The word has come forth unto the nation, and the Fat Lady is singing. Our next Supreme Court Justice, replacing Justice John Paul Stevens, will be Elena Kagan, now Solicitor General and former Dean of Harvard Law School. The usual diversity-loving suspects are all for her.
We, on the other hand, are having our usual trouble understanding the views of our betters. Evidently, in the name of “diversity” we are now to have a Supreme Court that is Protestant-rein, consisting of six Catholics and three Jews, all of whom went either to Yale or Harvard. ‘Scuse us for asking, folks, but is that what you call “diversity”? We don’t support the idea that there should be seats on the high court reserved for this or that religion or race, as it was in the old days. But on the other hand, creating a judicial lineup that excludes all members of the country’s largest denomination, does seem a bit odd.
Since this blog is primarily about eminent domain, we cannot fail taking note of a “the-little-man-who-wasn’t-there” aspect of this nomination. The New York Times, of May 10, 2010, Obama Said To Pick Kagan For Opening On Top Court, at p. A15, provides its readers with a table listing the current hot topics, and reporting what Kagan’s views might be on those. Here they are:
Don’t Ask, Don’t Tell; Defining “Combatants;” Responding to Partisan Questions; Presidential Powers; Constitutional Theory; Wiretaps Without Warrants; Abortion; Judicial Activism; The Second Amendment; Death Penalty, and Same-Sex Marriage.
What’s missing?
Yes indeed. No trace of eminent domain as an issue worthy of consideration. Mind you, as far as popular feelings are concerned, eminent domain, particularly after the Kelo case, has been a topic roiling the American public to a greater extent than any other — around 90% of Americans are opposed to that holding. But evidently, in the eyes of the bien pensant folks who mean to run our lives, it isn’t worth mentioning.
The courts have been telling us that if we don’t like the judge-made rules of eminent domain law, we should vote for legislative folks more in tune with the prevailing public view of the use and abuse of eminent domain, and more likely to reform the law of eminent domain legislatively. Good idea. Let’s vote the rascals out.
Follow up. So now it turns out that once Elena Kagan is confirmed, three out of the nine U.S. Supreme Court justices — Ginsburg, Sotomayor and Kagan — will be from New York. Diversity. Ain’t it wonderful? Actually, make that four justices. Justice Scalia, though born in New Jersey, moved to New York (Queens) at a tender age and was educated there.
Second follow up. Check out the column by Professor Jonathan Turley, in today’s Los Angeles Times, May 12, 2010, at p. A17, entitled It’s Their Private Court. Our favorite quote is Turley’s observation that the justices view the process of getting on the court “as if it were the judicial equivalent of graduating from Hogwarts School of Witchcraft and Wizardry.” For Turley’s entire op-ed piece go to http://www.latimes.com/news/opinion/commentary/la-oe-turley-supreme-court-20100512,0,811795.story
Turley quotes Justice Scalia, speaking at the American University Law School, where he informed a student that she should not expect to be considered for a Supreme Court clerkship given the law school she attended.
When you put it all together, it’s appaling that these are the people who get to lecture the rest of us about the wonders of “diversity.”
Third follow Up. For an interesting commentary on the symbolic and historical significance of the departure of the last Protestant from the Supreme Court, see Robert Frank, That Bright, Dying Star, the American Wasp, Wall Street Jour., May 15, 2010, at p. A3. The conclusion is that people who have it too good for too long a time, lose those very qualities that made them great to begin with. Frank quotes Jamie Johnson, a documentary film maker and heir to the Johnson & Johnson fortune as saying, “The generations of affluence bred a certain kind of casual pasive approach to life and wealth building. Lots of people just got lazy.” Which, come to think of it, applies to 21st century America as well.