Wednesday, July 14, 2010

Lincoln or Kagan

Lincoln or Kagan
Tony Blankley

Abraham Lincoln: "I have never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence." Lincoln address in Independence Hall, Philadelphia, Feb. 22, 1861:

"That sentiment in the Declaration of Independence which gave liberty ... to the people of this country ... Now, my friends, can this country be saved upon that basis? ... if this country cannot be saved without giving up that principle, I was about to say I would rather be assassinated on this spot than surrender it."

Lincoln's inaugural address of March 4, 1861: "The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was 'to form a more perfect Union.' "

Elena Kagan: "To be honest with you, I don't have a view of what are natural rights independent of the Constitution, and my job as a justice will be to enforce and defend the Constitution and the laws of the United States."

Elena Kagan, June 30, 2010, in Senate testimony: "... I'm not saying I do not believe that there are rights pre-existent (to) the Constitution and the laws. But my job as a justice is to enforce the Constitution and the laws. You should not want me to act in any way on the basis of such a belief (in an inalienable right to life, liberty and the pursuit of happiness) if I had one (said on being asked if she disagreed with the Declaration of Independence's enunciation of inalienable rights)."

Justice John Marshall, Fletcher v. Peck, Supreme Court (1810): "(It is not simply) the particular provisions of the Constitution of the United States (that nullified the Georgia statute but also) those general principles which are common to our free institutions."

Apparently unbeknownst to Ms. Kagan, from the very beginning, it was the inalienable rights of the people that made the people sovereign and thus permitted the people to form the Constitution and continue to guide its application.

The very reason for the American experiment was -- and is -- to establish the principle and the reality that no man or government may alienate a person's life, liberty or pursuit of happiness.

Anyone who has experienced the expectation of the imminent loss of any of those conditions knows profoundly their value -- and thus the value of our form of government, which exists to protect those rights.

It does not take a legal scholar to know that. But it could be said that no one can rightly be called an American legal scholar who does not understand that the unalienable rights to life, liberty and the pursuit of happiness are the animating purposes of all our laws -- of the law. They are the soul of our Constitution. Without those rights, the body of law is a corpse -- a soulless, purposeless, manipulable, disposable, dead, material thing. If Ms. Kagan does not know that, then she knows nothing of our law.

Even more to the point, the right to remove those conditions from a man must always lie exclusively in the power of Him who gave them. The judge or politician who does not understand the source of those rights is ever likely to presume -- at some useful moment -- that a mere man or woman or government may act to deny such rights. Indeed, they are not rights if they are not so created -- but mere temporary grants of privilege from an all-powerful state.

We have seen in the current congressional session how indifferent our government is to even the formalities of positive law and procedure. Less than two weeks ago, the House decided to "deem" a federal budget passed -- though it has not been passed. A few months ago, it was prepared to "deem" a transforming socializing health services scheme passed without voting on it.

Our Founders, in the opening decades of our national life, built into our governing fundamentals many redundancies -- fail-safes -- to protect us from tyranny, either of the creeping or of the sudden kind. First, a Congress of the people, two branches to check each other, an executive branch itself in check with the others, and the states in sovereign balance with the federal powers. And all those powers subordinate to the undergirding sovereignty of the people.

The very power of the Supreme Court to exercise judicial review derives precisely from the court's being empowered by the pre-constitutional sovereignty of the people in their inalienable right to protect themselves from any undue state restraints on such sovereign rights (see "Empire of Liberty," Gordon S. Wood, pages 443, 448-451).

And now, proposed to be intruded into that temple of justice -- that last fail-safe of freedom -- comes the form of Elena Kagan. Cold to the passion of our Declaration of Independence. Ignorant of its animating powers. Insentient of its still-governing force. And -- thankfully -- oblivious even to her need to attempt to hide her true scorn and indifference to our founding unalienable rights.

It is a dead certainty that, if she is admitted to the high court, the day will come when she will cast aside -- carelessly, indifferently and without pause, but with a leering smile and chuckle on her lips -- our sacred birthrights as so much nuisance and interference with the government's right to direct our lives as it -- or she -- sees fit.

She must be barred from the court.

Forty-one filibustering senators can save the Republic this week. Or all 99 will surely be condemned by history for their failure to act when they had the legal power to do so.

The senators have had their warning: Side with Abraham Lincoln and the republic or with Elena Kagan. Which will it be?

Will Kagan -- and Recusal Law -- Cost Obamacare a Vote?
Terry Jeffrey

What are the odds that while serving as President Barack Obama's solicitor general, Elena Kagan never expressed her opinion about lawsuits that were filed challenging the constitutionality of Obamacare?

If Kagan did express her opinion, federal law requires the she be disqualified from those cases if she is confirmed as a justice and they come before the Supreme Court.

In a court often divided 5-4 -- and where Kagan is replacing Justice John Paul Stevens, one of the court's most reliable liberal votes -- the law in question may well cost Obama the deciding vote on the constitutionality of the most monumental piece of legislation he will ever sign.

On March 23, Obama signed his health care law forcing all Americans to buy health insurance. The same day, Florida filed suit challenging the constitutionality of the law. Many other states joined Florida in the suit. Virginia filed a constitutional challenge of its own on the same day.

Seven weeks later -- on May 10 -- Obama nominated Kagan to the Supreme Court. Was Kagan mum on the legal challenges to Obamacare all those seven weeks?

Twenty-eight U.S. Code 455 says: "(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: ... (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy."

Professor Ronald Rotunda, a legal ethics expert who teaches at the Chapman University School of Law, testified on the ramifications of this law during the Senate Judiciary Committee's confirmation hearings on Kagan. Rotunda told the committee Kagan would need to recuse herself from any case in which at any time during her tenure as solicitor general she had expressed an opinion on its merits.

Rotunda said it did not matter whether Kagan was ever formally a counsel in the case or whether she expressed her opinions in writing or only verbally.

"In short, Solicitor General Kagan should disqualify herself in all instances where participated as counsel, 'adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy,'" Rotunda told the committee in his written testimony (emphasis in original). "Her disqualification does not limit itself to cases where she is counsel of record."

"In all of these circumstances, it does not matter if her advice was oral or written, because the statute does not draw that distinction," Rotunda told the committee.

In the written answers Kagan submitted in a questionnaire returned to the Judiciary Committee before Rotunda gave his testimony, Kagan said she would comply with the "letter and spirit" of 28 U.S.C. 455.

"If confirmed, I would recuse in all matters for which I was counsel of record," she said. "I would also look to the letter and spirit of the Code of Conduct for United States Judges (although it is not formally binding on members of the Supreme Court of the United States), the Ethics Reform Act of 1989, 28 U.S.C. 455, and any other relevant prescriptions."

When she testified before the committee, Chairman Patrick Leahy, the Vermont Democrat, asked her when she would recuse herself. In response, Kagan did not cite 28 U.S.C. 455, and her answer to Leahy was somewhat narrower than her answer in the questionnaire. She would recuse herself, she indicated, from cases on which she had been the "counsel of record" and when she had "officially, formally approved something" in a case.

In written questions submitted to Kagan for the record, Sen. Jeff Sessions of Alabama, the ranking Republican on the Judiciary Committee, cited 28 U.S.C. 455 and tried to make Kagan specify in greater detail when she would recuse herself. In response to Sessions, Kagan listed 10 cases coming before the court in its next session on which she had been the "counsel of record" and would thus need to recuse herself. (These do not include the health care cases.) She also conceded she would recuse herself when she had given "advice" on a case.

"If I gave advice about the government's litigating position or the content of a filing, then I would recuse myself from the case," Kagan said in her written responses to Sessions. "In my view, this level of participation in a case would warrant recusal."

On July 13, all seven Republicans on the Senate Judiciary Committee signed a letter to Kagan insisting she answer a series of detailed questions probing whether she was ever involved in the administration's response to -- or discussed -- Florida's suit against Obamacare.

The senators informed Kagan that her answers to their questions "are essential to the Committee's process of thoroughly reviewing your record prior to making our recommendation to the full Senate on your nomination." They are also essential to letting the American people know whether or not the Supreme Court will be a rigged jury when the constitutionality of Obamacare comes up.

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