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Legal Progressive Doesn’t Know Meaning of Term ‘Legal Progressive’

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By Doug Powers  •  June 29, 2010 03:54 PM

**Written by guest-blogger Doug Powers

Oh, of course she does, but how quickly even those with the highest formal educations can suddenly act like they were raised by wolves:

Supreme Court nominee Elena Kagan on Tuesday fought off Republicans who were trying hard to paint her as a liberal activist, saying she’d be a fair, open-minded justice and refusing to call herself a “legal progressive.”

“I honestly don’t know what that label means,” Kagan told Sen. Jeff Sessions of Alabama .

Sessions, the Senate Judiciary Committee’s top Republican, kept pressing the former Harvard Law School dean, quoting her colleagues to make the point. Kagan wouldn’t take the bait, though.

As Sessions pointed out in the confirmation hearing, as of last month, Joe Biden’s smartass chief of staff knew the meaning of the label “legal progressive”:

“Elena is clearly a legal progressive,” said Ron Klain, Vice President Joe Biden’s chief of staff and Kagan’s classmate at Harvard Law School in the 1980s. “She’s got a pragmatic perspective.”

As Dean of Harvard Law School, you’d think Kagan would have disallowed a label with which she’s so unfamiliar from being used in the description of the Harvard Law & Policy Review:

The Harvard Law & Policy Review provides a prominent forum for debate and discussion of innovative progressive and moderate legal policy ideas, analysis and proposals. The Review invites innovative approaches to policy challenges by progressive legal scholars, policymakers, and practitioners. HLPR serves as a nexus between the worlds of academia, policy-making, and practice, with a focus on promoting first-rate scholarship with practical application to societal challenges. HLPR is the official national journal of the American Constitution Society for Law and Policy (ACS).

Naturally, Kagan’s dodge is part of the game people who can’t fess up to what they’re really about must play, but it’s the Republicans’ job to be prepared with proper follow-up material (passing concern — Orrin Hatch isn’t preoccupied with writing a song for Robert Byrd like he did for Teddy, is he?).

I’m not a lawyer, and the closest I’ve ever come to a courtroom is showing up for jury duty, but maybe Sessions should have replied, “A legal progressive… you know, somebody who, oh, I don’t know, thinks it’s okay for the government to defy the Constitution but who justifies the unconstitutionality with precedent from foreign laws while trying to alleviate the fears of Constitution zealots by expressing a degree of certainty that the government won’t enforce whatever it is they’re doing anyway.”

By the way, I’ve found no validity to the claim that Chuck Grassley was trying to get clues about Kagan’s sexual preference by asking her if she’s bummed Lilith Fair was cancelled.

**Written by guest-blogger Doug Powers

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