The war against the Constitution

Why Kagan Is Unqualified -- and Dangerous

By Selwyn Duke

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. They then allow judicial con artists to muddy the waters with specious concepts such as the "living document," interpretations that suit the "times" and "pragmatism." They take people such as Ruth Bader Ginsburg seriously when she says the Constitution shouldn't be "stuck in time." (It's not. It's stuck in law, which can be changed through the Amendment Process.) But these are all dodges that distract us from the truth: There aren't constructionists and pragmatists, times-oriented judges and text-oriented ones, living-document ones and originalists. At the end of the day, there are only two kinds of justices:

Good justices and bad justices.

Good justices do their job and abide by the Constitution. Bad ones don't.

And Elena Kagan would be a remarkably bad justice.

Her history and words reveal this clearly. As Phyllis Schlafly recently wrote:

When Kagan was dean of Harvard Law School, she presented a guest speaker who is known as the most activist judge in the world: Judge Aharon Barak, formerly president of the Israeli Supreme Court.

... Barak has written that a judge should "make" and "create" law, assume "a role in the legislative process" and give statutes "new meaning that suits new social needs."

Barak wrote that a judge "is subject to no authority" except himself, and he "must sometimes depart the confines of his legal system and channel into it fundamental values not yet found in it" [emphasis mine].

And how does Kagan feel about this man?

She calls him her "judicial hero."

Now, such judges are often characterized as judicial activists, but that is too kind a term. They are Nullification Jurists -- and they represent a profound danger to our republic. Let's examine why.

John Stuart Mill once said, "I can hardly imagine any laws so bad, to which I would not rather be subject than to the caprice of a man." Well, you can dress the Nullification Jurist fiction up any way you want, but at the end of the day, it is nothing but subjection to the caprice of a man in a black robe.

Think about it: Jurists may say they are interpreting the Constitution to suit the times, but who determines the "times"? The people do. And what are the implications of this "times" philosophy?

First, to abide by the "times" would be to render the Constitution unnecessary, for the very purpose of a constitution is to temper the times with the timeless. That is to say, a good constitution reflects enduring truths, not alluring fashions. It embodies the "votes" of not merely those walking about today, but of all those who have lived since our republic's inception, for it exists only because the founding generation created it and subsequent ones tacitly approved it by allowing it to stand. It represents the democracy of the whole family of man -- including his ancestors.

This stabilizing factor is important because, even collectively, people are prone to fits of emotionalism -- to the caprice of men. And because a good constitution is hard to change, it forces a capricious citizenry to take a deep breath and count to ten, at which point the emotion may have subsided and cooler heads may prevail. It acts as a firewall against the mob-rule phenomenon.

Thus, to truly abide by the times would be to reduce us to what remains when you strip away both the Constitution and the legislature: a straight democracy. That is, a democracy with a little twist.

The votes are inferred by judges, who supposedly are infallible conduits of popular opinion.

This is how it could work in theory, anyway. But the reality is that most Nullification Jurists couldn't care less about the "times." Case in point: In recent years we've seen some state courts divine a right to faux marriage in their state constitutions. But since a majority in every one of those states opposes faux marriage, were the judges really interpreting their constitutions to suit the times? Sure, if it was The New York Times.

The truth is that "living document," the "times," and "pragmatism" are nothing but weasel words that facilitate rationalization and obscure Nullification Jurists' true modus operandi. What is this? Well, since they aren't abiding by the Constitution or the times, there is only one thing left: what feels right to them.

This mindset isn't unusual, as people have always found a rationale for their tyranny. For a long time, we had the Divine Right of Kings, stating that a monarch governed according to God's will and thus wasn't subject to the will of the people, or any other worldly authority, and that he could do no wrong. Relativists are even worse. A person such as Stalin, Mao, or Pol Pot deified himself, made his worldview (based on what felt right) the little god's law, and believed he was "subject to no authority except himself." Sound familiar?

It also sounds dangerous. And we should all be enraged. Remember that while government is supposed to derive its just powers from the consent of the governed, the jurists in question are doing nothing less than nullifying our votes. For they are ignoring the law, which reflects the will of the people as expressed through duly elected representatives. These judges aren't channeling democracy -- they are stealing it.

So what is the solution? Note that Nullification Jurists have signaled their contempt for the law loud and clear. And if they won't submit to the rule of law, why should we submit to the rule of lawyers? If they won't accept that the Constitution is "stuck" in law, why should we accept that the law is stuck in courts? Let me be clear: There is neither a moral nor a legal obligation to abide by the rules of the game when judicial oligarchs have brazenly said they will game the rules. Being a Nullification Jurist is a constitution-breaker, a republic-breaker, and, my fellow Americans, a deal-breaker.

The fact that an Elena Kagan could even make it to hearings is already a confirmation. It confirms that most of our leaders haven't a clue as to how a constitutional republic is supposed to work or, worse still, are content to create an oligarchy of like-minded judicial statists. It is unlawful and renders the government illegitimate, but they do it because they can. And unless we Americans wish to be subject to those who are "subject to no authority except themselves," governors and citizens should remember this: Nullification works both ways.