THEIR PROFESSION SHOULD BE THE ISSUE BUT ISN'T:

Kagan and the power elite (Renée Loth, May 22, 2010, Boston Globe)

Senator John Cornyn of Texas, a Republican member of the Judiciary Committee, complained last week that President Obama had chosen “another person from an elite law school here on the East Coast’’ when there are qualified law graduates “in the heartland’’ who should have been given a chance.

Jeff Sessions of Alabama, the ranking Republican on the committee, said he was concerned that Kagan “might be the kind of judge that often are quite favored in places like the Harvard faculty,’’ meaning activist liberals.

A widely circulated essay in Time magazine questioned whether the court’s Ivy League complexion might “risk undermining our high court’s intellectual diversity and encourage the kind of elitism that’s anathema to a democracy.’’

This faux populism is especially galling coming from Republicans, who were notably unconcerned about elitism on the court when the nominees were John Roberts, Antonin Scalia, or Anthony Kennedy (Harvard law grads all). Not to mention Samuel Alito or Clarence Thomas (Yale).

But it touches a chord with many Americans, who distrust elites — with the exception of sports stars. The antipathy is a strain in the national psyche easily exploited by culture warriors such as Sarah Palin and Rush Limbaugh, who polarize the country into pointy-headed intellectuals and “the rest of America.’’ Limbaugh stuck to the script this week, calling Kagan “a liberal elitist’’ who has “no clue how real Americans live.’’

Of course, given an opportunity to support a conservative justice who understands real life Mr. Limbaugh instead chose to blow up the GOP, Holding Court: There's a crackdown over Miers, not a "crackup." (RUSH LIMBAUGH, October 17, 2005, WSJ)

We conservatives are never stronger than when we are advancing our principles. And that's the nature of our current debate over the nomination of Harriet Miers. Will she respect the Constitution? Will she be an originalist who will accept the limited role of the judiciary to interpret and uphold it, and leave the elected branches--we, the people--to set public policy? Given the extraordinary power the Supreme Court has seized from the representative parts of our government, this is no small matter. Roe v. Wade is a primary example of judicial activism. Regardless of one's position on abortion, seven unelected and unaccountable justices simply did not have the constitutional authority to impose their pro-abortion views on the nation. The Constitution empowers the people, through their elected representatives in Congress or the state legislatures, to make this decision.

Abortion is only one of countless areas in which a mere nine lawyers in robes have imposed their personal policy preferences on the rest of us. The court has conferred due process rights on terrorists detained at Guantanamo Bay and benefits on illegal immigrants. It has ruled that animated cyberspace child pornography is protected speech, but certain broadcast ads aired before elections are illegal; it has held that the Ten Commandments can't be displayed in a public building, but they can be displayed outside a public building; and the court has invented rationales to skirt the Constitution, such as using foreign law to strike down juvenile death penalty statutes in over a dozen states.

For decades conservatives have considered judicial abuse a direct threat to our Constitution and our form of government. The framers didn't create a judicial oligarchy. They created a representative republic. Our opposition to judicial activism runs deep. We've witnessed too many occasions where Republican presidents have nominated the wrong candidates to the court, and we want more assurances this time--some proof. The left, on the other hand, sees the courts as the only way to advance their big-government agenda. They can't win national elections if they're open about their agenda. So, they seek to impose their policies by judicial fiat. It's time to call them on it. And that's what many of us had hoped and expected when the president made his nomination.

Some liberal commentators mistakenly view the passionate debate among conservatives over the Miers nomination as a "crackup" on the right. They are giddy about "splits" in the conservative base of the GOP. They are predicting doom for the rest of the president's term and gloom for Republican electoral chances in 2006. As usual, liberals don't understand conservatives and never will.

The Miers nomination shows the strength of the conservative movement. This is no "crackup." It's a crackdown. We conservatives are unified in our objectives. And we are organized to advance them. The purpose of the Miers debate is to ensure that we are doing the very best we can to move the nation in the right direction. And when all is said and done, we will be even stronger and more focused on our agenda and defeating those who obstruct it, just in time for 2006 and 2008.

Though I don't recall Mr. Limbaugh, like the neocons, complaining that she wasn't elite enough.

Posted by Orrin Judd at May 22, 2010 12:30 PM