Legal Progressive Doesn’t Know Meaning of Term ‘Legal Progressive’
**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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Well, if she really is honest about it, she truly is unqualified. If she really is lying, or being evasive, she truly is unqualified.
She should have just fessed up and admitted that she’s progressive. That’d kind of honesty would be worth several bonus points to the Dems and RINOs alike.
She isn’t a very good liar either.
Okay, how about commie, pinko, Marxist, Socialist, domestic terrorist?
When it says Libby’s Libby’s Libby’s on the label label label, you will like it like it like it on the table table table!
She’s got big a$$ and a small brain is what she’s got!
She wears the L-word uniform right down to the haircut.
Ha! I’m not saying she’s butch, but don’t the Dutch name dikes after her? You know like “down by the kagan.”
Uh, Liberal, not Lesbian……harumph
Why the hell would she know, or care, that one of the 16 student run legal journals happened to use that term to describe itself?
Is she also accountable to what the HLS intramural softball team has on its site?
Oooh, that was bit much.
This is the part that just frosts me — outright lying in the hearing, denying what everyone, and I do mean everyone, knows to be the truth. That dishonesty alone should be enough to disqualify her.
Reminds me of the old “Major Raymond J. Johnson Jr.” skit where he’s asked the following:
Reporter: “How do you react to the charges of nepotism in your administration?”
Major Johnson: “Why I don’t even know the meaning of the word. I will have to ask my borther-in-law, the streets commissioner, to tell me just exactly what that means.”
Obviously, Kagan is a brilliant, highly educated legal scholar. She should do the Monty Python Dead Parrot skit. She’s a natural. /sarc
She couldn’t get picked up after “Last Call” in a Norfolk bar when 2 Carrier Battle Groups pull in from a 6 month deployment.
Last time they saw something that ugly was a Sea Bat hanging off the fantail!
And this is a stupidly twisted, totally out of context way of describing that comment.
First, it was a deputy solicitor general that made the comments in question, not Kagan. So to in any way attribute them to her is simply dishonest.
Second, the deputy solicitor general was being pressed, unnecessarily, about a section of statute that had no relevance to the case at hand.
Third, he never said the book could be banned. Just that the statute said it could not be paid for with general corporate funds. Rather, it would have to be paid for with PAC money.
The whole “no enforcement” part was simply his way of trying to glean how the justices figured the specific statute said what they were claiming it said because i) it wasn’t clear from the plain text and ii), as she rightly pointed out, the FEC had never once tried to enforce that section of the statute with reference to books.
That may actually be debatable, and an insult to the Sea Bat at that.
This whole hearing is a sham, she will never tell the truth. Our country is being run by fools and the only way out is to throw them all out of office. Looks more like 1776 everyday. It’s our turn to solve these problems, these fools are not going to do it.
Let me clarify this…he did not concede that the provision did in fact apply to books. But even if it did, the statute simply says that it can’t be paid for with general treasury funds. That is not, by any reasonable definition a “ban.”
Many are not fools, at least in TEH WON’s administration, and know exactly what they are doing. Aided by said fools, however – AKA useful idiots.
To quote the great Hillary I find I have to “knowingly suspend belief” to accept that Kagan does not know the meaning of the phrase … so that answer was rather disingenuous at best …
That being said I think Sessions attempt to corner her on something as obtuse as statements from some HLS students and the personal opinions of a deputy solicitor general was very lame and ridiculous … he appeared to have no idea what to expect as her response nor any idea where he was going to go with the line of questioning based on the response …
Afraid I have to agree with Chap on this one …
Poorly planned line of questioning and an even poorer execution of whatever that plan was …
It’s funny she does not recognize the label Legal Progressive. Leftists are constantly using terms like “progressive”, “social justice”, “nexus”, “policy initiatives”, “infrastructure”, “transparency”, “legal”, etc. etc. Given their penchant for self-congratulation and promotion, surely those two words would have joined up at some point. It’s just too delicious a combination for her not to have used it herself, or heard it used. What’s that term…. “straining credulity”?
Anything Kagan SAYS is meaningless. I would never even ask her a question. What’s relevant are her past legal briefs, statements, and writings.
She is no different than McCain or Obama. Look at McCain’s and Obama’s voting history. How did it match with their rhetoric in the election campaign? Does Obama’s actions in office match his voting history and past writings or what he said during the campaign? NUFF SAID.
Kagan is who her past says she is. Period.
This discussion is moot anyway. Kevin James will be confirmed as a matter of course…. Next debacle please.
A new variation on the Ed Asner Patented Crawdad defense….
“Am I a Communist? What’s a ‘Communist’?”
With the Marxists in charge now, what are the odds that they will?
I know, but she should have to really, really squirm.
“This will not be over quickly. You will not enjoy this.”
Do you know what “Perjurously Progressive and Perfunctorily Pusillanimous, Anally Retentive Twat” means? (AKA: Liberal tool/a$$clown)
Look it up…you’ll find a list of Obama appointees.
I’m guessing she knows more about softball than you suspect. And you aren’t really seriously arguing that she doesn’t know what a legal progressive might be? Dean of Harvard Law? Though based on grads like Obama, the quality seems to have slipped.
right_on …
Isn’t that the name of BO’s Bus ???
Watching Kagan respond to this question was quite telling to me.
If someone were to have a ‘body language expert’ review her response, they would likely call her disingenuous. Kagan was desperatly trying to pretend she does not even know what a progressive is.
What someone should have asked her as a follow up was ‘Are you aware that Obama, the fellow trying to appoint you to this job, was a member of the Progressive Caucus?’ Then she could have nicely pretended complete ignorance of many of the members of this very Senate committe.
I am saying that pointing to that as an example that she should is stupid.
And I also think that she shouldn’t be forced to accept someone’s self serving definition of an ambiguous term. He was clearly trying to link it to some notion of “activist” which is in and of itself a loaded, ambiguous term that people define to suit their current needs.
Where I live they would call her a liar.
You’re right. Like, for instance, when Leaky Leahy calls Roberts and Alito activists for using the Constitution to rule on constitutionality.
Yeah, chap, she should have used the “I may have to rule on a case concerning legal progressives, so I can’t tell you my opinion.” defense.
You see? There is an issue right there. Does “activist” mean not giving deference to the legislature like we saw with Citizens United? Does it mean creating implicit rights, like the right to privacy like in Griswold v. Connecticut? Does it mean actively ignoring an unambiguous law?
She doesn’t sound quite as snarky while being grilled by the Republicans on the committee as she did when she wouldn’t let recruiters on the campus at Hahvud. I remember her being verrrry snarky, and she seemed to glow at the adoration of her fans in the media. I knew she would turn up again later.
Being a conservative, I would describe “activist” as not giving deference to the Constitution. After all, why did the Supreme Court arrogate unto itself the power to rule on constitutionality if not to rule on constitutionality? If you concede that power to the court, then you have to concede that they are acting within the scope of their duties to rule the law unconstitutional. If you are claiming that a piece of legislation overrides the Constitution, then you are a typical leftist. Oops, “legal progressive”.
Please, Chaps…
You don’t seriously want to die on that dung-heap, do you?
How do you define “activist” Rags?
So far we have “does not give deference to constitution”. So I guess that means that in any case that does not involve a constitutional issue (which is the vast vast majority of them) it is per se, impossible for the judge to be activist.
So if you concede that the Supreme Court is the final arbiter of constitutionality, then you must also concede that their interpretation of such ambiguous terms as “interstate commerce”, “cruel and unusual”, “reasonable”, “search”, “seizure”, etc. is the final word?
I suppose I should clarify that I was referring specifically to the Supreme Court, since that’s the subject of the thread. An “activist” judge at lower levels would be one who ignored precedent and the clear letter of the law in his rulings, as many leftist “activist” judges are wont to do. And no, I won’t try to give you citations.
Color me surprised.
Chaps, you really elect to prove yourself a master of disingenuous argument, which is too bad.
In the context of a Supreme Court justice, is “does not give deference to the Constitution” a bad point of departure for illuminating what we mean by “activist judge”?
Sure, until another Supreme Court decision overrules them.
Which nobody (I hope) does. They are the nominal interpreters of constitutional meaning.
The final arbiter is the people.
I thought you’d know that.
I don’t know. I am not the one claiming anyone is or is not an activist judge. I am just repeating what txvet said.
Again, why don’t you give me your definition? Or better yet, explain why Sessions couldn’t simply break down his definition of “legal progressive” and ask Kagen about each of those components, rather than trying to force her to glean what other people meant by those words?
By what mechanism?
Except for txvet, apparently.
Only in the immediate sense, although your question to Rags does tend to imply that you agree. After all, we’ve been living with Roe v. Wade for a long time.
Chapoutier, 2008
Maybe you can answer by what mechanism people decide the constitutionality of a term? I don’t recall ever being polled by Gallup on whether or not the violation of the “knock and announce” rule required suppression of evidence under the exclusionary rule.
Sometimes, I can’t tell when you’re just playing dumb….
Amendment.
Civil disobedience.
Revolution.
HA! Actually, I thought of this very situation (and my comment to it). The difference being that Gibson actually did go on to define what he meant, and Palin still flubbed the question.
But I am curious as to whether or not you are defending Palin there, and thus agreeing with me here, or criticizing Palin there and disagreeing with me here.
You think it is up to “The People” to determine every definitional aspect of constitutional law, and I am the one playing dumb?
And how exactly do “The People” bring about a constitutional amendment? Do you think we live in a democracy?
OT, shallow and catty, whatever her politics, this broad is butt ugly. Typical liberal.
Why should you expect me to answer for Rags? Anyway that isn’t the question you appeared to be asking him, and your rephrase demonstrates that you may have realized what a stupid question it was.
Because your answer to to me does tend to imply that you agree with Rags.
Being a rather law abiding sort, I’d also add the obvious: Elections.
It is exactly the question I asked him. Apparently he thinks that questions of constitutional law can only be settled by open rebellion or by “the people” amending the constitution. I suppose he thinks it both possible and good that we would have 60 or so constitutional amendments every year. It would make it a might harder to carry around a pocket version of the Constitution to wave about at those tea party rallies if it were the size of War and Peace, now wouldn’t it?
You sure love to change the subject when you’re in a corner, don’t you? Your statement to Rags implied that my opinion was unique – although I’m pretty sure that most of you on the left agree with it. I don’t think any court is a “final arbiter”, because, as I commented above, (which you apparently missed – there’s that reading comprehension problem again), any future Supreme Court can overrule them. Not to mention the other possiblities that were mention subsequently.
Not when the legislature goes so flagrantly against the Constitution. We’re not talking about an emanation out of a penumbra here. Trying to restrict commentary on issues goes pretty clearly against both the letter and spirit of the First Amendment.
It may have been the question you intended to ask, but if so, you did it poorly.
Soooo…The Supreme Court is not the final arbiter because it can change its mind? Maybe you don’t know the difference between a decision being final and who the final decision maker is. Let me ask, are you married?
The other “possibilities” were either stupid (“revolution”) or absolutely impractical on anything close to a consistent, necessary basis (“formal amendment”).
I am sorry for your inability to understand.
Do you think the framers intended corporations to be treated the same as actual people?
Some may assume that a legal genius is posting today. I’m not so sure. Kwame Kilpatrick and Monica Conyers received law degrees. Lawyers are never wrong, just wronged.
what else do you expect from the Dean of Harvard LIE School and friend of the Marxist-in-chief? every word out of this hag’s mouth is a lie, just like her nominating dictator.
Newsflash: Scum will vote to approve scum – we all suffer and American society (we the people) are on our backs, with Marxist-in-chief kicking us in the head.
Nothing wrong with my understanding of your need to cherrypick parts of comments to build your silly little strawman arguments and cast your sophomoric slurs. But I don’t mind. You have to use what you’ve got and you ain’t got much.
I’ve been married a couple of times. Same principle.
That distortion of my comment amounts to you lying. The people are the ULTIMATE arbiter of the Constitituion. It belongs to us. As I also stated, the Supremes are the nominal interpreter of the meaning of the Constitution. Hence, by your distortion of what I said, you show yourself willing to lie.
We live in a democratic republic, whose charter provided for at least two avenues to amend that charter via amendment; both of them incorporating democracy.
No, its not. But you seem to be in good company here. I have never seen a group with so many multiple divorcees.
Stop with your histrionics and hyperbole and statements of grand underlying principle and lets cut to the chase. Name me ONE single amendment to the constitution that has ever arisen directly to correct a ruling in a Supreme Court case.
So, you didn’t mean “the people.” You meant “2/3 of the House and the Senate, both of whom are elected by those people that are eligible to vote, but not required in any sense to vote for what a majority of those people want and then 3/4 of the state legislatures, who again are elected by some of the people and are in no way required to follow the will of the people”?
And what part of “republican democracy” was too hard for you to grasp?
And, whatever you think of who is the “final arbiter” of the Constitution, for you to claim that the Supreme Court is merely a “nominal interpreter” of it is just about the stupidest thing I have ever heard coming from a lawyer.
There is nothing “nominal” about the Supreme Court. Their rulings have real impact. Otherwise, you and everyone else wouldn’t be throwing such a fit over Kagen or Sotomayor. Nor would the left have thrown such a fit over Roberts or Alito.
HEY!
Yet another intentional distortion.
I think you’ve demonstrated nicely your character here.
But you are still very young.
Like the health care reform act, or the cap and trade, or the financial reform or the…..
You need to expand your understanding, pup.
Nominal does not mean what you think it means.
Given that rant, I’d say pretty much all of it.
Rogue Cheddar is definitely on a roll today!! Now that I’ve picked myself off the floor…great stuff!!!
I wasn’t objecting to that, as you already know. I was objecting to you claiming that the Constitution can be amended by “the people.” That is simply wrong. “The People”, at best, can vote (well, not all of them, only the ones allowed to vote) in hopes of achieving a supermajority political makeup that will be spurned to take action that a supermajority of also-once removed state governments will agree to.
Makes his point – but November’s coming……
Oh, this is excellent, and apropos for the topic at hand. Give me whatever definition you claim to be working off, old man. And a cite please.
So you want to claim that “the people,” through the amendment process, are the final arbiters of the constitutional meaning, but can’t come up with one single instance in which they have specifically overridden the Supreme Court?
I’d rather see you guys break dance to the death!!
How ’bout “to the break”…??? That would take very little time…
Tonight, I disinclined to give you the sweat off my orbs.
Look it up, foolish, mendacious child.
I don’t care which it is, but make sure you put it on youtube.
Do you deny the people…via the democratic process…could effect that by at least TWO avenues?
Translation:
About what I expected your response to be.
In any practical sense? Yes.
Traslation: 1) I was too lazy to look up “nominal” in the dictionary to see how many ways Rags might correctly apply that term in context with his comments; or
2) I looked up “nominal” in the dictionary, and found that Rags knows more about the use of the word than I do, but I’m such a punk asped b!tch that I won’t acknowledge it.
Which applies is a matter of pure speculation for each reader here….
Not to mention Prohibition.
If you spent as much time simply linking to the definition you claim to be using as you do throwing insults my way, we could both move on to another topic.
Was prohibition a Supreme Court decision?
Maybe Rags could ask himself why we don’t have a flag burning amendment after Texas v Johnson even though support for such was at about 70% after the ruling and remained high for years after.
Popular Amendment
One other way of amendment is also not mentioned in the Constitution, and, because it has never been used, is lost on many students of the Constitution. Framer James Wilson, however, endorsed popular amendment, and the topic is examined at some length in Akhil Reed Amar’s book, The Constitution: A Biography.
The notion of popular amendment comes from the conceptual framework of the Constitution. Its power derives from the people; it was adopted by the people; it functions at the behest of and for the benefit of the people. Given all this, if the people, as a whole, somehow demanded a change to the Constitution, should not the people be allowed to make such a change? As Wilson noted in 1787, “… the people may change the constitutions whenever and however they please. This is a right of which no positive institution can ever deprive them.”
It makes sense – if the people demand a change, it should be made. The change may not be the will of the Congress, nor of the states, so the two enumerated methods of amendment might not be practical, for they rely on these institutions. The real issue is not in the conceptual. It is a reality that if the people do not support the Constitution in its present form, it cannot survive. The real issue is in the practical. Since there is no process specified, what would the process be? There are no national elections today – even elections for the presidency are local. There is no precedent for a national referendum. It is easy to say that the Constitution can be changed by the people in any way the people wish. Actually making the change is another story altogether.
Suffice it to say, for now, that the notion of popular amendment makes perfect sense in the constitutional framework, even though the details of effecting popular amendment could be impossible to resolve.
Link for Chap.
And Dred Scott? Recall I said “practical” sense. Dred Scott took a 4 year war and hundreds of thousands dead on top of the formal amendment process to overturn.
Ha-ha. Some lawyers are never wrong, just wronged. Words, words and more words.
Forgot the link.
No, I am not that smart but I did sleep at a Holiday Inn in DC once.