July 3, 2010
Shooting Hoops with Kagan
Often when I introduce myself as a Kentuckian and a Louisville native, the first question asked of me is whether I root for the University of Louisville or the University of Kentucky...in basketball, of course. (Is there really any other sport in Kentucky?) Here, our blood runs Cardinal red or Wildcat blue. Feuding among friends and neighbors about basketball is as much a part of the culture as southern fried chicken and thoroughbreds, and it can range from hospitable banter to downright hostility.
It is among these friends and neighbors (especially the liberal ones), when the conversation turns to politics, that I sometimes look for analogies with the sport -- a common language that helps us better appreciate each other's perspectives.
A comparison between the confirmation of Elena Kagan to the Supreme Court and the promotion or appointment of an NCAA official is a revealing exercise. I would think that some of the criteria used to judge suitability and experience for an official position high in the ranks of the NCAA should encompass the very general areas I've created below. (Mind you, this imaginary list assumes that the overriding and primary qualification would be actual reverence for the NCAA and adherence to its regulations. One hopes that only a person who really loved sports and the rules that actually make the games fair would even apply for the job.) Next to each, I've attempted to draw a parallel to Kagan by highlighting a key element of her thin record.
Plays by the rules. Ben Shapiro noted that when Dean Kagan refused to allow military recruiters on Harvard Law's campus, "She decided not to comply with the law because she was hoping that the Defense Department would be okay with her failing to comply with the law," and she reversed course only when she ran out of leverage.
Uses facts rather than bias to support decisions. The title of Shannen Coffin's NRO article, "Kagan's Abortion Distortion: How the Supreme Court nominee manipulated the statement of a medical organization to protect partial-birth abortion," is self-explanatory.
Applies the rules fairly and consistently. As Dean of Harvard Law, Kagan let two professors found guilty of plagiarizing off the hook.
Promotes knowledge of the rules. In 2006, Kagan eliminated the requirement of a constitutional law class for graduation from Harvard Law.
Respects the rules. Kagan's "judicial hero" is Israeli Supreme Court Justice Aharon Barak, described by Judge Richard Posner as "one of the most prominent of the aggressively interventionist foreign judges," who is "[a]rmed with such abstractions as 'democracy,' 'interpretation,'... and (of course) 'justice', [so that] the judiciary is a law unto itself."
It is difficult to envision a basketball tournament in which the officials observe the NCAA regulations the way Kagan seems to understand and view the Constitution and the role of the Supreme Court. Imagine playing in an athletic competition without confidence that officials will apply the written rules equally to all the players, or with the sport overseen by "activist" judges who instead look for "rights" and "fairness," based on factors such as racial or ethnic quotas, the wealth or history or position of the respective colleges, the regulations of foreign countries, mainstream popularity, or other empathetic ideals. Why hold the tournament at all when it begins to seem as though the governing body will designate winners and losers at a whim?
Of course, it's not just Kagan who is infected with this apparent disdain for the law (at least the kind of law that doesn't morph into whatever shape a "wise" judge actively determines from the bench). As we recently learned from former Justice Department attorney J. Christian Adams:
The New Black Panther case was the simplest and most obvious violation of federal law I saw in my Justice Department career...[Its] dismissal...was motivated by a lawless hostility toward equal enforcement of the law...[and] part of a creeping lawlessness infusing our government institutions... Refusing to enforce the law equally means some citizens are protected by the law while others are left to be victimized[.]
Unfortunately for America, we are examining an appointment to the highest judicial position in the country rather than to the NCAA. The appointment doesn't extend only for a game or a season, but for a lifetime. The Constitution and the Declaration of Independence, and not NCAA regulations, are under attack. And the status, impact, and power of the Supreme Court cannot be compared to a basketball tournament, even in Kentucky.
As Obama nears the halftime of his term, we are all beginning to wonder how much more America will suffer until the final horn. If Kagan receives the appointment, Americans should worry about whether the Constitution will survive until the next generation.