Thursday, May 13, 2010


Consider these gleanings.

David Brooks, "What It Takes." Kagan has been extraordinarily caution throughout her legal career. 

She has become a legal scholar without the interest scholars normally have in the contest of ideas. She’s shown relatively little interest in coming up with new theories or influencing public debate. Her publication record is scant and carefully nonideological. She has published five scholarly review articles, mostly on administrative law and the First Amendment. These articles were mostly on technical and procedural issues.
Kagan has no experience in actually judging. Of course, neither did Earl Warren, but that is no defense. Read James R. Copland at City Journal. ("Kagan Flunks Her Own Test.")

Elena Kagan, President Obama’s nominee to succeed John Paul Stevens on the Supreme Court, published some thoughts on the judicial confirmation process in 1995. Reviewing Stephen Carter’s book The Confirmation Mess in The University of Chicago Law Review, Kagan asserted that prospective jurists should have demonstrated a talent for judging: “It is an embarrassment that the President and Senate do not always insist, as a threshold requirement, that a nominee’s previous accomplishments evidence an ability not merely to handle but to master the ‘craft’ aspects of being a judge.” While not in my view an “embarrassment,” Obama’s decision to nominate Kagan to the nation’s highest bench flunks her own test. If confirmed, Kagan would become the first justice in 38 years to join the Supreme Court without judicial experience.

Mark Steyn sees a stealth Canadian. ("The Canadianization of America, cont.")

For some of us, Elena Kagan is deja vu all over again. Whether or not she belongs on the Supreme Court of the United States, she'd be a shoo-in as successor to Jennifer Lynch, QC, Canada's Chief Censor. Ms Kagan's views on free speech could come straight from any Canadian "human rights" tribunal hearing: "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."

"Balancing" is the code word there. Canada's thought police are all about the "balancing".

Steyn points us to Mark Tapscott, "Kagan: Speech is free if government decides it has more value than 'societal costs'," and the defense by Jennifer Lynch, Chief Commissioner of the Canadian Human Rights Commission, of a good government's obligation to limit free speech in the interest of preventing expressions of hatred and contempt: "Hate speech: This debate is out of balance."

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