As everyone in the galaxy knows by now, President Obama has nominated Elena Kagan to replace John Paul Stevens on the Supreme Court. Progressive queasiness about Kagan, combined with the fact that Stevens has been the most robotically liberal member of the Court, suggests that Kagan’s nomination could be good news for the constitutional challenge to Obamacare.
Don’t misunderstand me. Kagan is no moderate. In 2004, she kicked military recruiters off the Harvard campus, indicating that she is in lockstep with the Lefty ideologues who dominate American academia. But there is a silver lining to that decision, which was later overturned by the very Court on which she will soon occupy a seat—-it showed her to be an incompetent advocate:
Critics say Kagan’s legal arguments on the matter are so preposterous that they raise doubts about her ability to serve on the bench.
How, you ask, is that good news? Well, John Paul Stevens has many faults, but incompetence is not among them. He has been a strong, and often persuasive, voice for the progessive point of view. Kagan, on the other hand, will be out of her depth among the other Supremes. In other words, Obama is replacing a strong liberal justice with a weak one.
Obviously, the chances for the Obamacare challenge would be better if Stevens were replaced with a conservative justice—-but that isn’t one of our choices. As long as Obama is in the White House, we’re going to get liberal Supreme Court nominees. That’s just a fact of life. So, all other things being equal, we’re better off with mediocre Lefties on the Court than smart ones.
Many experts expect the Court to take a dim view of Obamacare, particularly its individual mandate and usurpation of state prerogatives. And Kagan’s record on the Harvard recruiter case suggests that any argument she makes on behalf of these dubius provisions will be far less persuasive than anything Stevens would have produced. That’s all to the good.
Post a Comment