You can be sure I’ve been studying the history behind Supreme Court nominee Elena Kagan, digging deep into whatever scant evidence exists on how she’ll interpret the Constitution. As an originalist, I can assure you I don’t like what I see. She is potentially a 40-year life insurance policy for President Obama’s radical policies and ideas. Only a year and a half into his failed presidency, and possibly already a lame duck, Barack Obama knows his controversial governing will likely come under pressure in the Supreme Court, especially when he loses the House and possibly the Senate in November, never mind his presidency in 2012.
You need to know that 30 years ago as an undergraduate at Princeton, Kagan entitled her senior thesis “To the Final Conflict: Socialism in New York City, 1900–1933.” In it she wrote, “Why, in a society by no means perfect, has a radical party never attained the status of a major political force? Why, in particular, did the socialist movement never become an alternative to the nation’s established parties?”
Kagan clerked for the late liberal justice Thurgood Marshall, who said, “You guys have been practicing discrimination for years. Now it’s our turn.” I read this quote in radio talk show host and legal scholar Mark Levin’s book Men in Black, which cites The Court Years, 1939–1975: The Autobiography of William O. Douglas as the source. Levin also quotes Justice Marshall as stating, “You do what you think is right and let the law catch up.”
I looked up the source for this last quote and discovered that of all people, Cass Sunstein, Obama’s regulatory czar and author of Nudge, was also a former clerk for Justice Marshall and doubts the veracity of this statement by his former boss. By doubting the “veracity,” Sunstein apparently wants to nudge readers into thinking it was never spoken. Yet two other independent sources (both law clerks to Justice Marshall) provide confirmation that such a statement was made.
Kagan is another Sunstein—a progressive in the Obama administration, nurtured on the radical view of the Constitution held by Thurgood Marshall. She will make the same type of constitutionally abhorrent decisions that Marshall made to push the progressive agenda. I’ve been writing to you about Change for America: A Progressive Blueprint for the 44th President and its radical contributors such as Van Jones. Would it surprise you that Elena Kagan wrote the chapter “White House Counsel,” drawing from her experience with the Clinton administration? It was Kagan who encouraged Clinton to go around Congress to use his power over government agencies to push his agenda. Sound familiar? Her views would absolutely support Obama’s government attack on free markets using the FCC, EPA, unions, and more.
In fact, in the 2001 article “Presidential Administration,” which was named that year’s top scholarly article by the American Bar Association, she explains that a progressive president needs control over these agencies to push his progressive goals. “Clinton showed that presidential supervision could jolt into action bureaucrats suffering from bureaucratic inertia in the face of unmet needs and challenges.” The scholars just love her. The majority of Americans, I assure you, will not.
Kagan is a progressive close to a lifetime appointment with no accountability for straying well beyond the strict confines of the Constitution. Clearly this is someone Obama trusts to stand up for his radical policies and ideas. And with her confirmation, America will take one step closer to tyranny.
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