Straight Judicial Philosophy is All That Matters

“I reserve the right not to have my views assigned to me as if I was an intellectual slave.”

Those words came from Justice Clarence Thomas.  They can be found in a 1998 piece from Jet magazine covering a speech Thomas made to the National Bar Association in which he stated that he would continue to oppose affirmative action and “make no apologies” for doing so, despite and in the face of criticism from other prominent members of the black community.

Clarence Thomas is black.  We know that.  And yet, when affirmative action has come before the United States Supreme Court, as it did in the 2003 case of Grutter v. Bollinger, he has opposed the practice each and every time.  The law is the law.  And Lady Justice, if you remember, wears that blindfold for a reason.

Elena Kagan might be gay.  Her friends don’t think so.  My inclinations say otherwise.  However, as enjoyable as it would be to see South Carolina Sen. Lindsey Graham, for example, quiz Ms. Kagan about why she hasn’t been more forthcoming about her sexuality, I simply do not care.  With affirmative action matters likely pending before the court in terms to come, I did not care whether Clarence Thomas was black or white — and even though gay rights will likely play heavily into coming dockets, I could care less about which team Elena Kagan bats for.

What I care about is her judicial philosophy.  Last I checked, Justices Ginsburg, Sotomayor and Breyer were straight as can be, but I could estimate with fair certainty how each would come down in a gay rights controversy.  Sexual orientation does not figure into it.

What I care about is that she is “not sympathetic” to the right to keep and bear arms preserved by the Second Amendment of the United States Constitution.  What I care about is her support and implementation of a measure banning military recruiters from Harvard Law School.  And while her lack of judicial experience is not necessarily a non-starter for me, what I care about is that the closest she came to wearing a robe was working for judges who were hardly constructionists.

That Elena Kagan may or may not be gay — I just simply don’t care.

It makes perfect sense, though, that the left would paint me and others like me as obsessed with Kagan’s sexual orientation.  Yet just like race doesn’t enter into my mind when it comes to enforcement of our immigration laws and the new legislation catching fire in Arizona, sexual orientation doesn’t matter with regard to the Supreme Court.  It is the left that is race-obsessed.  It is the left that is sexuality-obsessed.  But just as the press has had significant success running with misrepresentations connected with the Arizona immigration story–heck, perpetuating falsehoods seemed to sway Eric Holder–the press will likely have success convincing the ignorant among us that Republicans are the ones who have a problem with Kagan’s dating preferences.

Is it too much

I suspect that Kagan will be confirmed.  Shoot, back when the news cycles were atwitter with Sonia Sotomayor’s sentiment that “a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion” that a white, male counterpart on the bench, the aforementioned Sen. Graham noted that he was “troubled” by her overtly racist statements but would likely vote in favor of her confirmation absent some sort of “meltdown” during the confirmation process.  And if Sonia Sotomayor can make the jump from nominee to Associate Justice, with her questionable judicial temperament and her unimpressive record when it came to her Second Circuit decisions being reviewed by the Supreme Court and her mountain of evidence showing a lifelong obsession with identity politics, I see no problem for Kagan in the weeks to come.

In the meantime, however, as representatives of a group of Americans who understand and stand up for the rule of law and for the Constitution as penned by our founders, let’s make sure that our opposition is grounded in the right reasons, and that we do not fall victim to the games being played by the left.



  1. Gail B. says:

    They say “the fruit doesn’t fall far from the tree,” or something like that. The problem I have with Kagan is that Barack “The One” Obama picked her.

    Jeff, you made a good point. However, judging from what I’ve read about Kagan (seemingly volumes!) and from what you have written, Obama could have done himself proud if he had nominated you instead. We know where you stand on justice and the Constitution. We’re uncomfortable on where Kagan stands.

    Thank you for all you are doing, and may your plate be strong enough to hold your menu of To-Do items. Good luck on your exams, too.

  2. Boston Blackie says:

    I believe this whisper campaign was actually started by the left to deflect from the true issue which is that she has no paper trail due to the fact that she has no experience as a judge, lacks time as a courtroom lawyer, and has little or no judicial or litigation background. So, she is a 50 year old single woman, sometimes I wish I were too! I personally don’t care which way her gate swings, most “confirmed bachelorettes” over 35 are assumed to be gay. I think the left will use this to bully anyone speaking out against her during the hearings to back down. If you can’t be accused of being a racist the next best thing is a homophobic. (Did anyone else notice that she bats right haha).
    I think this admin will rush through her confirmation hearings before anyone can find and dig through her writings/assignments while teaching at University of Chicago Law School(there’s that Chicago connection again) or Harvard Law. Her college thesis has already been pulled down for review by Princeton exercising its copyright rights. You can certainly learn quite a bit about a professor’s leanings by their assignments. My daughter had to write a ten page report for her final on ‘how the healthcare bill will better this country’ for her Survey of Western Art class!?!
    Another reason why we can not allow Obeyme to be reelected – no more Supreme Court appointments!!!

  3. Gail B. says:

    Boston Gal–You’re a smart cookie!

    That part about your daughter makes me sick, too!

  4. John Buyon says:

    @ Jeff
    stop this pretending that conservatives love the constitution your team only likes the constitution if it suits you purposes.

    while both democrats and Republicans go against the constitution frequently
    democrats do things that are constitutionally questionable
    Republicans flagrantly disobey the constitution

    “working for judges who were hardly constructionists.”

    are you out of it?
    you like constructionists?
    is that a joke?
    a purely constitutional america would have
    NO standing army
    NO patriot act
    NO deregulated market
    NO church based prison programs

    @ Boston Black & Gail
    OOOOOH! Healthcare for the weakest most vulnerable members of our country. SCARY!
    what a bitch Obama is he wants to make sure poor people don’t get kicked out of their homes if they cant pay their bills How evil of him.

  5. Boston Blackie says:

    John Buyon-
    Put down the jug of kool-aid and read my comments again. I stated that you can learn alot about a professor’s leanings from their assignments. What the h-e-double hockey sticks does health care have to do with a Western Art class!?! I am not paying 40K a year for some bleeding heart to push their personal agenda on my kid. They should stick to what they are being paid (by my tuition payments)to teach. The best part is that she voted for the empty suit and due to this professor bowing down to him all semester, she now sees Obeyme as the fraud he really is. I guess that makes it well worth the cost of tuition!

  6. Pay up says:

    What good does it do to give EVERYBODY healthcare and pay their mortgages if you lose your country, you immature Canadian.

    The bill is coming due, and China has a very big army.

  7. Anonymous says:

    What about Scalia?

  8. Paul says:

    @John Bunyon the Troll

    Go easy, my friend. You may blow a gasket, or something else which suits your fancy. But thank you for the chuckle.

    “democrats do things that are constitutionally questionable”

    That has to be the understatement of the year. And did anyone say that some Republicans didn’t flagrantly disobey the constitution? I missed that in the article, sorry.

    Oh, and thank you for simplifying for me that bloated 2000+ page health care plan into such an easy understanding statement: healthcare for the weak, poor and vulnerable so they don’t lose their homes. Brilliant! Fortunately for these people however, bills for health services that are unpaid do not go against credit and they cannot lose their home to creditors for hospital bills. Perhaps you didn’t know that, so its understable. But your motives, even if they are misguided, are so noble.

  9. Anonymous says:

    Are Kagan and Napolitano twins?

  10. Gail B. says:

    From Rasmussen Report – May 26:

    47% Now Hold Unfavorable View

    Voters have an increasingly unfavorable opinion of Supreme Court nominee Elena Kagan but are more convinced than ever that she will be confirmed by the U.S. Senate.

    A new Rasmussen Reports national telephone survey finds that 41% of U.S. voters now hold a favorable opinion of Kagan but 47% view her unfavorably, up from 43% a week ago and 39% just after President Obama announced her nomination.

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