Tag Archives: kagan

A Truly Bizarre Critique of Kagan’s Approach to International Law

Posted on by
1

Solicitor General (and Supreme Court nominee) Elena Kagan has taken some fire for her views relating to international law, which I would characterize as decidedly middle of the road.  Critics have urged that Kagan’s love of a certain foreign jurist is troubling, and that her “replacement” of constitutional law with international law was odd.  But in her written responses [PDF] to questions from Senator Grassley, Kagan again distanced herself from any approach (like Harold Koh’s) that would aggressively incorporate international law into domestic law:

I believe that the role of domestic courts is to decide the cases that come before them based on the law.  In some rare circumstances, United States law may require a court to look to foreign or international law to resolve the parties’ claims.  I do not believe, however, that courts should view their role as domesticating international law into U.S. law or as using their interpretive powers to promote the development of a global legal system.

That seems pretty reasonable to me.  But not to the Home School Legal Defense Association (HSLDA):

HSLDA has been concerned about Ms. Kagan’s nomination because of her support of international law over the U.S. Constitution while she was Dean of Harvard School of Law. Our concerns were not alleviated, but only grew with Kagan’s answers during her hearing.

***

We are concerned about Kagan citing foreign or international law as a Supreme Court justice because of the danger that could ensue if she ever cited the U.N. Convention on the Rights of the Child (CRC) as precedent in a Supreme Court opinion. This treaty could severely limit parental rights.

Wait, what?  HSLDA is worried that Kagan might incorporate some international law into Supreme Court decisions, which might include a particular treaty (the CRC), which might be somehow relevant to a decision of the Court, and might result in more limits on parental rights?

You know, I fancy myself a pretty conservative guy.  But if this is really the type of stuff that we have to worry about with Kagan, then I say go ahead and confirm her.

-Michael

There Is No Such Thing As a Legal Progressive

Posted on by
Reply

At the Kagan confirmation hearings today, Senator Sessions (R-AL) had some tetchy back and forth with the Supreme Court nominee. One of the questions that has been getting a lot of coverage in the media and blogosphere, however, was when Sessions asked Kagan if she was a “legal progressive.”

A what? Legal progressive? What the heck is that?

Is it… a progressive who does law? In which case, of course Kagan is one. But that can’t have been what the term was meant to imply — a phrase like “legal progressive” suggests some sort of theory of jurisprudence, not merely a description of a progressive who happens to have a JD.

When I heard Sessions use the phrase, I blinked a couple times. Which I’m sure Kagan was probably doing, too. And then I tried to figure out what on earth he was talking about.

Legal positivist, legal realist, legal pragmatist, legal formalist, natural law theorist, critical legal studies theorist, legal hermeneutics — I’m pretty familiar with all those, and I could probably rattle off a few more “legal X-isms” if I spent some more time thinking about it. But “legal progressive” I’ve never before come across. So I was sort of relieved when Kagan acknowledged that she hadn’t a clue what it meant, either.

Google seems to agree with me and Kagan. A search for the term does not reveal any web page using the phrase that is not actually in reference to Kagan’s nomination, or else refers to something entirely unrelated. I’ve now clicked through 12 pages of Google results for “legal progressive,” and I cannot find even one that suggests such a pre-Kagan judicial philosophy has ever existed.

In response to Kagan’s semi-confused queries about what he meant, Sessions responded, “Well, it means something, and I would have to classify you as someone in the theme of a legal progressive.” One would think that if the term really meant ‘something,’ and if Sessions knew what this ‘something’ was, he would’ve elaborated. But regardless of what Sessions’ personal understanding of the term is, I am relatively certain that if “legal progressive” had a pre-Kagan meaning, it would have turned up within the top 10 pages of Google results.

Even those using this exchange as proof that Kagan is being deliberately obtuse at best, and a blatant liar at worst, can offer no proof that the term has any academic significance. The original source of the term appears to be Joe Biden’s Chief of Staff, who stated, “Elena is clearly a legal progressive… She’s got a pragmatic perspective.” As best I can tell, the VP Chief of Staff coined the term on the spot, or else was confusing it with Posner-style legal pragmaticism. (In which case, if Kagan truly is one, by all means, hurry up and confirm her!)

But no one has been able to step forward and offer a definition for the jurisprudence of legal progressivism.

Mostly because, well, it doesn’t exist. There is no more a judicial philosophy known as “legal progressivism” than there is one called “legal regressivism.” Kagan was right not to answer the question, because any answer she could’ve given would’ve been factually wrong — someone cannot be a follower or non-follower of a judicial philosophy that has yet to be created.

Hollow and vapid, indeed.

-Susan

Kagan Called on the Carpet for Quotation Marks

Posted on by
Reply

The comical indictments of Kagan’s nomination keep on coming.  Again, the National Review (don’t ask me why I read this stuff) reprints some Kagan criticism from Doug Johnson of the National Right to Life Committee:

Regarding Ms. Kagan’s specific views on the Court’s past abortion-related rulings, there is little on the public record.  But Ms. Kagan may have betrayed a possible personal animus towards the pro-life movement in a 1980 essay lamenting Republican gains in the 1980 election, in which she referred disparagingly to “victories of these anonymous but Moral Majority-backed [candidates] . . . these avengers of ‘innocent life’ and the B-1 Bomber . . .”   Was Ms. Kagan so dismissive of the belief that unborn children are members of the human family that she felt it necessary to put the term “innocent life” in quote marks, or does she have another explanation?

I think the National Review is having a lot of “success” digging up “troubling issues” on Kagan.  She should really be “worried.”  But why didn’t someone call out John Roberts (when he was a nominee) for his excessive use of semicolons, eh?!

-Michael

Bad Drivers = Bad Justices?

Posted on by
2

I wouldn’t call myself Elena Kagan’s biggest fan, but some of the conservative attacks on her are getting ridiculous.  Here’s a particularly pitiful one from The National Review:

In addition to her kicking military recruiters off Harvard’s campus during wartime and being paid for a comfy position on a Goldman Sachs advisory board, this passage (from this article) nicely captures Elena Kagan’s remoteness from the lives of most Americans:

Kagan … is such a product of New York City that she did not learn to drive until her late 20s. According to her friend John Q. Barrett, a law professor at St. John’s University, it is a skill she has not yet mastered.

Apparently, kids, if you want to be a Supreme Court justice, you’d better do well in drivers’ ed.

-Michael