Kagan’s Moment in the SUNstein
As Alanis Morisett would say, “Isn’t ironic doncha think?” that every ideological liberal in Chicago is intertwined in some shape or form? Well, Elena Kagan is no different. I think we need to come up with a new 6 degrees of separation game; Kevin Bacon is getting old anyhow.
Since Sunstein may be the driving force behind many of Obama’s decisions, I could only note his views on the Supreme Court within his own essay, “The Myth of the Balanced Court,” where he contends that the so-called liberals that exist on today’s Supreme Court are not really liberal but moderate, and those who are considered to the right, are radically to the right. In Sunstein’s mind, although past liberal justices may not have acted appropriately when interpreting the constitution or legislation, they were at least liberal. Sunstein wants more liberal judges on courts to combat what he sees as a far right tendency when interpreting law. I personally feel his views are radically skewed to the left mainly due to the fact that legal circles have embraced liberalism so fully, moderate looks conservative and liberal looks moderate, and so on.
Here’s what he thinks about Constitutionalists or those he derogatorily refers to as ‘Fundamentalists’ or ‘Originalists’:
Fundamentalist constitutional theory is based on the idea that the proper approach to constitutional law is discerning and applying the intent behind the Constitution when it was ratified in 1789, the intent behind the Bill of Rights when it was ratified in 1791 or when the Fourteenth Amendment (through which much of the Bill of Rights has been applied to the states) was adopted in 1868. This approach is most often advocated by conservatives. In particular, Sunstein associates it with a movement known as the Constitution in Exile. Proponents of that view contend that decisions dating from the 1930s have erased the original intent behind the Constitution and that it’s true meaning needs to be restored.
Sunstein views the constitution as nonexistent prior to 1925 since it would leave out minorities, women and homosexuals. He states that there is no way that a female, a homosexual or a person of color could associate or understand a 200 year old document and relate it back to the ratifier’s intent. [I take offense to that narrow-mindedness].
If one intellectual admits that they are upset that positive rights were never included in the Constitution, but that only intellectuals considered positive rights a hobby/pastime to debate and ponder, why should we not believe that one of Sunstein’s colleagues and a pure intellectual with no working experience would not feel the same? The constitution as it stands is not good enough for intellectuals, in fact it is just a major hindrance.
The explanation for America’s rejection of constitution protection for positive rights that Sunstein accepts is what he refers to as the “legal realist” argument. Sunstein posits that America’s current non-recognition of positive constitutional rights results from an unfortunate twist of fate in the 1968 presidential election. According to Sunstein’s view, had Hubert Humphrey, rather than Richard Nixon, won the 1968 election, America would have a catalog of judicially created, positive constitutional rights today. However, Nixon won the election, and he was able to use his presidential appointment power to reshape the Supreme Court and, according to Sunstein, effectively eliminate any chance of the recognition of positive constitutional rights in the near future.
Sunstein supports this thesis by noting that through its so-called “new property” cases of the late 1960s, the Supreme Court came very close to interpreting some positive rights into the Constitution. The term “new property” originated in an influential law review article by the same name written by Charles Reich. Reich defines the “new property” as the “the jobs we hold, plus benefits, credentials, licenses, public welfare and all of the other kinds of valuables that come from large organizations and government” that provide the economic security that is necessary for the exercise of liberty. Reich argues that these entitlements served the same role as land and more traditional personal property- securing the liberty of the individual-and therefore should receive a similar level of protection. Sunstein sees the post-New Deal period and the “new property” movement as evidence that Americans are not as opposed to the idea of positive rights as many have assumed. The implication of Sunstein’s legal realist explanation is that “[w]ith modest shifts in the future, parts of the second bill of rights could well be included in our constitutional understandings, and certainly in the nation’s constitutive commitments.”
Cass Sunstein believes his nudge principle applies not only in regulatory affairs, but also in law. He feels that a court could gradually become liberal by nudging decisions leftwards every so often.
Elena Kagan, may not have specifically written in terms of nudging or minimalism as Cass Sunstein describes in his book “Radicals in Robes,” but she holds the same type of liberal ideals as Sunstein and Obama. Sunstein wrote in an article on The New Republic, of which he co-edits, that Obama is a visionary minimalist.
Barack Obama is widely regarded as a visionary because of his emphasis on “change” and his soaring rhetoric, but he also has strong minimalist tendencies. In his victory speech in Iowa, Obama went out of his way to say that it is time for a president who will “listen to” those who disagree, and also “learn from” them. In The Audacity of Hope, he asks for a politics that accepts “the possibility that the other side might sometimes have a point.” In a crucial passage, he refers to “the middle-aged feminist who still mourns her abortion, and the Christian woman who paid for her teenager’s abortion.” In this way, he suggests that across one of the nation’s least tractable divides, Americans have far more in common than we tend to think.
Like all minimalists, Obama believes that real change usually requires consensus, learning, and accommodation–a belief directly reflected in many of his policies.
I don’t believe for a second what Cass Sunstein mentions above, but I do believe that what is happening behind the scenes is the gradual transformation of the United States into the “Utopia” that is envisioned by liberals. The Saul Alinsky tactics, conform to become “The Man” and enact change, and tear down traditional institutions is reminiscent of Gramsci Marxism which proposes the same route for transformation.
Elena Kagan believes in more executive powers in the government. She prefers that the executive branch regulate more than the legislative. This view would fit perfectly with both Obama and Sunstein, who believe in legislating morals, ethics, and human nature. They think that perfection (in their minds) can be regulated and the government can oversee it. Elena Kagan would fit perfectly into this mold and she would be incredibly malleable seeing as how she has had no prior judicial experience.
Both Kagan and Sunstein also lament the fact that more liberalism doesn’t exist or that socialism has failed to be implemented.
“In our own times, a coherent socialist movement is nowhere to be found in the United States. Americans are more likely to speak of a golden past than of a golden future, of capitalism’s glories than of socialism’s greatness,” wrote Kagan, Obama’s solicitor general.
“Why, in a society by no means perfect, has a radical party never attained the status of a major political force? Why, in particular, did the socialist movement never become an alternative to the nation’s established parties?” she asked.
“Through its own internal feuding, then, the SP [Socialist Party] exhausted itself forever and further reduced labor radicalism in New York to the position of marginality and insignificance from which it has never recovered.
“The story is a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America,” she wrote. “Radicals have often succumbed to the devastating bane of sectarianism; it is easier, after all, to fight one’s fellows than it is to battle an entrenched and powerful foe. Yet if the history of Local New York shows anything, it is that American radicals cannot afford to become their own worst enemies. In unity lies their only hope.”
Kagan brought Sunstein over to Harvard Law from Chicago in 2007 and in so doing had the following to say about him:
Introducing Sunstein before the talk, Dean Elena Kagan ’86 described him as “the world’s pre-eminent legal scholar,” one who “challenges our assumptions and changes the way we think about legal issues.” Suggesting that Frankfurter was a forebearer of what she called “Sunsteinian Minimalism,” Kagan noted that the Justice, who was sometimes accused of being too leftist, brought to the Supreme Court a strong belief in judicial restraint. “He believed more in the institutions of democracy than in the courts,” said Kagan. “He also insisted … on respect for Federalism, for the decisions of state governments.”
“Cass Sunstein is the preeminent legal scholar of our time, the most wide-ranging, the most prolific, the most cited, and the most influential,” Elena Kagan, dean of the Harvard Law School, said in a statement released yesterday.
“His work in any one of the fields he pursues – administrative law and policy, constitutional law and theory, behavioral economics and law, environmental law, to name a nonexhaustive few – would put him in the very front ranks of legal scholars,” Kagan said.
It would appear as if somebody had an idol, and how else would one better flatter their idol by exemplifying him?
America doesn’t need political ideologues on the Supreme Court, but rather those who interpret the law and are independent thinkers that have the experience and knowledge to back it up–Just being a legal wonk, a dean, connected to Democrats, Larry Summers, and Goldman Sachs isn’t enough.
How Does Supreme Court Decision Serve The People?
The recent Supreme Court decision to allow corporations unlimited spending on political ads was the right decision in the case. It is not something we should be cheering for in the larger sense of what it means for American politics.
One good thing about this decision is that it levels the playing field by granting corporations the same advantages Unions and other organizations have when it comes to political campaigns and support of candidates. Another positive twist is that the level of awareness and debate could increase significantly; specifically by exposing a segment of the population who would otherwise be ill-informed in general about politics because what they know is only what they see in TV advertisements in their respective markets.
But this case is an isolated one, which does not address the real problem…the fact that too much money in politics not only adds to corruption but also makes it virtually impossible for the average citizen to campaign and compete in elections.
Many people on the right argue that this is about the First Amendment right to free speech. I don’t agree with that. The corporation is not an individual that can participate in rights. For example, does a corporation (remember it’s a piece of paper) have the right to keep and bear arms? How about the right to a speedy trial, why would it need that if it is never put in a jail cell? How about the right to the pursuit of happiness? Is a piece of paper capable of being happy or sad?
We have structures in place to allow individuals of a political opinion or ideology to band together and fund the propagation of their ideas. That is a healthy way of getting the opinion of the people into the public view. But I doubt very seriously that Nike will be concerned with individual tax rates if they can find a politician who will grant them special privileges for their business.
I think most Americans would agree that special interests, corporations and lobbyists already have way too much influence over politics and the legislative process. The Court’s decision opens the floodgates for corporations to increase their influence without limits. How does that serve the people? How does that help the people make their voices heard? Will this ratchet up the polarization of debate, further fueling the divisions in the electorate?
Insurance companies are corporations. How on earth will letting them spend freely on politics increase competition in the marketplace allowing us to negotiate lower prices and policies that fit our lifestyles and budgets. What about multinational corporations, which have no allegiance to America but will now have the opportunity to influence our political process through unlimited funding to promote ideologies that serve their particular interests? Think about the potential hazards this could lead to…special interests on steroids. Corporations will be able to fund the people who are friendly to them regardless of what it means to this society and our freedom.
The case I would like the Supreme Court to decide is if the current campaign finance laws are constitutional and actually serve the people. I would argue that we need significant limits on campaign financing activities. We should have a system that encourages average individuals to serve in public office. Today we have a system that encourages wealthy lawyers who can rarely avoid scandal as their power and influence is auctioned to the highest bidder(s).
In short, the money should be funneled through individuals, have low limits and be tax-free. Corporate profits should be directed to equity growth, dividends and R&D; allowing individual investors the opportunity to participate in the wealth generating machine that corporations are capable of being.
Sonia, Sonia, Sonia… You Have Lotsa Splainin’ To Do
Sonia Sotomayor has another interesting court case that involved a teen blogger, a reputation as a bully among her peers, declaring the 2nd amendment is not a constitutional right, and after posting yesterday about La Raza, (in which I made no mention of a connection), we find out that she is in fact a member. La Raza in Spanish means The Race. The very essence of the group is racist.
The teen blogger case is very disturbing, mainly because it was a high school student who was denied the opportunity to run as class president because of a statement she made on the Internet about her teachers and the school administration calling them D* bags. What child doesn’t say nasty things from time to time when they get emotional or upset? Sotomayor’s ruling stated that the female student, who used the term after the school’s battle of the bands was canceled by faculty, would cause a possible disruption, and therefore was unable to run – hello?? Basic 1st amendment? It’s not like she yelled fire in a crowded movie theatre – we are talking about an angry Internet post of a term that is commonly used nowadays when people are upset. Being from Connecticut myself, I’m surprised I didn’t already know about this woman, granted she did not preside over my jurisdiction/county.
Sonia Sotomayor’s peers and co-workers have also made statements after her nomination claiming that she is a bully and quite abrasive in the work environment. Compared to other court justices on both sides of the aisle, most are very well respected and amiable. It’s important in any working environment to feel comfortable and not harassed – it would be very upsetting to learn that she tried to pressure or bully other SCOTUS members in the future, to make a decision to her liking.
Sonia has also ruled that the 2nd amendment was not a constitutional right in the past. I’m not sure why it would be an amendment in the constitution, and the 2nd one at that, if it wasn’t constitutional, but what do I know? It’s also my understanding that our constitution was established based on Jefferson’s Federalist Papers? Federalism did reign supreme in those days and that meant more state power…?
Supreme Court nominee Sonia Sotomayorruled in January 2009 that states do not have to obey the Second Amendment’s commandment that the right to keep and bear arms shall not be infringed.
In Maloney v. Cuomo, Sotomayor signed an opinion of the U.S. Court of Appeals for the Second Circuit that said the Second Amendment does not protect individuals from having their right to keep and bear arms restricted by state governments.
The opinion said that the Second Amendment only restricted the federal government from infringing on an individual’s right to keep and bear arms. As justification for this position, the opinion cited the 1886 Supreme Court case of Presser v. Illinois.
“It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right,” said the opinion. Quoting Presser, the court said, “it is a limitation only upon the power of Congress and the national government, and not upon that of the state.”
The final and most extreme issue coming to the forefront is her association with the radically liberal La Raza. I posted yesterday on other details about the SCOTUS nomination and in so doing, also mentioned the organization and provided a link with facts.
There are many immigrant groups joined in the overall “La Raza” movement. The most prominent and mainstream organization is the National Council de La Raza — the Council of “The Race”.
To most of the mainstream media, most members of Congress, and even many of their own members, the National Council of La Raza is no more than a Hispanic Rotary Club.
But the National Council of La Raza succeeded in raking in over $15.2 million in federal grants last year alone, of which $7.9 million was in U.S. Department of Education grants for Charter Schools, and undisclosed amounts were for get-out-the-vote efforts supporting La Raza political positions.
The Council of La Raza succeeded in having itself added to congressional hearings by Republican House and Senate leaders. And an anonymous senator even gave the Council of La Raza an extra $4 million in earmarked taxpayer money, supposedly for “housing reform,” while La Raza continues to lobby the Senate for virtual open borders and amnesty for illegal aliens.
La Raza lies the real agenda of the La Raza movement, the agenda that led to those thousands of illegal immigrants in the streets of American cities, waving Mexican flags, brazenly defying our laws, and demanding concessions.
Key among the secondary organizations is the radical racist group Movimiento Estudiantil Chicano de Aztlan, or Chicano Student Movement of Aztlan (MEChA), one of the most anti-American groups in the country, which has permeated U.S. campuses since the 1960s, and continues its push to carve a racist nation out of the American West.
Eeeegads we better watch it here!
More About Sotomayor (So-Toe-My-Or)
Conservatives are discovering more details on Sotomayor as the days tick on. She is quite an accomplished woman and had been on the fast track to becoming a leading national judge (at least by the pace at which she was moving up the ranks). However, she already had various critics back in 1997 like Rush Limbaugh who saw her coming a mile away and knew she could one day be nominated for SCOTUS. Limbaugh, in 1997, warned listeners that this woman was extremely progressive and liberal in her judgments and leanings.
The president of the National Organization of Women (NOW) has even made an official statement that Sonia is in fact “very progressive.”
The Republicans in the senate are focusing on Sotomayor’s speech that she gave at the University of California, Berkeley (School of Law) back in 2001. Her lecture at Berkeley was published in La Raza Journal, which made a blatant racist remark when comparing one race over another as to which of those races would make better decisions. 29 Republicans in 1998, when Sotomayor was nominated for the 2nd Circuit Court of Appeals, voted against her for this very reason, as well as her tendency to legislate and be an activist from the bench.
For a little more information on the extremism of La Raza go here.
Newt Gingrich has been on the attack with this one nomination and it is something he apparently feels very strongly about – it may have to do with the history of the 2nd Circuit Court of Appeals when she was nominated back in 1998 while Newt was still Speaker of the House. Newt has called Sonia Sotomayor an outright racist and has asked for her to withdraw her name from the SCOTUS nod.
I personally think that when it comes to measuring somebody’s merit and ability – personal feelings aside, what really matters is their record - and this final detail that has come to fruition is incredibly important. Her opinions have a 60% reversal rate…
Three of the five majority opinions written by Judge Sotomayor for the 2nd Circuit Court of Appeals and reviewed by the Supreme Court were reversed, providing a potent line of attack raised by opponents Tuesday after President Obama announced he will nominate the 54-year-old Hispanic woman to the high court.
“Her high reversal rate alone should be enough for us to pause and take a good look at her record. Frankly, it is the Senates duty to do so,” said Wendy Wright, president of Concerned Women for America.
The most frustrating aspect of this entire nomination is the media playing it up to be the first ever Hispanic nominated to the Supreme Court – which just isn’t true. We could go back in history and technically find that Cardozo per the article yesterday, was the first, but even if that is questionable there is Miguel Estrada, who was nominated by a Republican and was a Conservative. Democrats did not care about his remarkable history, growing up in Honduras and legally immigrating to the United States without being able to speak English and breaking through barriers to go to Columbia University and then onto Harvard Law School. The Democrats demoralized this man because he was a Conservative and didn’t fit the Conservative mold – he had to be destroyed – the same thing happened to Clarence Thomas – another from humble beginnings, who was a black man and a Conservative. We could go back through time, but why? We had an example of this very thing with the past election; Sarah Palin. A female who came from the lower middle class, if that, who had to pay her way through college, lived in a state that truly is the last frontier, and still isn’t all that developed, worked her way up politically by working hard and never giving up. But to liberals, a Female, a Black, and a Hispanic should only be democrats, not republicans – those who go against the mold need to be destroyed before anyone else; they are the biggest threats. The liberals want to make this nomination into this historically wonderful thing, bamboozling the dumbed down masses, attempting to brainwash them into thinking that Sonia truly is the first of her kind to be nominated, when that is an out and out lie. Ann Coulter talks about this in greater detail on Good Morning America.
