Potential Souter Supreme Court Successors Already Under Attack

by Kilian Melloy
Friday May 1, 2009

Less than a day after reports surfaced in the media that liberal Supreme Court Justice David H. Souter plans to retire, right-wing attacks began on several jurists thought to be likely nominees for the Obama administration.

A May 1 posting at Politico included a memo reported to be "circulating on the right" that identified three individuals and offered talking points on each for use by opponents.

The memo, written by "A conservative politico likely to work on the coming judicial nomination battle" focused on Solicitor General Elena Kagan and judges Sonia Sotomayer and Diane Wood.

Kagan, being Solocitor General, is the most obvious possibility for an Obama pick to succeed Souter. The memo went after Kagan first, citing her "complete lack of judicial or appellate experience," and noting that the Solicitor General "has never been a judge or even argued a case in a court of appeals. "

Moreover, the memo argued, Kagan "has taken positions that are disturbingly out of the mainstream," citing her opposition to the military ban on openly gay troops and her defense of colleges that sought to keep military recruiters off their campuses due to the ban's conflict with college policies forbidding discrimination based on sexual orientation.

The memo further questioned Kagan's suitability by expressing concern that Kagan might not "be an adequately independent check on executive excesses" were she to be confirmed to the Supreme Court, and claimed that Kagan's support of strong presidential authority in matters of government is alarming "in light of" what the memo called "President Obama's unprecedented centralization of power in the White House."

The memo also called Kagan out on her own stated philosophy toward Supreme Court nominees: "Dean Kagan has argued that nominees to the Supreme Court should undergo a searching inquiry into the nominee's substantive views of the law, and should comment particular issues.

"If nominated, it will be interesting to see whether Dean Kagan remains faithful to this prescription in answering the Committee's questions," the memo said.

Judge Sotomayor was characterized by the memo as having a "hard-left record" from her tenure in the Court of Appeals. The memo also called Sotomayor "one of the more liberal judges" whose "personal views may cloud her jurisprudence" because, the memo warned, "Sotomayor explained [that] she believes it is appropriate for a judge to consider their 'experiences as women and people of color' in their decision making, which she believes should 'affect our decisions.'"

The memo also claimed that Sotomayor may not have the "temperament" to serve as a good Supreme Court Justice, saying that lawyers who have dealt with the judge found her to be "a bully" given to "abus[ing] lawyers."

Similarly, the memo called the record of Judge Diane Wood into question, saying that Wood would need to answer [questions] regarding her judicial philosophy based on her work as a circuit court judge," and claiming that, "Judge Wood's judicial views have on occasion been far outside mainstream legal thought and appear driven by her personal policy views."

In support of that claim, the memo cited a case in which Wood made use of RICO provisions in dealing with a legal case involving anti-abortion activist Randall Terry, the founder of Operation Rescue.

The memo also targeted Wood as an opponent to religious groups, citing her dissent in a 2006 case in which a student organization, the Christian Legal Society, sued following the loss of its status as a student organization at Southern Illinois University due to the group requiring that its officers and voting membership live by a "statement of faith" that condemned heterosexual sex outside of marriage, and all homosexual sex.

At the time, critics of judge Wood also noted that her dissent appeared to promote the University's institutional policies above First Amendment guarantees.

Wrote Wood, "...even if SIU's AA/EEO policy somehow infringes upon a First Amendment right of CLS or its members, that infringement may be justified if it is in furtherance of a compelling state interest, or, at the least, must be balanced against the harm to SIU from being forced to accept into its expressive association a group that undermines its message of nondiscrimination and diversity."

Solicitor General Kagan was attacked earlier this year, as soon as President Obama nominated her for the post.

A Jan. 30 Washington Times op-ed piece by Yale graduate Flagg K. Youngblood painted Kagan, then a dean at the Harvard Law School, as anti-military and a proponent of "a radical leftist agenda," calling Kagan "anti-student" for having resisted the military's desire to recruit at the Harvard campus, despite the conflict that the military's anti-gay policy would generate, given University protections for all students regardless of sexual orientation.

Wrote Youngblood, an Army veteran who serves the Young America's Foundation as the Director of Military Outreach,"Kagan's staunch ideological opposition to the military and providing qualified students the opportunity to serve puts her well outside of the mainstream."

Youngblood's article castigated Kagan for calling the so-called Solomon Amendment, which denies federal funding to schools that refuse to allow the ROTC on their campuses, "immoral." The Youngblood article went on to call Kagan's nomination a possible example of "special interest, aimed at protecting the Ivy League's out-of-touch elitism at the expense of students, taxpayers, and our military alike."

If the article written by Yale grad Youngblood carried an air of Harvard/Yale rivalry, it was answered in the pages of the Washington Times the following week, with the Feb. 5 publication of a letter to the editor from three Harvard students, veterans all, who declared, "we believe that Flagg Youngblood's referring to Dean Elena Kagan as an 'anti-military zealot' is a gross mischaracterization."

Wrote the letter's authors, Erik Swabb, Geoff Orazem, and Hagan Scotten, "Like Mr. Youngblood, we support military recruiting on campus and hope that the Obama administration vigorously defends the Solomon Amendment.

"However, this position has not diminished our appreciation for Miss Kagan's embrace of veterans on campus," the trio of veterans went on, adding that Kagan had seen to it that a Veterans Day Dinner had become an annual tradition at Harvard Law School for veterans and their spouses.

The three veterans praised Kagan's other efforts at acknowledging and celebrating the contributions of the school's veterans. "Under her leadership, Harvard Law School has also gone out of its way to highlight our military service, publishing numerous articles on the school Web site and in alumni newsletters.

"These are not actions of an 'anti-military zealot,' and greater care should be exercised before someone is labeled as such," the trio of Iraq War veterans added.

Kilian Melloy serves as EDGE Media Network's Assistant Arts Editor. He also reviews theater for WBUR. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.


  • , 2009-05-01 19:35:46

    Good God, little boy. Did you just arrive here in America? There is no more contentious political battle in this nation than for a new Justice. It has been that way for CENTURIES, son. If it happens that there is a leftist president, the right immediately attacks what it views as the most dangerous possible nominees, and if there is a rightist president, the left attacks just as savagely. Perhaps you were out of your diapers back when Clarence Thomas was lynched by the left in one of the ugliest displays of character assassination in U.S. history. Maybe someday you might be able to write a balanced news article, but as long as you have your little pep club pompoms on dancing around the bonfire in an estrogen-laced excess of partisan spirit, you’ll never be anything but a hack writer.

  • purplesax, 2009-05-04 08:42:11

    Clarence Thomas wasn’t lynched by the left. "Long dong" Thomas was a sexual predator. Anita Hill, his victim, got the lynching by the rabid rightwing. It would never happen; but I would love to see Anita Hill appointed to the Supreme Court. It would finally be payback time.

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