nearly universal in the legal world. Liberal attorneys and judges, even though they support abortion on demand, will frequently agree in private, and sometimes in public, that Roe was a shoddy piece of legal work, and that Harry Blackmun, the author of Roe, was a poor excuse for a jurist. This of course does not prevent them from supporting Roe since they approve of the result, but it does mean that all of the many cases following Roe are based on an intellectually, and of course constitutionally, rotten foundation. We can see this in the opinions that strain to make sense of Roe, which, as Judge Bork famously noted, is completely devoid of legal argument.
Ronald Rotunda, is currently a Professor of Law at George Mason University. Twenty-seven years ago he had the onerous task of attempting to beat legal ethics ( and I can almost hear most of you shouting “Oxymoron!”) into the heads of second year law students at the University of Illinois. I was one of his pupils. I came away from his class no more ethical than when I went in, but with a thorough knowledge of the rules regarding legal ethics in the state of Illinois. I also came away with a keen appreciation for both Professor Rotunda’s dry wit, and his strong intellect. Here is his web-site. He is the one wearing a bow tie and not the Vulcan. As you can see from his site, Professor Rotunda, unlike most law professors and most lawyers, does not take himself very seriously.
Lawlor and McDonald, the two anti-Catholic bigots behind a bill to tell the Catholic Church how to operate in Connecticut, have tucked their tails between their legs, cancelled the hearing on their bill, and their hate note to the Catholic Church, disguised as a bill, is dead for this legislative session. Massive publicitity worked the trick, and endless outraged calls, e-mails and faxes to the legislators. Kudos to State Senator John McKinney (Republican, Fairfield) who called 24 hours ago for the hearing on this bill to be cancelled and announced that every Republican in the state senate was against this bill, and that the bill was blatantly unconstitutional. I am sure the bigots will be back, but so will those of us who oppose them. A good day in Connecticut.
Update: Hmmm. The bigots were apparently in alliance with members of Voice of the Faithless. Surprise!
Anti-Catholic bigots are busily at work in the Connecticut state legislature. Raised Bill 1098 would effectively place any corporation connected with the Roman Catholic Church in Connecticut under lay control. The sponsors of the bill, Representative Mike Lawlor, ironically a law professor, and State Senator Andrew J. McDonald, a lawyer, generously allow the local bishop or archbishop to serve on such a board of directors but without a vote.