I see a number of ancillary issues being brought to the front re:the nomination of Ms. Kagan. At this point, I’m not certain the legitimacy of these in deciding the matter of her appointment to the Supreme Court.
Personally, for what it matters - which admittedly is not much - I remain undecided on her as a potential member of the High Court.
One legal scholar, of which I have been familiar with for a number of years, offers this piece about Ms. Kagan.
[quote] About Kagan: False Dichotomies and Dangerous Justices
by John Armor (760 words)
The American press has started to discuss the nomination of Elena Kagan in liberal - conservative terms. This is a false dichotomy. The real, major question is whether the prospective Justice will, or will not, obey and apply the Constitution of the United States.
Using the word “liberal” in its old, Latin-based meaning, there are provisions in the Constitution which are more liberal, more conducive to individual freedom, than the provisions of the balance of the world’s 186 constitutions. A case in point is the First Amendment’s guarantee of freedom of the press. In definition and in practice, that Amendment guarantees the right of citizens to write and broadcast comments that few other governments would dare tolerate.
Using the word “conservative” in its old, Latin-based meaning, there are provisions in the Constitution that are more conservative, more protective of maintaining things as they are, than the provisions of the balance of the world’s 186 constitutions. A case in point is Article V which provides the amendment provisions. A vote of two-thirds of each House of Congress, followed by a vote of the legislatures of three-fourths of the states, is a very high burden.
Fundamental, governmental change in the United States is simply more difficult than in all but a handful of the world’s nations. More than 10,000 proposed amendments have been offered in Congress over the years. Only 27 have passed both Houses of Congress and been ratified by the states.
The paradox is that those Justices who understand, respect and follow the Constitution will support both that liberal position on the First Amendment and that conservative position on Article V. Sad to say, most reporters who write on the Supreme Court do not understand that the standard political labels of liberal and conservative are deceptive when applied to the Court. Most also fail to understand that respect for the Constitution is the real basic question about any nominee for the Court.
Now, let’s apply this thinking to Ms. Kagan. In the United Citizens case just decided, as Solicitor General she argued against the outcome which the Court reached in that case. She actually said, in front of the Court that the law should be able to “ban books.” That is a clear affront to the First Amendment.
She is against the US military. She sought to prevent the military services from recruiting at Harvard Law when she was Dean there. She was against the Clinton Administration’s “don’t ask, don’t tell.” Harvard Law joined in the effort led by Yale Law to defeat the Solomon Amendment in court, and took that fight to the Supreme Court where it lost, unanimously.
In a nutshell, the Solomon Amendment said that any university which received federal funds had to allow military recruiters on their campuses. Harvard’s position was, never mind what Congress said in the law. We want the court to throw out the law and give us the money, free and clear.
It was known to every first-year law student why this position would lose. Long ago, the Supreme Court upheld the federal law which required states to establish the 55 MPH speed limit. Congress, of course, had no authority over state motor vehicle laws. But it did have the power to set conditions on how it spends money.
Kagan’s argument was based on the idea that judges are smarter than ordinary people, and therefore judges should be able to “modernize” and rewrite both laws and the Constitution itself, whenever they agreed such change was necessary. That was her position as Dean of Harvard Law.
It is true that Kagan has a “very thin” record because she has never served as a judge, and did little scholarship while at Harvard. So, there is not much for people or politicians to seize on, to show how she would act as a Justice on the Supreme Court. But what there is indicates that she fails the very first requirement for any Justice on the Court, to obey the Constitution.
Every public official in the US at all levels, take an oath to preserve and protect the Constitution. The President’s oath is specified in the Constitution. All the rest are a matter of choice and tradition. One of the most lame oath is the one that Justices swear. I challenge reporters to get that text out of the Court’s press office, as I did, several years ago.
Still, that oath binds every Justice to obey the Constitution. Elena Kagan has already demonstrated that she doesn’t intend to do that. Therefore, she doesn’t belong on the Court.
About the Author: John Armor practiced before the Supreme Court for 33 years. His latest book, in September, is on Thomas Paine. [/quote]
I do not look for this to be a ‘shoo-in’ and think the debate over her nomination will be a healthy thing for the USA given its current political, economic and social condition.
Cute. But the goal should be to empower the historically oppressed (not males) so that they have the qualifications needed for positions of power and influence (not childhood educators or library directors), and to ensure that such positions are in fact open to them on an equal opportunity basis (something I’d argue is not entirely true for, say, Muslims and atheists in American politics at present), not to ensure that any particular demographic is equally represented in any particular profession as in your example. However, your point that changing the environment can be unintuitively difficult is well taken.