By Kent Ostrander
Imagine you are accused of a crime and are heading to court. Your attorney is well educated, capable and has demonstrated passionate action in other cases. Most important, you know you are innocent and have several key arguments to vindicate you.
Then, while sitting with unflagging confidence on the first day in court, you are stunned when your attorney asks to approach the bench, speaks to the judge and says, "My client is guilty, Your Honor. What shall we do?"
That is one nightmare. Cold sweat anyone?
Unfortunately, this rude awakening has just happened in Washington. And worse, America is still fast asleep. The attorney in this case is currently being promoted to the U.S. Supreme Court.
Elena Kagan is President Barack Obama's handpicked solicitor general. As such, her job is to defend congressional law from those who would challenge it. She is Congress's attorney.
In 1996, Congress passed the Defense of Marriage Act overwhelmingly, 342-67 in the House and 85-14 in the Senate. DOMA did two things: established that marriage is between one man and one woman for the federal government's purposes and honored the sovereignty of individual states not to have to recognize marriages defined differently from other states.
A lawsuit filed by several same-sex couples recently married under Massachusetts' law arrived on the desk of U.S. District Court Judge Joseph Tauro. It was there that the solicitor general's office rolled over. According to Tauro, the Department of Justice attorneys under Kagan "disavowed Congress' stated justifications" for the law.
No defense was made. Can you say "legal malpractice?"
Yet the defense had already been outlined. DOMA actually had its four-point rationale itemized by Congress. (Imagine that in this era of "we have to pass it to find out what's in it.") The four points? To encourage responsible procreation and child-bearing, defend and nurture the institution of traditional heterosexual marriage, defend traditional notions of morality and preserve scarce resources.
Still the DOJ attorneys withdrew. Why the no-show in court? Bluntly, because Kagan does not support the rule of law, only her interpretation of what the law should be. Why else did she as dean of Harvard Law School throw military recruiters off campus — by any standard an extreme judgment upon those who have demonstrated with their lives their oath to uphold the Constitution? She says she personally objected to the "don't ask, don't tell" policy.
Kagan is a smart woman, and though never a judge, a determined, focused person with strong opinions, qualifications of a passionate activist or militant, not a Supreme Court justice.
Our nation seems to be crossing some metaphysical line downward with this nomination. We have already been learning the downside of a "community organizer" in the nation's highest office; must we now also learn about a true "political activist" on our highest court?