- The Washington Times - Friday, May 14, 2010

ANALYSIS/OPINION:

President Obama is subverting the Supreme Court. His latest pick for the high court, Solicitor General Elena Kagan, is a radical leftist who would rubber-stamp Mr. Obama’s transformative socialist agenda. She is not an independent, serious nominee, but an Obama ideological clone.

The Supreme Court is the nation’s highest legal body. It represents the apex of a separate branch of government designed to serve as a pivotal check and balance against the executive and legislative branches. A functioning democracy based on the rule of law depends upon an independent judiciary - especially, a Supreme Court immune from the corrosive grasp of political power.

This is why dictators and socialist autocrats often seek to control their nations’ supreme courts: By imposing their will on the high court they can bend the nation’s judiciary to submit to their rule. Dominating the high court removes a major institutional bulwark to consolidating state power. Hence, our Founding Fathers believed that Supreme Court justices should be individuals of the highest intelligence, character, moral integrity, political independence and fair-minded temperament. They are not - and should never be - partisan hacks.

Ms. Kagan is unfit to sit on the high court. She is an incompetent apparatchik, whose only purpose is to blindly advance Mr. Obama’s revolutionary progressivism. She possesses no judicial experience; never once being a judge. Her litigation background is thin. She is neither an accomplished lawyer nor jurist. She is no Oliver Wendell Holmes.

Her liberal defenders insist Ms. Kagan has a first-rate legal mind. She is an academic, having served as dean of Harvard Law School. This supposedly qualifies her to be on the Supreme Court. It does not. Unlike other constitutional scholars, Ms. Kagan has not written any books. Her body of written work is sparse and shallow. Besides several articles and book reviews, she has produced nothing of consequence. She is a mediocre bureaucrat, who has excelled mostly at climbing the greasy pole of academic politics.

Moreover, Ms. Kagan was a corrupt administrator, who turned a blind eye to plagiarism by prominent Harvard faculty members. Confronted by overwhelming evidence that scholars Laurence Tribe and Charles Ogletree - two leading liberals on campus - had pulled word-for-word, direct material from other authors, she effectively gave them a slap on the wrist. If students had committed the same offense, they would have been rightly suspended or expelled. She oversaw the creation of a two-tier system: one set of rules for leftist academics, another one for the student body.

As dean, she prevented military recruiters from coming on campus. The reason: She opposed the “Don’t ask, Don’t tell” policy on homosexuals serving in the military. Her active opposition to military recruitment took place during a time of war. American troops were fighting - and dying - in Iraq and Afghanistan. They needed every soldier and official possible. Ms. Kagan’s dogmatic liberalism trumped patriotism.

The real - and only - reason Ms. Kagan has been selected is that she is a partisan ideologue. She worked as a policy aide under the Clinton administration. She is Mr. Obama’s solicitor general, arguing the administration’s cases before the Supreme Court. Abortion, gay rights, affirmative action, school prayer, the war on terror, the constitutional legitimacy of Obamacare - she will vote the Obama line on every issue.

Ms. Kagan is not simply a traditional liberal. Like her master, Mr. Obama, she seeks to erect a European-style socialist state. She is anti-capitalist. Her undergraduate thesis discussed the glories of socialist agitation in America during the early part of the 20th century. She celebrated their goal of overthrowing the free-market system.

She is also a staunch supporter of European-style “hate speech” laws. In a 1996 article in the University of Chicago Law Review, Ms. Kagan called for the “redistribution of speech.” Repeating the arguments of the European left, she called for the government to restrict or prohibit speech that might cause “harm,” either directly or by inciting others to commit violence. In other words, protected classes - gays and lesbians, Muslims, minorities, women - should be given privileged status against the claims of free speech. Such hate speech laws have been used to delegitimize and criminalize conservative opinions.

In that same article, Ms. Kagan also argues that the government has the “right” to “unskew” an “overabundance of ideas” in the marketplace. In other words, if there is too much of an idea that the ruling liberal elite does not like, then speech can be “redistributed” to ensure a more “level playing field.” It echoes the left’s long-held goal of smashing the dominance of conservatives on talk radio.

Western liberalism is sliding towards an embrace of multicultural tyranny. In Europe, soft totalitarianism is becoming a reality - Christianity is being purged from the public square; real conservative opinion is being marginalized; statism is becoming entrenched. The Trojan horse for this assault on human freedom has been so-called hate-speech laws. Through the use of an imperial judiciary, leftist activists are engaging in a massive social-engineering experiment.

The same is now occurring in America. If Ms. Kagan is confirmed, Mr. Obama will be one step closer to reshaping the Supreme Court in his image. His first pick, Justice Sonia Sotomayor, the “wise Latina,” is doing his bidding. Ms. Kagan is next. Mr. Obama is slowly turning us into Europe. Once he stacks the Supreme Court with a majority of justices, his revolution will be complete. And traditional America will be no more.

Jeffrey T. Kuhner is a columnist at The Washington Times and president of the Edmund Burke Institute, a Washington think tank. He is the daily host of the “Kuhner Show” on WTNT 570-AM from noon until 3 p.m.

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