Why we should be very afraid of Elena Kagan

power line ^ | 5/24/10 | staff

[Nachum]

From the Harvard Law Record, via Ed Whelan, we learn that Elena Kagan considers Israeli supreme court justice Aharon Barak her "judicial hero." According to Kagan, Barak "is the judge who has best advanced democracy, human rights, the rule of law, and justice."

However, it would appear that Kagan's judicial hero actually has very little regard for the rule of law and, indeed, is the antithesis of what a judge should be. That, at least, has been my understanding of Barak. It is also the view of Judge Richard Posner, and he makes a compelling case:

[A]lthough he is familiar with the American legal system and supposes himself to be in some sort of sync with liberal American judges, he actually inhabits a completely different--and,to an American, a weirdly different--juristic universe. I have my differences with Robert Bork, but when he remarked, in a review of [Barak's book] The Judge in a Democracy, that Barak "establishes a world record for judicial hubris," he came very near the truth.

[dalebert]

Is there any way to get democrats or republicans to fight against this nomination?

[definitelynotaliberal]

I’m tired of all the Elena Kagan speculation. Why can’t we just get another wise Latina woman, who, with the richness of her experience, can reach a better conclusion than a white man who hasn’t lived that life? Do we have to try all the other ethnic groups on for size? For Pete’s sake!

[TheBigIf]

If Kagan really believes some of things espoused in this article by her judicial hero then how about this principle:

“...that any citizen can ask a court to block illegal action by a government official, even if the citizen is not personally affected by it (or lacks “standing” to sue, in the American sense)”

Does this mean Kagan will vote for discovery in the case of Barry Soetoro aka. Barack Hussein Obama?

FREE THE LONG FORM!!!

[Goreknowshowtocheat]

Senator Kyl says she is OK. What more could we ask?

[Carley]

The owner of world class arrogance, ignorance and malevolence is our very own maoist.

[DrC]

“Why can’t we just get another wise Latina woman, who, with the richness of her experience, can reach a better conclusion than a white man who hasn’t lived that life?”

Just speculating, but perhaps it is because Elena Kagan is a wise Jewish woman, who has had a richness of er... experience that the wise Latina woman has not and can therefore reach a better conclusion on issues such as gay marriage and “don’t ask, don’t tell” than can her Latina counterpart.

[MontaniSemperLiberi]

Poking around the internet, I find hints that Kagan and Obama are sympathetic to “Critical Legal Theory”, http://en.wikipedia.org/wiki/Critical_legal_studies , which is a “neo-Marxist” theory of Law, http://en.wikipedia.org/wiki/The_Frankfurt_School that believes law is just power politics.

Here is a pretty nice link to what I am talking about, http://www.brennancenter.org/blog/archives/16481/ Note the quotes attributed to Kagan.

I have found nothing direct to link Obama and Kagan to Critical Legal Theory yet but clearly they were at least comfortable in its presence. Scary stuff.