KICK KAGAN TO THE CURB
Elena Kagan clerked under Supreme Court Justice Thurgood Marshall.
But apparently she didn’t learn very much.
And as a consequence she should not be confirmed to the Supreme Court herself.
This is not about partisanship, it is about principle. It is not because she is a liberal, it is because she is not true to the court and its rulings.
Much ado was made about her appearance last week before the Senate Judiciary Committee. We saw all sorts of pictures on the evening news of her making funny faces, and vacuous reporters weighed in on how she had handled the senators’ questions.
The conventional wisdom was that as long as she didn’t say anything stupid, she would sail to confirmation. The assumption was that the senators would be exacting in their questioning of her.
But they weren’t.
And though she didn’t say anything stupid, she did freely admit to doing something stupid.
Unfortunately, none of the senators properly understood what she had done and called her on it.
At the root of her disqualification was the policy she oversaw at Harvard law school that prevented military recruiters from using the on-campus counseling offices.
Much has been rightly made of the fact that this is patently disrespectful to the American military and the noble men and women who serve in it. For most of us, that is disqualification enough. If you don’t respect those who defend our country, you shouldn’t sit on the highest court in our country.
Period.
But liberals don’t see it that way in the Age of Obama and Kagan’s discrimination against our military was dismissed as meaningless and, astoundingly, principled.
But pressed to explain herself by Republicans, she countered that she had merely asked the military to recruit on campus in a different way. Instead of using the counseling offices, like all other recruiters on campus, she allowed the Harvard veterans group to make appointments with students for the recruiters and to hold those appointments elsewhere on campus than the counseling center.
She even offered that during her tenure the number of recruits held steady with averages from previous years.
Military recruiters weren’t banned, they were merely accommodated separately, with equal outcome.
She said these things smugly, and the vacuous people on the evening news judged her the victor and declared the matter closed.
The senators seemed to agree. The Democrats with gloating smiles and the Republicans with frustrated frowns.
But they were all mistaken. Had any of them been thinking, they would have realized that this argument from Kagan was the second nail in her judicial coffin.
Here’s how I figure.
Who did she say her mentor was?
Thurgood Marshall.
And what was Thurgood Marshall known for?
Being the first black on the Supreme Court.
What else?
Being the legal director of the NAACP.
As the legal director of the NAACP, what was the biggest case he argued?
Brown versus the Board of Education.
And what Thurgood Marshall argument in Brown versus the Board of Education did the Supreme Court unanimously accept?
The concept that separate is inherently unequal.
See where I’m going with this?
In Topeka, Kansas, they had racially segregated schools – as they did in several other parts of the country. Black kids went to one school and white kids went to another school.
In Topeka, about the same amount of money was spent on each student in each school, and the educational outcome for black and white students was pretty much the same. Defenders of the Topeka segregation said that it wasn’t actual discrimination because nobody got shorted.
The black kids didn’t go to bad schools, and they didn’t go to poor schools, they just went to black schools. The schools, defenders argued, were equally funded and had equal outcomes.
And that, they argued, was not discriminatory.
Thurgood Marshall disagreed.
He was right.
And everyone on the Supreme Court agreed with him.
Which gets back to Elena Kagan.
She clerked on the Supreme Court for the man who created the legal doctrine that separate is inherently unequal – that it doesn’t matter that the accommodations are identical or identically funded, or that the outcome is favorable, it only matters that the accommodations are separate. That, unavoidably, means they are not equal and therefore they, unavoidably, violate our constitutional belief in equality and equal protection under law.
And yet, at Harvard law school, where she ruled as a disciple of Thurgood Marshall, she completely rejected the principle of Brown versus the Board of Education. She created a separate recruiting system for members of the military, and defended it last week with exactly the same arguments the defenders of racial segregation used in Topeka – that it was equally funded and that it had equal outcome.
They were wrong, and so was she.
For a constitutional expert, it was surprising that this error never occurred to her. For a panel of senators to be oblivious to the same point is likewise disappointing.
But so it is.
In her testimony we learned that she not only disrespects our military, she doesn’t even respect the court she wants to join.
Because what good are Supreme Court rulings if they are not understood and applied?
She might have studied under Thurgood Marshall.
But she didn’t learn much.
- by Bob Lonsberry © 2010
