Sunday, May 16, 2010


Look, I am a hard core, dyed in the wool right wing conservative who happens to be registered as a Republican.

I am also a strict Constitutionalist...I mean strict.

I believe our framers were inspired to invent a country like no other country that had ever been in the history of the universe.

Their forsight and understanding of human nature and the nature of government was phenominal beyond words and beyond most peoples' imaginations.

It is with that perspective that I now address the issue of the nomination of Elena Kagan to the Suprene Court of the United States.

My title asks the question, "Is she qualified?"

Well...what does the Constitution have to say about the qualifications of a Supreme Court member? You can read it below, or HERE.

Article. III Section. 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. Section. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State [Note: this section has been superseded or amended.];--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. Section. 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Notice that there is nothing in there about qualifications.

That is why, "Is she qualified?" is an irrelevant question.

The question should be: "Is she appropriate to serve a court whose job it is to uphold and defend the concepts that surround that which constitutes The United States of America.

The answer to that question is yet to be.

From what I have read of her works (which is not much...I haven't had the time, yet), she holds to the view that the Supreme Court should adjust the meaning of the Constitution according to the needs of the times.

If that is the case, then the answer to the afore posed question is an emphatic "NO!"

But I doubt that she's worried about that. Neither are politicians in general and liberals in particular.


Anonymous said...

Excellent post, Joe!

I too am a strict constitutionalist, and you had me hooked in there for a minute.

You make a great point.

Joe said...

Silverfiddle: If we try to take the approach that she is unqualified, we lose automatically. Constitutionally, the milk-man could be appointed to the Supreme Court (except that we don't have milk-men any more).

We need to focus on her activist mentality.

ablur said...

The roll of the Supreme Court is to interpret the law based on the Constitution. Not interpret the Constitution on the basis of the law.

If I was to place a qualification on the position it would require a person to quote and/or site various sections and give us a perspective of the pros and cons as argued by those who developed the portion of the constitution sited.

I would prefer clear understanding of the constitution and the arguments that gave us such a fine document.

Joe said...

ablur: We don't get to set the qualifications. However, that being said, I certainly agree that we need a person who understands and sides with the Constitution every time.

ablur said...

Perhaps this is one of the failings of the founders. Perhaps their humility didn't push them to make a requirement of the justices that would have sounded like my qualification. A constant reminder of history and its wins and loses may have kept our country on a pure course.

Joe said...

ablur: I think the framers had confidence in the three tiered system of checks and balances they established. They did not, however, hope for a country run by professional politicians.

Ginsu said...

Any fool can make a rule and any fool can mind it.

Joe said...

Ginsu: Interesting response. Is that a brand new old saying or did it come from Ben Franklin?

Z said...

good post, Joe, thanks.

What puzzles me is that Harvard ROTC thing; she sided against having them on campus due to HER OWN BELIEFS about Don't Ask Don't Tell. Am I missing something or shouldn't that just be plain WRONG?
We have a president who suggests that the justice nominees should bend to the will of congress and the people, so we can't be surprised about ANYTHING, can we...

Ginsu said...

Joe, it actually came from Henry Thoreau. He is quoted frequently, including: Martin Luther King, Jr, Autobiography... "I became convinced that noncooperation with evil is as much a moral obligation as is cooperation with good. No other person has been more eloquent and passionate in getting this idea across than Henry David Thoreau. As a result of his writings and personal witness, we are the heirs of a legacy of creative protest." - Right on!

Joe said...

Z: Yeah. She is a puzzel to me from the get-go. I have a gut feeling that she is big trouble.

Ginsu: Yipes! I should have remembered that! Thanks for the clarification.

commoncents said...

Thank You for posting! Your blog rocks!!!

Common Cents

ps. Link Exchange???

Leticia said...

Bravo on this post!!

I don't like the fact that she is clearly anti-military. She is liberal activists and would be a voice and help to many diverse groups AND she is a socialist.

So, with that tidbit of information she does not belong on the bench.