Why Kagan Is Unqualified -- and Dangerous

Despite being thoroughly unqualified to occupy the bench, Elena Kagan will most likely be confirmed to the Supreme Court. This is because most of our hundred senators are almost as unqualified to judge a judge as she is to be one. What is the proper criterion to apply? Well, a simple analogy illustrates the point best.

Let's say you needed to hire a football referee. If he said that he was a "pragmatic" referee, who viewed the rule book as "living" and thus would interpret the rules to suit the "times," would he be your man?

Since it's the job of the rule-makers to craft the rules, and the referee's role is only to determine if they've been broken, I think you'd be aghast. It would be obvious that you were dealing with someone who didn't know what his job was or was unwilling to perform it. And you certainly wouldn't want to hire a referee who was giving himself the latitude to say, "This fellow here violated a rule, but since I don't like that rule, I'm going to let his action stand" or "That guy over there has gone by the book, but I don't like something he did, so I'll penalize him anyway."

A judge's job is analogous to a referee's. It is the legislature's (rule-makers') place to make the rules, and the judge's only role is to determine if they've been broken. How he feels about a given law is irrelevant. He is but a gatekeeper.

Yet there is a difference between the two examples: While people could easily grasp this if the matter were a frivolity such as sports, they entertain the most inane rationalizations when the issue is our national rulebook, the Constitution.

Great article! Thanks for posting it. I just cannot believe what happened in the hearings for this woman! She was not only less than candid - on several occasions, she out and out LIED. Although I agree that elections have consequences and that a POTUS is entitled to appoint those whom he chooses, the appointees should NOT be confirmed if they are so obviously UNAQUALIFIED and UNSUITABLE for the appointment - particularly a LIFETIME appointment!!

An umpire must sometimes formulate his own rules if a situation arises which the drafters of the official rules did not anticipate. An umpire should endeavor to be consistent in such rulings, but should yield to official rule makers if official rules are added which contradict the umpire's own rules. Very seldom should the umpire's rulings contradict the official rules.

About the only time I can think of where an umpire should clearly act contrary to the official rules would be if necessary to counteract the actions of another umpire who was grossly out of line. For example, if the Home Plate Umpire called "strike" on the first nine pitches, all of which rolled over the plate before motionless batters, and the umpire suddenly had a heart attack and needed to be replaced, it might be appropriate for the replacement umpire, after openly consulting with both teams' managers, to announce he would call strike on the first nine pitches from the other pitcher.

The practical effect of such an announcement would be that both teams would get to play a fair eight-inning game. While the second umpire's actions would be even more clearly contrary to the rules of baseball than the first's, in fact they would achieve a result far more consistent with the rules than any other course of action. Note, however, that the second umpire should be open about what he's doing. Allowing umpires to make up for "mistakes" of other umpires without having to declare that they are doing so, or what the supposed mistakes are, would turn sports judging into a free-for-all.

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