CANON 2: A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES

HotAir has a post regarding the involvement of Supreme Court Justice Elena Kagan in the writing of/defense of Obama-Care. Here is some of the work done over at Judicial Watch:

According to a January 8, 2010, email from Neal Katyal, former Deputy Solicitor General (and current Acting Solicitor General) to Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, Kagan was involved in the strategy to defend Obamacare from the very beginning:

Subject: Re: Health Care Defense:

Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues…we will bring in Elena as needed. [The “set of issues” refers to another email calling for assembling a group to figure out “how to defend against the…health care proposals that are pending.”]

On March 21, 2010, Katyal urged Kagan to attend a health care litigation meeting that was evidently organized by the Obama White House: “This is the first I’ve heard of this. I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.”

In another email exchange that took place on January 8, 2010, Katyal’s Department of Justice colleague Brian Hauck asked Katyal about putting together a group to discuss challenges to Obamacare. “Could you figure out the right person or people for that?” Hauck asked. “Absolutely right on. Let’s crush them,” Katyal responded. “I’ll speak with Elena and designate someone.”

However, following the May 10, 2010, announcement that President Obama would nominate Kagan to the U.S. Supreme Court, Katyal position changed significantly as he began to suggest that Kagan had been “walled off” from Obamacare discussions.

For example, the documents included the following May 17, 2010, exchange between Kagan, Katyal and Tracy Schmaler, a DOJ spokesperson:

Shmaler to Katyal, Subject HCR [Health Care Reform] litigation: “Has Elena been involved in any of that to the extent SG ]Solicitor General’s] office was consulted?…

Katyal to Schmaler: “No she has never been involved in any of it. I’ve run it for the office, and have never discussed the issues with her one bit.”

Katyal (forwarded to Kagan): “This is what I told Tracy about Health Care.”

Kagan to Schmaler: “This needs to be coordinated. Tracy you should not say anything about this before talking to me.”

Included among the documents is a Vaughn index, a privilege log which describes records that are being withheld in whole or in part by the Justice Department. The index provides further evidence of Kagan’s involvement in Obamacare-related discussions.

…(read more)…

HotAir puts a timeline together in regards to the above info:

Just so we’re straight on the timeline here: On March 21, the day ObamaCare was passed, Katyal is inviting Kagan to strategy sessions about the new law. On April 9, John Paul Stevens resigns and speculation erupts about Kagan succeeding him. On May 17, Katyal is suddenly telling people that Kagan’s never been involved in anything — even though she is, in fact, the solicitor general of the United States and even though he explicitly invited her to a meeting about the law less than two months earlier — and Kagan is warning people via e-mail to make sure everyone has their story straight on what she knew by “coordinating.” Is that about right? I want to make sure we’re all square on this nonsense for when the mandate challenge finally reaches the Court and we’re told by her office that everything is magically copacetic.

Elana Kagan Quotes (approvingly) Natioanal Socialist (nazi) Economist

This is an important post by Libertarian Republican. It shows how Left the Left usually is. They were the racists in the Civil War (separatists and segregationists), they were the eugenicists/Nazi’s of the 20′ through WWII, they were the people standing in front of schools not wanting black kids in the same school as their kids, and they elected a black nationalist President. So the following on Kagan should come as no surprise:

One of the longest standing and most respected conservative journals Human Events, recently uncovered some shocking information on Supreme Court nominee Elena Kagan. She repeatedly cited a 20th century European Marxist-turned-Nazi Werner Sombert in her college thesis paper…

[….]

and now…

  • Kagan and her citing of Marxist/National Socialist Werner Sombart in her college thesis paper = zero mainstream media coverage.

Here is a larger portion of the Human Events article:

…During World War I, however, Sombart endorsed Germany’s “heroic” war against the “capitalist spirit” represented by England. In 1934, Sombart published Deutscher Sozialismus, which advocated the “total ordering of life” as an expression of the German Volksgeist, or “national spirit.”

…In the introduction to her 1981 thesis, Kagan addresses a question famously asked by Sombart: Warum gibt es in den Vereinigten Staaten keinen Sozialismus? — “Why is there no socialism in the United States?”

“The Socialist Party of the United States could not lay claim to the kind of pure proletarianism that Sombart considered essential to any socialist movement; indeed, most of the party’s members did not even consider this a worthy goal,” Kagan wrote on Page 3 of the thesis. “But the American socialists ‘failure’ to build a movement that even resembled Sombart’s idealized notion of a class-conscious party . . . did not render their party any less significant. Nor did such a failure render their party any less successful. In the first two decades of the twentieth century the American socialist movement, whose very existence Sombart refused to consider, grew if not by leaps and bounds at least by inches.”

In the final pages of her thesis — To the Final Conflict: Socialism in New York City, 1900-1933 — Kagan returns to Sombart’s theories, writing: “Why, in particular, did the socialist movement never become an alternative to the nation’s established parties? In answering this question, historians have often called attention to various characteristics of American society that have militated against widespread acceptance of radical movements. These societal traits — an ethnically divided worked class, a relatively fluid class structure, an economy which allowed at least some workers to enjoy what Sombart termed ‘reefs of roast beef and apple pie,’ — prevented the early twentieth century socialists from attracting an immediate mass following. Such conditions did not, however, completely checkmate American socialism.”

Even before he embraced National Socialism, Sombart’s socialist theories reflected an anti-Semitic tendency that identified Jews with capitalism, a theme explored in his 1911 book, Die Juden und das Wirtschaftsleben (“The Jews and Economics,” which was published in a 1913 English translation titled, The Jews and Modern Capitalism). In his 1915 book Handler und Helden (“Merchants and Heroes”), Sombart praised the “heroic” German character, contrasting them with “Trading Peoples,” especially Jews, whose “commercial” habits Sombart depicted as prevailing among the English.

The influence of Sombart, who died in 1942 at age 78, was scornfully cited in Friedrich Hayek’s famous 1944 book The Road to Serfdom. In Chapter 12 of that book — “The Socialist Roots of Nazism” — Hayek said that Sombart “had done as much as any man to spread socialist ideas and anticapitalist resentment of varying shades throughout Germany.”

Hayek also mentioned this in note #13 in the first chapter of The Road to Serfdom:

Historian of the development of capitalism Werner Sombart (1863-1941) was perhaps the last of the historical school economists. Hayek would view his move from left-wing socialism toward anticapitalism of the fascist variety as exemplifying a natural tendency.

Judge Robert Bork Says Kagan Is A No-Go

IBD has an article by Phyllis Schlafly, the woman who almost single handily stopped radical feminists from great strides decades ago. Here, she makes a great point about why Kagan shouldn’t be allowed into our judicial system at such a high level:

…Now that Obama is president, he has the power to nominate Supreme Court justices who will “break free” from the Constitution and join him in “fundamentally transforming” America. That’s the essence of his choice of Elena Kagan as his second Supreme Court nominee. She never was a judge, and her paper trail is short. But it’s long enough to prove that she is a clear and present danger to the Constitution.

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.

The polar opposite of the U.S. Constitution, which states that “all legislative powers” are vested in the elected legislative body, 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.” Channel? Does he mean he channels in a trance, as Hillary Clinton supposedly channeled discourse with the long-deceased Eleanor Roosevelt?

Despite Barak’s weirdo writings, or maybe because of them, Kagan called him her “judicial hero.” Judge Robert Bork, a man careful with his words, says Kagan’s praise of Barak is “disqualifying in and of itself.” Bork said that Barak “establishes a world record for judicial hubris.” He wrote that Barak embraces a judicial philosophy that “there is no area of Israeli life that the court may not govern.”

…(read more)…

Senator Jeff Sessions (R-AL) Skeptical of Supreme Court Justice Nominee, Elena Kagan

Libertarian Republican h/t:

LR asks this:

Exit question – Does, “I’ve learned that we make progress by listening to each other across every apparent political or ideological divide…”

Substitute, ‘I do solemnly swear to faithfully and impartially discharge and perform all the duties incumbent upon me as associate justice of the Supreme Court of the United States under the Constitution and laws of the Unites States, so help me God?’

10-Times More “Conservative” Labels for Alito than “Liberal” Tags for Kagan

This is the typical bias we fight and argue against daily, which is why the conservative who cares can argue better than a liberal… the liberal doesn’t have to argue. He or she feels they have won by numbers and so they feel like they do not have to hone their arguments.

Out of the first 21 stories on the ABC, CBS and NBC morning and evening news shows after Justice Alito’s selection, correspondents conveyed ten explicit “conservative” labels during the first 36 hours of coverage. In contrast, Graham documented just one “liberal” label in 14 Kagan stories during the equivalent time period after her selection.

# ABC World News Tonight, October 31: Anchor Elizabeth Vargas: “He is said to be brilliant and A STAUNCH CONSERVATIVE.”

Reporter Terry Moran: “He quickly established a reputation on the bench as brilliant and deeply CONSERVATIVE.”

# CBS Evening News, October 31: Anchor Bob Schieffer: “Conservatives wanted a CONSERVATIVE on the Supreme Court, and said the President ought to risk a fight in the Senate to get one. Their wishes have been fulfilled.”

Correspondent John Roberts: “If confirmed, Alito would wipe out the swing seat now occupied by Sandra Day O’Connor, tilting the Supreme Court in a SOLIDLY CONSERVATIVE direction for years to come.”

# NBC Nightly News, October 31: Correspondent Pete Williams: “Alito is considered dependably CONSERVATIVE, though with an independent streak.”

Williams, later in the same story: “Perhaps because he and Justice Scalia are both Italian American, Catholic and CONSERVATIVE, he’s been nicknamed ‘Scalito.’”

# CBS’s The Early Show, November 1: Co-host Harry Smith: “A bitter partisan confirmation battle is brewing over President Bush’s Supreme Court nominee, Samuel Alito. We’ll speak with members of the Judiciary Committee and take a closer look at the CONSERVATIVE judge.”

Reporter Thalia Assuras: “Alito’s CONSERVATIVE stance would eliminate the swing vote of outgoing Justice Sandra Day O’Connor….”

# NBC’s Today, November 1: Co-host Katie Couric: “President Bush’s latest Supreme Court nominee, Samuel Alito, is known for his solid CONSERVATIVE record and a well-developed sense of humor….”

Elena Kagan, Our Next Supreme Court Justice?

Here is a quick 8-point input on Obama’s Supreme Court choice from the Corner (NRO), Elena Kagan:

It’s now being widely reported that later this morning President Obama will announce his decision to nominate Elena Kagan to the Supreme Court. Drawing on my many previous Bench Memos posts, I offer some initial comments on a Kagan nomination:

1. I have plenty of respect for Kagan’s intellect and ability, and she deserves considerable credit for her tenure as dean of Harvard law school, including for her generous treatment of conservatives, which has earned her considerable goodwill. But …

2. Kagan may well have less experience relevant to the work of being a justice than any justice in the last five decades or more. In addition to zero judicial experience, she has only a few years of real-world legal experience. Further, notwithstanding all her years in academia, she has only a scant record of legal scholarship. Kagan flunks her own “threshold” test of the minimal qualifications needed for a Supreme Court nominee.

3. There is a striking mismatch between the White House’s populist rhetoric about seeking a justice with a “keen understanding of how the law affects the daily lives of the American people” and the reality of the Kagan pick. Kagan is the consummate Obama insider, and her meteoric rise over the last 15 years—from obscure academic and Clinton White House staffer to Harvard law school dean to Supreme Court nominee—would seem to reflect what writer Christopher Caldwell describes as the “intermarriage of financial and executive branch elites [that] could only have happened in the Clinton years” and that has fostered the dominant financial-political oligarchy in America. In this regard, Kagan’s paid role as a Goldman Sachs adviser is the perfect marker of her status in the oligarchy—and of her unfathomable remoteness from ordinary Americans.

4. Kagan’s record thus manages to replicate the primary supposed defect of the judicial monastery—isolation from the real-world lives of ordinary Americans—without conferring the broader benefits of judicial experience.

5. Kagan’s exclusion of military recruiters from the Harvard law school campus promises to draw considerable attention precisely because—as Peter Beinart, the liberal former editor of the New Republic, has written—it amounted to “a statement of national estrangement,” of Kagan’s “alienating [her]self from the country.” In her fervent opposition to the Don’t Ask, Don’t Tell law and the Solomon Amendment, Kagan elevated her own ideological commitment on gay rights above what Congress, acting on the advice of military leaders, had determined best served the interests of national security. At a time of war, in the face of the grand civilizational challenge that radical Islam poses, Kagan treated military recruiters worse than she treated the high-powered law firms that were donating their expensive legal services to anti-American terrorists.

6. Kagan has argued that the Senate should carefully explore a nominee’s views on judicial philosophy generally and on hotly contested constitutional issues in particular. Her argument has special force for someone who has been so guarded about her own views. Indeed, its force is all the greater since Kagan has indulged her own ideological views in the one area, gay rights, in which she has been vocal: as law school dean, Kagan embraced an utterly implausible reading of the Solomon Amendment, and as Solicitor General, she has acted to undermine the Don’t Ask, Don’t Tell law and the Defense of Marriage Act that she is dutybound to defend.

7. Kagan shows signs of moderation on issues of presidential power and national security. But there’s no basis for hopes that she might secretly harbor conservative legal views on other matters.

8. Kagan’s records from her White House years in the Clinton administration promise to offer important insights into her legal thinking. It makes no sense to schedule her confirmation hearing until it’s clear when those records will be made available.