Do Justices Really Make a Difference?

Thursday, July 8th, 2010
Baton Rouge, Louisiana

A NEW SUPREME COURT JUSTICE:
WHO CARES?

About the last thing on anyone’s mind right now, particularly in my home state of Louisiana, is whether or not Supreme Court nominee Elena Kagan will be confirmed by the U.S. Senate. It’s pretty much a “done deal,” right? Whoever the President wants, the president gets, regardless of political party. Oh, in the Kagan case, the republicans will throw up some half-hearted concerns about Kagan being too liberal and not enough of a “strict constructionist,” whatever that is supposed to mean. So why should the average American care?

In recent polling data, two-thirds of the 1,000 American adults polled couldn't name a single current justice, and just 1 percent was able to name all nine sitting justices. Less than one-third of voters have any view of Kagan at all. This lack of governmental knowledge really is not all that big of a surprise when you look at other historical events that have most Americans perplexed.

• More Americans could identify Michael Jackson as the composer of "Beat It" and "Billie Jean" than could identify the Bill of Rights as a body of amendments to the Constitution.

• More than 50 percent of respondents attributed the quote "From each according to his ability to each according to his needs" to either Thomas Paine, George Washington or President Obama. The quote is from Karl Marx, author of "The Communist Manifesto."

• More than a third did not know the century in which the American Revolution took place, and half of respondents believed that either the Civil War, the Emancipation Proclamation or the War of 1812 occurred before the American Revolution
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So it’s of little surprise that nominee Kagan registers so low on the national recognition scale. If you were one of the few that sat glued to C-Span through the Senate Judiciary Hearings last week, here is what you would have found out:

On TV cameras in the court room, that are presently prohibited, Kagan is for them. Good for her on this issue. Her colleagues have for years thrown up the hoary arguments the television would undermine the high court’s “ethos” and bring forth the justices’ faces to C-Span-watching terrorists. Bunk. TV court room coverage works well in many state judicial systems including Louisiana’s. In fact, I argued the first televised case before the Louisiana Supreme Court back in the mid 1990s. The issue involved the right of law enforcement officers to seize cars that were uninsured. I won the case, by the way, and the television broadcast was no big deal. So mark one for the nominee.

But her score takes a justified hit on a whole host of other issues including her decision as dean of Harvard Law to bar recruiters from the school's career services office over the Pentagon's policy against openly gay soldiers. Kagan said she was trying to balance Harvard's nondiscrimination policy, which she believed "don't ask, don't tell" violated, with a federal law that required schools to give military recruiters equal access as a condition of eligibility for federal funds. But that was the law, later upheld in a legal challenge unanimously by the Supreme Court. With two wars going on at the time, Kagan would have seemed to have substituted her personal view rather than what the law required.

There are a number of positions Kagan argued before the Supreme Court as Solicitor General that undermine and impede basic freedoms, and that should concern those asked to promote her to the nation’s highest court. One such troubling case involves former Alabama Governor Don Siegelman, convicted of bribery in 2006. The Supreme Court last week unanimously vacated Siegelman’s conviction, after ninety-one state attorneys general urged that the conviction was unjust and should be overturned.

Kagan filed a petition urging the Supreme Court to deny hearing Siegelman’s appeal. The facts showed that an Alabama business man made a large donation to support the creation of a lottery with the profits to go to public schools. The governor appointed the contributor to a spot on Alabama’s hospital oversight board. A tit for tat? Not even close. If governors were indicted for appointing a campaign contributor to a board or commission, there would not be one chief executive still serving anywhere in the country. Kagan supported a conviction where there was no crime.

The list of similar questionable actions by Kagan is long. Her positions are often detrimental to individual rights and freedoms. If she is the best the country has to serve on the nation’s highest court, then the cream is far from rising to the top, and it’s mediocrity that is on the assent.

So is there a chance she will not be confirmed? Absolutely not. The lady’s a cinch, for as even some republicans are saying: “Elections have consequences.” Though mediocre in qualifications, Kagan is the President’s choice, and the democrats will offer support in lock step. The same scenario would be playing out if the unqualified nominee were a republican under a republican administration.

In the meantime, enough about these trivial concerns. Who cares who interprets our laws and protects our basic freedoms? After all, the new season of American Idol is not all that far off. And that’s when the voting really matters.
*****

“So what if he is mediocre? There are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they?”

Senator Roman L. Hruska of Nebraska

Peace and Justice

Jim Brown

Jim Brown’s syndicated column appears each week in numerous newspapers and websites throughout the South. You can read all is past columns and see continuing updates at www.jimbrownla.com. You can also hear Jim’s nationally syndicated radio show each Sunday morning from 9 am till 11:00 am central time on the Genesis Radio Network, with a live stream at http://www.jimbrownusa.com.