The American Conservative

Federal Judge Vaughn Walker is truly a visionary.

Peering at the 14th Amendment, Walker found something there the authors of the amendment never knew they put there, and even the Warren Court never found there: The states of the Union must recognize same-sex marriages as equal to traditional marriage.

With his discovery, Walker declared Proposition 8, by which 5.5 million Californians voted to prohibit state recognition of gay marriage, null and void. What the people of California voted for is irrelevant, said Walker; you cannot vote to take away constitutional rights.

If the Walker decision is upheld by the Ninth Circuit and Supreme Court, homosexual marriage will be imposed on a nation where, in 31 out of 31 state referenda, the people have rejected it as an absurdity.

This is not just judicial activism. This is judicial tyranny.

This is a perversion of what the authors of the Constitution wrote and what the states approved. Through such anti-democratic means, the left has imposed a social and moral revolution on America with only the feeblest of protests from the people or their elected leaders.

Thus, the Supreme Court purged Christianity from the public schools and public square of a nation whose presidents from Wilson to Truman to Carter declared her to be a Christian country.

Thus, the Supreme Court peered into the ninth amendment and found a constitutional right to engage in homosexual acts and procure abortions, both of which had been crimes. Read More…

While the rest of Washington—and the country—wonders if Elena Kagan would work for good or for evil as a Supreme Court justice, The Washington Post’s Pulitzer Prize-winning critic Robin Givhan has other things on her mind.

Whether Kagan leans left or right in her judicial demeanor is for court observers to debate. But in matters of style, she is unabashedly conservative.

Like, say, every other Supreme Court nominee?

The other men and women who have gone through this process have not been daring in their wardrobe choices either.

So why waste valuable real estate on the pages of the fifth-largest newspaper in the country to discuss how Kagan “put on rouge and lipstick for the formal White House announcement of her nomination,” but otherwise “embraced dowdy”? We even get the critical information that she wore “sheer black hosiery” at the press conference. It’s not as if those column inches couldn’t be filled with more in-depth reporting and analysis of more important stories. I searched in vain yesterday for a skeptical piece on Obama’s National Security Strategy.

And Givhan had actually already written this piece before—when Sonia Sotomayor was going through her confirmation hearings for the court. The two lawyers embraced the same Washington Woman style: black skirts and black pumps with jackets in either black again or in bright, simple colors (with that sheer black pantyhose on which Givhan is so fixated).

Givhan seems continually frustrated that she can’t judge Sotomayor’s and Kagan’s fitness for one of the most important jobs in the land simply by looking at their labels. In the new piece, she says in the passive voice that “[a]ll hints of personality were deftly extracted” from Sotomayor’s person, while she complained in the earlier piece that Sotomayor’s attire “offered no hints of personality” and “expressed little personality.”

How many high-powered government lawyers do communicate their individuality through their clothing? Kagan is not interviewing for a job in a creative field—as much as some might see interpreting the constitution as such. But Givhan, who was stuck moving to dreary Washington from the more fashionable New York when her beat expanded to cover the first lady, wants to see this city transformed.

Kagan’s version of middle-age seems stuck in a time warp, back when 50-something did not mean Kim Cattrall or Sharon Stone, “Cougar Town” or “Sex and the City.”

The thought of Kagan, Sotomayor, or—heaven forbid—Ruth Bader Ginsburg dressing 20 to 30 years younger than their actual ages gives me a shudder. But I suppose none of us knows exactly what they’ve got on under those black robes. (As the just-released Sex and the City 2 suggests, Muslim women wearing black burqas just might be rocking Vuitton and Valentino under there. That diaphanous film, in which the foursome take on Abu Dhabi, did a better job of connecting fashion and politics than the first clothes critic to win the Pulitzer Prize ever has. Sure, the criticism might not be on the highest level here. Carrie sees that even women’s mouths are covered in some Muslim attire. “It’s like they don’t want them to have a voice,” she muses as she watches a woman eating French fries, lifting her burqa up slightly to taste each one. But what other part of our popular culture is addressing the clash of civilizations? And as you can imagine, if you know anything about the HBO series that spawned the film series, there is certainly a clash here.)

Perhaps the strangest part of Givhan’s piece is her description of how Kagan sits.

She walked with authority and stood up straight during her visits to the Hill, but once seated and settled during audiences with senators, she didn’t bother maintaining an image of poised perfection. She sat hunched over. She sat with her legs ajar.

This is, at least, the only creative observation of the article. I don’t think I’ve heard that description of slightly open legs before. Even funnier is the caption to the picture of Kagan talking to a senator that accompanies the piece:

UNUSUAL: Most women, including Sen. Amy Klobuchar, cross their legs when sitting, but not Kagan.

Weird woman! She doesn’t cross her legs! What does this say about her sexuality—and her suitability for the court?

Oddly enough, Kagan is “hunched over,” while in the previous piece Sotomayor “slouched.” But that wasn’t a bad thing to Givhan then.

The jackets had plenty of buttons so they didn’t gap if she slouched — and really, who could sit with ballerina posture during all that mind-numbing questioning and non-answering?

Maybe that’s why Givhan is so uninterested in questions of substance. They’re “mind-numbing.”

It might be facetious to point out the inconsistency here. It must be hard to write a second piece about another legal career woman who’s a dull dresser so soon. And it’s not as if Givhan is coherent in her calls for a more glamorous political class. I wrote a piece a while back about her snarky view of Carla Bruni, the woman now married to French President Nicolas Sarkozy. Writing then, she complained about Bruni’s beauty.

Models already get the star athletes. The bookish debate-team captain should get the prime minister.

She didn’t approach Carla Bruni on the substance, either—Bruni is an enormously talented singer-songwriter who had a successful career after she modeled and before she met Sarkozy. It seems women can’t win with Robin Givhan. They either dress too plainly or too elegantly. In neither case does Givhan consider the context—something intelligent women do every day when they get dressed for work.

“A chorus of black commentators and civic leaders has begun expressing frustration over (Elena) Kagan’s hiring record as Harvard dean. From 2003 to 2009, 29 faculty members were hired: 28 were white and one was Asian American.”

CNN pundit Roland Martin slammed “Kagan’s record on diversity as one that a ‘white Republican U.S. president’ would be criticized for.”

This is an excerpt from the Washington Post about the rising anger in a black community, which voted 24-1 for Obama, that one of their own was once again passed over for the Supreme Court.

Not since Thurgood Marshall, 43 years ago, has a Democratic president chosen an African-American. The lone sitting black justice is Clarence Thomas, nominated by George H. W. Bush. And Thomas was made to run a gauntlet by Senate liberals.

Indeed, of the last seven justices nominated by Democrats JFK, LBJ, Bill Clinton and Barack Obama, one was black, Marshall; one was Puerto Rican, Sonia Sotomayor. The other five were Jews: Arthur Goldberg, Abe Fortas, Ruth Bader Ginsberg, Stephen Breyer and Elena Kagan.

If Kagan is confirmed, Jews, who represent less than 2 percent of the U.S. population, will have 33 percent of the Supreme Court seats.

Is this the Democrats’ idea of diversity?

But while leaders in the black community may be upset, the folks who look more like the real targets of liberal bias are white Protestants and Catholics, who still constitute well over half of the U.S. population. Read More…

Sven Wilson asks the question — not whether she’s qualified for the Supreme Court, but whether she’s even qualified for tenure at a major university. “When she was made a tenured professor at the University of Chicago, she had (as far as I can tell) only 3 5 publications (see correction below).  One of them was a book review (which counts for exactly zero in most fields) and one was a University of Chicago Law Review Article.”

Kagan is a very curious pick. Obama chose to break with recent precedent by looking beyond the federal bench for candidates, which would be commendable if it weren’t for the fact the only people more intoxicated with the power of the federal judiciary than federal judges are lefty law faculty. Catharine MacKinnon makes Ruth Bader Ginsburg look like Thomas Jefferson. Yet Obama chose not some powerhouse of liberal theory but a very well-heeled educrat who has made her way through the hedge mazes of academic insiderdom. What kind of a Supreme Court justice is such a person expected to make? Perhaps one compliant to executive power and political considerations — just as university bureaucrats have to be sensitive to academic politics. (As Lawrence Summers discovered.)

David Brooks glimpses the matrix darkly through Elena Kagan:

She seems to be smart, impressive and honest — and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.

The American political class is perennially obsessed with which party will come to power and what agenda it will implement, but, in some respects, this is a shortsighted view. Ultimately, victories for partisan legislation may pale in significance to constitutional changes. (Here, I use “constitutional” in the sense of the broader political system, the balance of ruling elements in the “regime,” rather than just the text of the Constitution itself.)

The Framers consciously constructed our political institutions to check the worst tendencies of each element. The Senate was supposed to be embody something of an aristocratic quality, the House the democratic element, the Presidency a monarchical component, and the Supreme Court the rule of law beyond day-to-day politics. Since the Founding era, though, we have seen tremendous changes in this balance. The Senate is now elected by popular vote and the nature of the Presidency has been transformed through reform of the Electoral College and the development of the primary system. On top of all that, the federal bureaucracy has taken on a life of its own. So our modern political system is a strange amalgamation of despotic, democratic, oligarchic, and bureaucratic elements overlaying the framework of the Founding. The question I’d like to pose: do we have too much or too little democracy at the present?

In an era of judicial legislating and the “imperial presidency,” it would be tempting to assume more power to the people would be the solution. Speaking from a conservative point of view, democracy sometimes furthers our ends (i.e. the passage of Prop 8 over the designs of California’s legislature and courts), but it’s less clear in other cases. For instance, if we did not have the less-democratic Senate, we would clearly have Obamacare by now. According to Tocqueville, more democracy would lead to more concern for equality and less respect for liberty, especially the right to property. So conservatives who rail against “elites” in the name of democracy are often entirely justified, but they are playing with a dangerous fire indeed, one that could burn them in the end.

Reports of the death of the Republican Party appear to have been premature.

Not since Sen. Bob Griffin derailed LBJ’s scheme to replace Chief Justice Earl Warren with crony Abe Fortas, before Nixon got to the Oval Office, has the GOP defied this city and voted to reject a liberal judicial activist for the court.

In 1970, after revelations of scandal forced Fortas to resign, Rep. Gerald Ford moved to impeach “Wild Bill” Douglas on similar grounds. Then the fire went out — for 40 years.

Meanwhile, Democrats trashed Republican nominees Clement Haynsworth, Harrold Carswell, and Robert Bork, forced Reagan to withdraw Douglas Ginsburg, and made Clarence Thomas and Sam Alito run an Iroquois gauntlet.

Finally, yesterday, Senate Republicans, defying threats of an Hispanic backlash if they voted to reject the first Hispanic nominee, stood up and said no more EZ passes for any liberal judicial activist. Read More…

When Republicans were warned not to give Sonia Sotomayor the drubbing Democrats gave Robert Bork and Sam Alito — lest they be perceived as sexist and racist by women and Hispanics — the threat was credible, for it underscored a new reality in American politics.

The Supreme Court, far from being the last redoubt of the White Anglo-Saxon Protestant in America, reflects the collapse of that WASP establishment, and a rising racial, ethnic and gender consciousness and solidarity.

Consider. In 45 years, no Democratic president has put a single white Protestant or Catholic man or woman on the court.

Six nominees have been sent to Congress by Democrats since 1964: Thurgood Marshall, an African-American, four Jewish nominees — Arthur Goldberg, Abe Fortas, Ruth Bader Ginsburg and Stephen Breyer — and one wise Latina woman. Not since JFK put All-American Byron “Whizzer” White on in 1962 have Democrats elevated a white Christian.

What about the Republicans?

Richard Nixon and Gerald Ford nominated seven to the court. All were white, all were male, all were Protestant: Warren Burger, Clement Haynsworth, Harrold Carswell, Harry Blackmun, Lewis Powell, William Rehnquist and John Paul Stevens. No diversity there. Read More…

The Supreme Court today ruled in favor of a firefighter suing the city of New Haven for denying him a promotion on account of his race (he’s white). In doing so, SCOTUS overturned an appeals court ruling from Sonia Sotomayor. Earlier in this session, the Supreme Court delivered two other rulings that might seem encouraging on the civil liberties front: the court decided that school authorities may not strip-search a 13-year-old girl as part of the all-important War on Ibuprofen, and the court ruled that defendants can cross-examine forensic technicians. (That latter decision found Antonin Scalia and Clarence Thomas joined by John Paul Stevens, Ruth Bader Ginsburg, and David Souter — with a similarly mixed coalition of “liberals” and “conservatives” in dissent. Interesting that the two Dubya-appointed conservatives justices, Roberts and Alito, opposed the older conservatives on this question of state privilege.)

These might be considered three wins for civil liberties, and in the context of the legal system as it stands, they are. But should any branch of the federal government be telling the state of Connecticut what firefighters to hire or prescribing to Arizonans what a school principal may or may not do? It makes a joke of the notion of federalism that the U.S. Supreme Court can dictate policy at such minute levels. We do have state courts and legislatures to provide redress for these kinds of grievances (though they’re just as bad as SCOTUS, if not worse). If we must have a nationalized judicial system, it ought to rule justly, but this is not the way our federal republic is supposed to work. That knowledge should temper our celebration even of apparent civil-liberties victories like these.

Having lost the Congress in 2006 and the White House in 2008, Republicans are looking to redefine themselves for a nation that still leans conservative but is less Republican that it has been in decades.

The nomination of Judge Sonia Sotomayor to the U.S. Supreme Court presents just such an opportunity. For, even if the party loses the battle and Sotomayor sits on the court, it can win the war, as Ronald Reagan won the Panama Canal debate, even as Senate Republicans committed collective suicide by voting to give away the canal.

What are the grounds for rejecting Sonia Sotomayor?

No one has brought forth the slightest evidence she has the intellectual candlepower to sit on the Roberts court. By her own admission, Sotomayor is an “affirmative action baby.”

Though the Obama media have been ballyhooing her brilliance — No. 1 in high school, No. 1 at Princeton, editor of Yale Law Review — her academic career appears to have been a fraud from beginning to end, a testament to Ivy League corruption. Read More…