Tag Archives: conservatives

The Kagan Nomination: What Matters, What Doesn’t

One of the criticisms being hurled at Elena Kagan from the right is that she might be a lesbian. This concerns me.

Not the lesbian part; few things are less important to one’s judicial qualifications. My worry is that Republicans have so atrophied intellectually that this is their loudest reason for opposing her.

A thoughtful soul (I forget who) recently remarked that twenty years from now, almost everyone currently on the wrong side of gay rights issues will be embarrassed to admit it. Yet the obsolete epithets being hurled at Kagan — which may or may not be accurate, and frankly, who cares — are what many of Kagan’s opponents seem to care about the most.

And people wonder why I often take visible offense when someone tries to call me a conservative.

There are substantive reasons to be skeptical about Kagan. One of them is how she views the executive branch. “She is certainly a fan of presidential power,” one scholar remarks. This is important.

Chief Justice Roberts has similar views. He was picked in part because the Bush administration knew he wouldn’t strike down that administration’s more controversial power grabs. Harriet Miers was not rejected for her views, which are utterly conventional. Her nomination was only struck down because her lack of subtlety in expressing those views was considered gauche.

While I have never been an Obama fan, one of my hopes for his administration was that he would repudiate Bush-era excesses such as the PATRIOT Act. He embraced them instead. Having all those cool powers at his disposal was just too much to pass up.

President Obama’s Supreme Court nominees so far seem no different from Roberts or Miers: what the other branches of government want, they shall get. The exceptions, such as the Citizens United decision, are so rare that they garner weeks worth of headlines; such outbursts must be kept to a minimum. Hence Kagan.

What the Supreme Court needs is a healthy dose of judicial activism. Kagan, like Roberts, Sotomayor, and other recent nominees, is a judicial passivist. They reflexively defer to the executive and legislature, right or wrong.

What we need are Justices who will stand up and say “no” when Congress passes a law that is unconstitutional, or when the president abuses his powers. That’s why judicial review exists in the first place. This tradition goes all the way back to Marbury v. Madison, often the very first case that students read in undergraduate constitutional law classes.

As Kagan goes through the pomp and circumstance of the confirmation process, maybe she’ll prove better than her likely soon-to-be colleagues. Maybe she won’t. But so long as her Republican opponents are fixated on something so trivial as her sexual orientation, we may never find out. Given her relative youth, three decades or more of jurisprudence are at stake.

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Advice to Tea Partiers

I have mixed feelings about the tea party movement. On one hand, it is wonderful that there is a large and vocal constituency agitating for lower taxes and lower spending. And while many tea partiers are appropriately wary of the Republican party, they certainly seem to skew conservative. And conservatives are no friends of limited government.

John Samples from Cato nails my sentiments exactly in the video below. Here is a list of his main points:

1. Republicans aren’t always your friends.
2. Some tea partiers like big government.
3. Democrats aren’t always your enemies.
4. Smaller government demands restraint abroad.
5. Leave social issues to the states.

Hayek’s Uneasy Relationship with Conservatives

Bill Easterly does a good job of sticking up for Hayek.

Hayek could be quite different than Hayekians. That distinction needs to be made in this era of tea parties and the dominant liberal-vs.-conservative false dichotomy.

I think it’s great that some conservatives are boosting Hayek (I wish progressives would, too; they’d find a lot to like). It just appears they aren’t reading him very closely. Do bear that in mind before associating Hayek with conservatism.

Worth reading: Hayek’s essay, “Why I Am Not a Conservative.” Print it out. Read it closely. Mark up the margins with your notes and reactions. Agree or disagree, this essay rewards deep and careful thought. I’ve read it several times over the years, and every time I pick it up again I learn something new.