Thursday, May 13, 2010

Mike Lee, Kagen and the Judiciary

Mike Lee and the Judiciary Committee

Mike Lee is a constitutional lawyer, right? At least he sure tries sell his "expertise" in interpreting the constitution as a selling point to voters. Due to his career as a constitutional lawyer, I think we need to carefully scrutinize his statements regarding the judiciary.

Mike Lee has come out as an early opponent of the Supreme Court nominee, Solicitor General, Elena Kagan. The biggest reason for his opposition is due to the fact that Elena Kagan prohibited military recruiters from conducting on campus interviews because of her opposition to "don't ask, don't tell" while Dean of Harvard Law School.

First, the allegation of Ms. Kagan single-handedly prohibiting the military from accessing Harvard students is, as Jason Williams at KVNU's For the People points out, fundamentally incorrect. According to the NYTimes article linked supra, she reinstated the long-held Harvard ban shortly but bowed to pressure from the Federal government to remove the ban and she never banned the military from all access to Harvard Law students -- recruiters were only banned from operating out of the schools career center.

Second, "don't ask, don't tell" is, in fact, a discriminatory policy and as such it's constitutionality is questionable. For Mike Lee to quickly and openly oppose the current nominee because of her opposition to a Federal policy that openly discriminates against a group of people, is either blatant pandering to the right or it shows a complete disregard for thoughtful reasoning and analysis. In the case of Mike Lee, I'm pretty sure it is the former. His immigration platform has already demonstrated his willingness to pander, and embrace about anything necessary in order to get the right to embrace him as the re-embodiment of Ronald Reagan. There are some very reasonable questions about the constitutionality of "don't ask, don't tell" and that should not be an automatic dis-qualifier for a Supreme Court justice.


From what I have heard about Kagan, I like her. My favorite part about her is the criticism she placed on the Judiciary committee for allowing nominees to get by with, what she called, "vague answers", and she also has commented that the confirmation process had become "a vapid and hollow charade." Given that this was written before her nomination to the high court, I'm sure Ms. Kagan will probably end up using the same stonewalling tactics that just about every Supreme Court nominee since Bork has used in her confirmation hearings -- but I appreciate that she expressed that sentiment in her pre-nomination writings.

Given the fact that she has been nominated by Obama, I'll assume that she has some pretty strong liberal leanings aside from the opposition to "don't ask, don't tell" -- but she appears to have some moderate views as well. For example, while she worked as counsel to Clinton she urged him to sign a ban on late term abortions and she also has made some comments or has some writings that appear to support keeping terrorists under the scope of battlefield law rather than giving them the rights of US citizens in the US Justice System.

For a nominee from a liberal President, I'm cautiously optimistic that she may turn out to be a good moderate-liberal addition to the court. Anyways, if she isn't Borked, I'm sure time will tell.

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