Posted on May 31, 2010

by

Daniel Clark

The flimsy resume of Supreme Court nominee Elena Kagan has led pundits on both sides of the political aisle to ask whether she will become the next Harriet Miers, referring to the Bush nominee who withdrew herself from consideration amid concerns about her lack of experience. That comparison is flawed, though, because it presumes that similar credentials are required for the nominees of both liberal and conservative presidents.

Miers' nomination was doomed by the fact that she needed the support of President Bush's conservative base, who demanded reassurance that the nominee would be faithful to the written law. That requires a demonstrated understanding of the Constitution, and a proven ability to interpret it with precision. A liberal like Kagan, however, does not need the support of conservatives, and was not appointed by President Obama with any expectation that she accurately apply the Constitution as written.

Especially when it comes to the judiciary, liberals assume a posture of intellectual superiority over their conservative peers. This was illustrated most vividly when the late senator Ted Kennedy called Bush's judicial nominees "Neanderthals." To the contrary, it takes far more intellectual discipline to objectively determine the constitutionally correct result of a case than it does to rhetorically plot a path to one's own preferred outcome.

The whole concept of a "living Constitution" is a tribute to the liberal ego, for it is liberal judges who bring it to life. As far as they are concerned, they have created the monster, and only they can destroy it, so their wish is its command. That's why it only transforms itself in such ways as to advance the liberal agenda.

As long as five or more liberal justices are in agreement, their sophistry doesn't even need to be persuasive. Take, for example, the majority opinion in Planned Parenthood v. Casey. Out of their desperation to justify upholding Roe v. Wade, the justices actually argued that, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mysteries of human life." Why go through all the trouble of constructing a constitutionally defensible argument, when your supporters will applaud vacuous, new age flumdummery like that?

Lacking a coherent constitutional rationale to protect the legality of abortion, the liberals on the Court chose to shelter it with infinite concentric circles of stupidity. Under their rules, you can't even begin to discuss the meaning of human life until after you've established the definition of "meaning." This itself is futile, because anyone else's definition is just as good as yours. If some liberal says that "meaning" is a nocturnal, tree-dwelling marsupial, that answer is presumed not to be wrong, but only different.

Can anybody truly believe that, in any legal context, there can be a "right to define one's own concept … of meaning"? Perhaps in addition to "it depends on what the meaning of the word 'is' is," Bill Clinton should have said, "it depends on what 'mean' means." It would follow that, if he was at liberty to define his own concept of meaning, then "is" could "mean" anything he wanted it to.

Maybe this is why liberals think conservative judges are simple-minded. If each individual has the right to his or her own definition of the universe, then there can be no objective truths, but only competing definitions. Therefore, anyone who expends a great deal of effort in pursuit of the truth is a fool, which makes strict constructionist and originalist judicial philosophies nothing more than legal wild goose chases.

Whereas conservatives wanted to know how Miers thinks, liberals are only interested in how Kagan feels. President Obama himself explained this when he cited "empathy" as a major qualification for a Supreme Court justice. "Empathy" is just his euphemism for judicial activism, and it has no prerequisite other than a willingness to exercise it. The justices feel that a certain right should be created or taken away, and they make it so, even if their reasoning sounds less like a legal opinion than like an inane self-help seminar.

Because liberals internalize their judicial philosophy, they need no credentials that originate outside of the self. There's no point in requiring constitutional expertise or sound logic, when they have no intention of using those things anyway. As long as Kagan convinces Senate Democrats that she's a good liberal, the only thing she needs to be an expert about is Elena Kagan -- and who could dispute that she is?

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