May 19, 2010 by John Myers
“Presidents come and go, but the Supreme Court goes on forever.” President William Howard Taft
President Barack Obama is covering all the bases when it comes to forming his Supreme Court, an institution which will leave his stamp on America long after he has left office.
Gay rights activists are quick to laud the President’s latest pick for the high court, Solicitor General Elena Kagan. The nomination of Kagan comes one year after Obama’s first selection for the court, Sonia Maria Sotomayor. Latinos loudly applauded that nomination. Gays are downright giddy over Obama’s decision to replace John Paul Stevens with Kagan.
Kevin Cathcart, Lambda Legal Defense and Education Fund’s executive director, believes Kagan holds “a strong position” in opposing the military’s ban on gays.
During her confirmation as solicitor general last year it was revealed that Kagen had tried to bar military recruiters from the campus of Harvard Law School while she was dean. Even though Kagan was part of the Clinton administration she was never a fan of Clinton’s policy of “Don’t ask, don’t tell.” It seems that this academic nominee (she has never been a judge and she has only practiced law for two years) believes that being openly gay is good, even if it impedes national security as many in the armed forces believe.
Kagan told the Judiciary Committee last year that in her view, “the exclusion of individuals from basic economic, civic, and political opportunities of our society on the basis of race, nationality, sex, religion, and sexual orientation (is injust).”
With control of 59 votes in the Senate, Democrats should be able to win confirmation. However, if all 41 Republicans vote together, they could block a vote with a filibuster.
Joe Solmonese, Human Rights Campaign president, said Kagan’s selection fulfills Obama’s promise to promote “diversity” on the court. There can be little doubt of that. Last week The Washington Post asked in a headline: “Can men still be appointed to the Supreme Court?”
If we assume that the pool of possible nominations includes equal numbers of equally qualified men and women, then the nomination of two women consecutively has a one in four chance of occurring. But the kicker for Kagan getting nominated is her close personal relationship with the President. In fact Obama introduced the former Harvard Law School dean as "my friend."
"Elena is widely regarded as one of the nation’s foremost legal minds,” Obama said. “She’s an acclaimed legal scholar with a rich understanding of Constitutional law. She is a former White House aide, with a life-long commitment to public service and a firm grasp of the nexus and boundaries between our three branches of government."
I don’t know what having a firm grasp on the nexus and boundaries means, but it sounds like something that would be bandied about at a Mensa meeting. And while I will never be invited to that group of geniuses, I am smart enough to understand that when it comes to consolidating power, Obama resembles leaders from Caesar Chavez to Fidel Castro; friends come first.
The never-married 50-year-old Kagan is not only a close friend to the President but also shares many of his ideals. Kagan clerked for one of the Supreme Court’s staunchest liberals, Thurgood Marshall, and was a research assistant for one of the greatest legal defenders of gay civil rights, Laurence Tribe. She was also a staff member on the Dukakis for President Campaign in 1988. The defeat of Dukakis set back gay rights for 20 years, but with Obama and now Kagan, another minority is set to take swift strides.
As MSNBC pointed out, “Kagan has the chance to extend Obama’s legacy for a generation.” And every bit as alarming as that is the likelihood that Kagan is a supporter of even greater executive powers.
The Court’s Lurch To The Left
In 1952 Supreme Court clerk and later Supreme Court Chief Justice William Rehnquist wrote that the Court should not strike down Jim Crow laws. Rehnquist also said that Brown v. Board of Education should not find that minorities do not have a constitutional right to the same treatment as the majority.
Rehnquist wrote: "To the argument made by Thurgood Marshall [in Brown v. Board of Education] that a majority may not deprive a minority of its Constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the Constitutional rights of the minority are."
I wonder if it was not Rehnquist’s ideas that were sound only in theory. It seems less and less that it is the majority deciding its future. Consider the immigration law passed in Arizona, SB 1070. A CBS poll showed that 60 percent of American’s don’t think the new law—which is bound to include profiling—is too extreme.
Yet our President has announced opposition. Obama held a reception at the White House on May 5—Cinco de Mayo Day—where he denounced Arizona’s new immigration law. Obama announced that he has instructed his administration, "To closely monitor the new law in Arizona, [and] to examine the civil rights and other implications that it may have."
Furthermore, U.S. Attorney General Eric Holder confirmed that the Justice Department is deliberating whether to file suit against the Arizona law, either on the grounds that it violates the Supremacy Clause or Federal civil rights laws. But during a Congressional hearing May 13, Holder admitted he had not even read the law.
It doesn’t look like Arizona will back down and, in the wake of the past 17 months in office, it appears doubtful that Obama will either.
Congressman Ted Poe (R-Texas) accuses the Obama administration of doing more to secure the borders of foreign countries than its own and called for immediate action to reverse that.
“We want the National Guard to be armed and defend themselves if necessary and to assist the border patrol and local law enforcement," said Poe.
Republican Gov. Jan Brewer—who signed the bill—has said Arizona must act because Washington had failed to stop the flow of illegal immigrants and drugs from Mexico. Arizona is home to nearly half a million illegal immigrants and is the nation’s busiest gateway for illegals and drugs.
Yet Congressman Raul Grijalva (D-Ariz.) said that Republicans are using the issue to divide the country. "We’re here to say it’s time to deal with comprehensive reform realistically and begin the process of healing this country.”
For things to work out for Grijalva, the city of Phoenix may have to live up to its name and raise the dead. According to Brian Ross of ABC News, “Phoenix, Arizona has become the kidnapping capital of America, with more incidents than any other city in the world outside Mexico City, and over 370 cases last year alone.”
In the end expect this dispute to land on the steps of the Supreme Court; a once non-partisan institution that Obama is trying to stack with minority rights activists such as Sotomayor and Kagan. While Latinos and gays may rest easy because of Obama’s choices for the Supreme Court, Americans living in Phoenix will not. That is bad news for the majority of Americans whose families built this great country.
Yours in good times and bad,
Myers’ Energy and Gold Report