Libertarians Respond to the Elena Kagan Nomination

Ilya Shapiro: "Kagan is certainly not the worst possible nominee from among those in the potential pool."

Roger Pilon: Does Elena Kagan support limited government?

Ilya Somin on Kagan and the Harvard ban on military recruiters.

Walter Olson: "Assuming Kagan coasts to an easy confirmation, she'll join a liberal caucus on the Court that more than ever resembles a faculty meeting."

David Bernstein: "There is no evidence that she has any ideological sympathy for the 'right.'"

And you can read Reason's coverage of Elena Kagan right here.

Comments

[?]

All you need to know is this:

"Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs."

?Supreme Court nominee Bob Costas

[Andrew]

You mean supreme court nominee Patton Oswalt?

[Wes Soloman]

OK cool, when will they respond to her ugliness?

http://www.anonymous-posting.us.tc

[Wood Jones]

LOL, OK so when will they respond to her ugliness??

Lou
http://www.online-anonymity.tk

[Brian E]

I'm starting to think there's an actual human behind you after all, Lou.

[Groovus Maximus]

OUCH! That hurt me Anon Bot! The singularity is nigh people!

[Atanarjuat]

Who's uglier, Kagan, or Sotomayor?

[OO=====D]

Kagen, hands down.

[Mike M.]

Kagan makes Sotomayor look like Heidi Montag.

[Chuck]

Heidi Montag back when she was hot, or Heidi Montag the low-rent Real Doll?

[The People]

We like this version:

http://www.celebritymood.com/w.....-Pratt.jpg

[Clarence Heffner]

Elena, lose the weight and you'll be great!

[PapayaSF]

I'm afraid that then she'd just look like a thin Jon Lovitz in drag.

[a rye]

Who's uglier, Kagan, or Sotomayor?

Or, equivalently, Kevin James or Hugo Chavez?

[nobody]

And this is coming from a guy called Wood.

[Brian E]

Democratic nominees have been equally bad as Republican ones on critical topics such as 4th Amendment issues for good reason. They have no incentive to support a limiting interpretation of the Constitution in these areas. Any liberty-friendly jurisprudence these judges produce is accidental and an outcome of results-oriented thinking.

I have no idea how we ended up with Thomas on the court, but he is almost certainly the last of his kind.

[Jersey Patriot]

You mean Thomas, the guy who said it was okay to strip search a teenage girl in school because they thought she might have aspirin? Yeah, beacon of liberty there.

[Gabe]

+1

[WTF]

No shit. Man, was that case disappointing all around.

[Brian E]

Did you read his dissent? He didn't think it was OK, but he couldn't find a constitutional ground for prohibiting the search either. Personally, I disagree with his conclusion; starting from his premise, it's still clearly a 4th amendment search, but it would be the parents' rights that were violated.

That said one case does not a pattern of jurisprudence make, and Thomas has been by far the least deferential to government claims that clearly stretch the wording of the Constitution.

[CrackertyAssCracker]

Ya I though he had least had an argument that made some sense on it's face. Thomas ain't one of "us", but he is certainly closer than anybody else. That could fill you with hope or despair, depending on how you want to look at it.

[Brett L]

Children aren't legally people. They are wards and don't have the rights or duties of a legal person. Same with people found legally incompetent. The First and Second Amendment may not apply to them also. I'm not in a rush to allow 12 year olds CCW permits either -- which would be unconstitutionally discriminatory in most "shall issue" states which require permit holders to be legal adults.

[Brian E]

That's where I think Thomas goes wrong. If children don't have that right, it doesn't go "poof"; rather, it's vested in their wards. A parent doesn't lose her right to be secure against unreasonable searches just because she has a child in the car with her, or because she asked the child to carry something in her backpack. An unreasonable search of said backpack would not violate the child's rights, but it would violate the parent's rights.

The same goes for first and second amendment rights. A child speaking or discharging a firearm is not exercising his or her own rights, but rather the parents' rights, which is why the parents may curtail their children's exercise of those rights, but the government may not in my opinion.

[PapayaSF]

Compared to Ruth Bader Ginsburg and a number of others, Thomas is Murray Friggin' Rothbard.

[Doc Merlin]

And another clueless person responds.

[Xeones]

Damn, anonymity bot.

[Episiarch]

Pretty good, right? I programmed him well. Shit, I shouldn't have said anything.

[The Libertarian Guy]

Obama made this pick, so there's something in it for him and his side of the aisle... and it's probably not good for the rest of America, in the long run.

[Brett L]

[$CURRENT_PRESIDENT] "made this pick, so there's something in it for him and his side of the aisle... and it's probably not good for the rest of America, in the long run."

...To be more accurate

[Aresen]

OK, if Kagan doesn't give you apoplexy, try this:

There will probably be a Democratic President elected sometime between 2016 and 2028. 3-2 odds that said president nominates Barry O to the Supreme Court.

[Mr. FIFY]

Yikes!

[Groovus Maximus]

DEATH TO CANADIANS! (Except Dagny T.)

Seriously though, I have some mints for you Aresen, if they make you sleepy, just take a few more....

[Episiarch]

That's very collectivist, doc. There's no reason we can't beat Aresen to death on an individual level for that.

[Groovus Maximus]

As long as I get a cash billing and no witnesses. I have a license, you know.

[Episiarch]

A license to ill?

[Groovus Maximus]

In more ways than one, Epi-siotomy.

[Aresen]

I don't nominate people to the US Supreme Court*, I am merely placing a bet that Barry O will be nominated.

*(HMMM. The Aresen court: Napolitano, Balko, Postrel, The Jacket, Paul, Flake, ...)

[Groovus Maximus]

I read that correctly, Aresen. Nothing wrong with a wager I suppose. Just the idea...(shudder). I don't suppose you have a prospectus for your hedge fund of this wager?

And Matt Welch for Chief Justice of the Aresen court.

[Brian E]

Can we put Kozinski on the court too?

[The Gobbler]

What??? No Suderman???

[CaptainSmartass]

I just threw up in my mouth a little bit.

[WTF]

There will probably be a Democratic President elected sometime between 2016 and 2028. 3-2 odds that said president nominates Barry O to the Supreme Court.

Fuckin' a. I just had my lunch. Now I'm trying to keep it down, so do you mind?

[PapayaSF]

Ahahaha! That's about as likely as a Jimmy Carter nomination.

[Aresen]

He's got a law doctorate from Harvard, that seems to be the prime qualification.

[Tim]

She's no Harriet Miers, that's for sure.

[Tim]

I meant that ironically.

[Gabe]

She is in cahoots with enemy of the first amendment cosmotarian Cass Sunstein. She is a former Goldman Sach employee, she wants to ban conspiracy theories, she hates free speech, I see where this is going.

[Editor]

Hyphens, Gabe, hyphens!

[WTF]

Actually, semicolons.

[Editors]

Semicolons aren't going to fix "in cahoots with enemy of the first amendment cosmotarian Cass Sunstein."

[Tapeworm]

If she is -- as many claim -- a closeted homosexual, then given that there is a good chance that there will be cases regarding gay marriage brought befor the court, shouldn't she be questioned about her sexual orientation?

[Joe_D]

Is she closeted like a fag-hating gay preacher? I can see that mattering - those people are fucking dicks!

[CrackertyAssCracker]

Why would anybody claim she is closeted? Fuckin look at her!

[Gabe]

I thought there was one bright spot about her record: she banned the military recruiters, I thought she was trying to protect the student at Harvard from a scam, but then I find out it is just because she is mad that not enough gays were gonna be used as cannon fodder!

[Michael Ejercito]

I thought there was one bright spot about her record: she banned the military recruiters, I thought she was trying to protect the student at Harvard from a scam, but then I find out it is just because she is mad that not enough gays were gonna be used as cannon fodder!

I want to understand the ban on gays.

Is it a ban on people who are gay, or people who have been proven to have engaged in sodomy?

[Tony]

It's a ban on being openly gay, which until recently meant whether you outed yourself or someone else did.

[Michael Ejercito]

It's a ban on being openly gay, which until recently meant whether you outed yourself or someone else did.

I can understand a ban on servicepersons engaging in sodomy, an act viewed as abhorrent and detestable.

But "gay" is a condition , not an action.

[Gabe]

Carpet munching and sodomy are fine...just can't say the words "I am Gay." Pig latin is fine.

[The Gobbler]

As someone used to say around here -- It's not gay if under way.

[Doc Merlin]

Actually sodomy is illegal for military people to engage in.

[Max]

Shapiro hit the nail on the head. The worst possible nominee would be some brain-dead adherent of a simplistic market-worshiping cult.

[Mr. FIFY]

The best possible nominee would be some brain-dead adherent of a simplistic tax-and-spend cult.

That'll be ten bucks, Max. Seriously, just type what you're really thinking.

[Max]

Free Market Brownies

Ingredients:

1 pkg (440 g) Betty Crocker* Chocolate Chunk Supreme Brownies Mix
1/4 cup (50 mL) butter or margarine, melted
3 tbsp (45 mL) orange juice
2 tbsp (25 mL) packed brown sugar
1 1/2 cups (375 mL) pineapple chunks (about 1-inch/2.5 cm in size)
1 1/2 cups (375 mL) mango chunks (about 1-inch/2.5 cm in size)
1 1/2 cups (375 mL) banana slices (about 1-inch/2.5 cm in size)
1 cup (250 mL) caramel topping

Method:

?Heat oven to 350?F (180?C) for shiny metal pan or 325?F (160?C) for dark or non-stick baking pan. Make and cool brownie mix as directed on package directions. Cut brownies into 6 rectangular pieces. Cut each piece diagonally in half.
?Heat coals or gas grill for direct heat. Mix butter, orange juice and brown sugar in small bowl.
?Thread pineapple, mango, and banana pieces alternately on each of twelve 10-inch (25 cm) skewers, leaving space between each piece. Brush fruit with butter mixture. Grill fruit uncovered on medium low heat 10 to 15 minutes, turning frequently and brushing with butter mixture, until fruit is lightly browned.
?To serve, arrange 2 brownie triangles on each plate. Remove fruit from skewers and arrange around and over brownies. Drizzle with caramel topping.

[Joshua]

She's just another statist. I'm amused by the dems saying she's the wrong kind of statist.

[Tman]

I'm kinda surprised that this is the best they could come up with. She has zero judicial experience, doesn't seem to have worked too much in the courts themselves (although did clerk for someone) and appears as though she went from Harvard student to tenured professor to dean.

For example, here's Justice Thomas resume- Thomas grew up in Georgia and was educated at the College of the Holy Cross and at Yale Law School. In 1974, he was appointed an Assistant Attorney General in Missouri and subsequently practiced law there in the private sector. In 1979, he became a legislative assistant to Missouri Senator John Danforth and in 1981 was appointed Assistant Secretary for Civil Rights at the U.S. Department of Education. In 1982, President Ronald Reagan appointed Thomas Chairman of the Equal Employment Opportunity Commission (EEOC) and he served in that position until 1990, when President George H. W. Bush nominated him for a seat on the United States Court of Appeals for the District of Columbia Circuit.

Even Sotomayor was Assistant DA in New York before getting nominated, and she wasn't exactly a heavyweight by SCOTUS standards.

For a guy who taught consitutional law, Obama sure has come up with some WEAK ass SCOTUS picks.

[PapayaSF]

You don't need to know anything about judging or constitutional law to come down on the "correct" and "progressive" side of a case. In fact, it's easier to do so if you know nothing about judging or constitutional law.

[R C Dean]

Another potential roadblock: recusals.

At a a minimum, judge should be recused from any case in which they have advised a party. They could well mean that Kagan should be excused from at least some of the pending hot-button cases involving the Obama administration - terrorist detainee cases, health care reform, etc.

More expansively, you can argue that a judge should be excused from any case involving a former client. Under this rule, Kagan would be hard-pressed to sit on any cases involving the Obama administration.

[Nancy Pelosi]

Are you serious?

[questioning (but not THAT way)]

Do justices recuse themselves or are they recused by others somehow?

If Kagan is of low enough character, she may simply refuse to recuse. Never underestimate the scumbaggedness of the left.

[Aresen]

Judges recuse themselves. I don't believe they can be forced to do so.

[WTF]

A party can petition for a judge's disqualification, based on actual bias. It is a matter of due process. If the judge refuses to step down, the party typically can appeal to a higher court for mandamus. I don't know the rule for SCOTUS, but the justices tend to err on the side of being overcautious and recuse themselvese whenever there is an appearance of impropriety for them to sit on the case. On many other adjudicative bodies, when a party petitions for a judge's disqualification, the other members of the board or panel make the decision. Don't know if that's how SCOTUS would do it if someone asked for a justice to recuse himself or herself.

[Chuck]

Canon 3(C)(1)(e) of the Code of Conduct for United States Judges covers this. (By its terms, it applies only to judges on lower federal courts, not the Supreme Court, but there's no reason they'd deviate from it that I can think of.)

Under the Code, a judge must recuse himself if "the judge has served in governmental employment and in that capacity participated as a judge (in a previous judicial position), counsel, advisor, or material witness concerning the proceeding."

This is both broader and narrower than the standard you suggest -- broader, because it makes clear that the US government is the "client," not the Obama administration (it would be odd if Kagan could hear cases dating from Bush II, but not cases dating from Clinton or Obama), and narrower, because it requires recusal only from the truly problematic cases, i.e., those she worked on herself. (This is essentially the same standard applying to judges coming from private practice -- doesn't matter if the appellant used to be your client, it only matters if you represented the appellant in this matter.)

[Syd Henderson]

This is ridiculous. Other justices haven't been held to that standard, and there's no reason Kagan should either.

[Jay]

I first saw Kagan's picture in an article. The article claimed Kagan is a female. Upon taking a second glance at the picture I was convinced that the writer made a typo and meant "he".

I guess if you recruit the future POTUS to your faculty your reward is a Supreme Court seat. Cronyism is alive and well under the Obama Messiah!

[Seer]

I am sick of these Harvard assholes. Can we please get some assholes out of the Midwest?

[Harvard Admissions]

That's where a lot of Harvard assholes start out!

[Seering]

Harvard trolls the Midwest for all of its Jews and Catholics.

[BakedPenguin]

I first saw Kagan's picture in an article. The article claimed Kagan is a female.

Really? I thought she was Rosie O'Donnell's younger brother.

[Jennifer]

In Pottawatomie vs. McGhee Kagan argued that prosecutors who invent evidence to convict innocent men should not be penalized for it. That's all I need to know about her. Fuck you, Kagan, for making a mockery of the very word "justice," and fuck you, Obama, for using words like "integrity" to describe this creature, and doublefuck you, Obama, for nominating this creature to the Supreme Court.

[Jennifer]

With a pine cone. Dipped in the blood of an AIDS patient.

[Groovus Maximus]

I would suggest an overdose of Tylenol instead, Jennifer, with the antidote (acetylcystine) in a box with one way blades and placed a little higher than her head, a la Saw III. I have the distinct feeling she would enjoy your form of torture way too much and she is probably immune to the AIDS virus by proxy of sheer evil.

Google "APAP overdose": it's faster than an AIDS death, but after the window that the antidote can be administered expires, it is a very unpleasant way to die.

[kinnath]

In Pottawatomie vs. McGhee Kagan argued that prosecutors who invent evidence to convict innocent men should not be penalized for it.

She argued her CLIENT'S position.

That alone is not an indication that she believed her clients position.

That's why only being an advocate and not a judge makes it so fucking difficult to understand her mindset.

[Jennifer]

As someone who never believed "I was just doing my job" is a justification for evil behavior, I don't give a shit. This creature has argued that perjury is only a crime if ordinary citizens do it, but if prosecutors perjure themselves that's just fine. So what if she was just following orders? I repeat: fuck you Elena Kagan, and fuck you Barack Obama for nominating Elena Kagan.

[kinnath]

She argued on behalf of the administration for positions that we find repulsive. If you want to claim guilt by association, go for it. I won't complain.

But I was pointing out that what an advocate says in court is vastly different than what a judge says in a ruling.

[Jennifer]

If she didn't truly believe it but argued the position anyway in exchange for a nice salary and bennies, that makes her even worse. Obama should not have praised her for her "integrity," but for being such an utterly excellent whore.

Though saying that insults whores -- I've never heard of innocent men rotting in prison for crimes they didn't commit because of some whore plying her wares. But innocent men rotting in prison because of Elena Kagan -- yeah, I know of a couple there.

[Barack Obama]

Couldn't have done it without your vote Jennifer. I thank you for your civic duty!

[R C Dean]

She is always, of course, free to decline the representation, resign her position, and/or to advise the administration that justice will not be served by giving license to police and prosecutors to invent evidence.

I am not willing to give her a pass for anything she has done as Solicitor General. She either agreed with it, or sacrificed her integrity on the altar of political expediency.

[kinnath]

Since I'm not a lawyer, I can't argue the ethics of arguing something you don't believe on behalf of your client.

The good news is that her prior advocacy is not a past ruling or a potential future ruling. So it should be fair game for the confirmation hearing right 😉

[Greg Ransom]

Kagan & Sotomayor both are from the same city, in the same state, both got degrees from the same department at the same university as undergraduates, both are unmarried and childless. Both graduated from Ivy League law schools and taught at Ivy League law schools.

There are hundreds of thousands of cities in America, and dozens of different undergraduate deparments at thousands of different colleges and universities, and there are hundreds of different law schools in America, and hundreds of millions of people who are not unmarried, childless females.

In all of America there cannot be two people capable of sitting as a judge who are more identical in background than Kagan and Sotomayor.

This is "diversity" in modern America.

[kinnath]

Imangine the problems resulting from that work-place romance.

[Coeus]

Gee, thanks for that. I may never have an erection again.

[Greg Ransom]

"Diversity" on the Supreme Court is left wing Ivy League females from Brooklyn, Manhattan, and the Bronx ...

[Greg Ransom]

A majority of the Supreme Court will be from either New York City or New Jersey ... and all of them will have attended Harvard Law or Yale Law.

Diversity!

[Greg Ransom]

Who knew the express train to the Supreme Court went through the left wing Princeton undergraduate history department?

[tom swift]

There are only about 20,000 cities and towns in the US.

The place is downright cozy.

[Greg V.]

I could seriously care less at the point who ends up on the SCOTUS. Let's face it, everyone nominated is the result of some back room deal and a person who will find a way to compromise what little freedoms we have left. Once in a while, you get someone like Sandra Day O'Connor who while far from perfect at least had some sense. Most of the time, it's just some hack who was groomed by the politicians and their think tanks. Kagan is no different. No better, no worse.

[the Ugly]

Sandra Day O'Connor who while far from perfect at least had some sense.

You mean the same Sandra that wrote that affirmative action quotas were Constitutional now, but may become Unconstitutional sometime in the future? Makes sense to me!