Andrea Tantaros

Why Elena Kagan will be Obama's Longest Legacy

2010-05-12T16:40:44-04:00

Barack Obama will forever be known as the first black president. He’ll be remembered as the first president to speak to the Muslim world from a Muslim country. Many will reflect on his dependence on the teleprompter, and that he was the first President to have a blackberry, and third sitting President to win the Nobel Peace Prize. President Obama will have a lot of defining moments. And though he might be on his way out in two -- or even 6 -- years, long after he’s left the Oval Office, Elena Kagan, if confirmed, just might be Obama’s biggest, and most potent legacy, making her vetting all the more critical.

The highest court in the land is responsible for some of the most dramatic policy outcomes in our country’s history. Now, more than ever before, we find key issues of importance front and center of the judicial branch and Elena Kagan could be the tipping point in their outcomes, like the fate of the sweeping, highly unpopular health care bill.

Eighteen states have already filed legal challenges through their attorney generals against Obama’s key initiative to date, the health care legislation, and five more states joined as recently as last week. The joint lawsuit led by Florida was filed on March 23 by mostly Republican attorney generals. It claims the sweeping reform of the $2.5 trillion U.S. health care system, jammed through by Democrats in the Congress after months of manipulation; nasty partisan fighting violates state-government rights in the U.S. Constitution and will force massive new spending on hard-pressed state governments.

In addition to the pending lawsuits, bills and resolutions have been introduced in at least 36 state legislatures seeking to limit or oppose various aspects of the reform plan through laws or state constitutional amendments making the fate of this giant legal challenge – the constitutionality of the health care bill – likely to end up at the door of the Supreme Court, thus on Kagan’s desk.

And what about immigration reform? With states like Arizona taking steps of their own to solve their undocumented alien crisis, and more states poised to follow suit, the question of whether or not Kagan will rule in favor of the Tenth Amendment is a confirmation hearing imperative. Already opposition groups have made clear they'll challenge the Arizona law, including Obama's Attorney General himself, Eric Holder. Under the Tenth Amendment, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

It could be years before we see comprehensive reform on immigration, but depending on the final product, the issue is likely to make its way to the highest court in the nation. Kagan, again, could determine the fate of the ruling and set precedent.

Besides issues on health care, immigration, and states’ rights, expect Kagan to have influence over game changing eminent domain cases where the government has been involved in power grabs with people’s land. The court is also likely to face cases on regulation of the Internet, military issues like Don't Ask, Don't Tell, campaign finance, potential environmental decisions, the Fairness Doctrine, religious freedom and perhaps most importantly -- the federal government and the War on Terror. All of these are areas where President Obama or his administration will have weighed in, making them part of his legacy.

Thanks to a complacent, love struck media, our current president wasn't tested and vetted as he should have been. Like Obama, Kagan doesn't have a robust paper trail so we are unable to discern her judicial temperament and philosophy because she’s never been a judge. That's why it’s terribly important that she gets a good grilling, under very rigorous questioning in the Senate.

Elections have consequences, and Supreme court nominees embody these consequences. At only 50 years old, a Justice Kagan, is likely to stay on the highest court for the next 30-40 years and will rule on the most serious and sensitive decisions in our country's history – making her appointment pivotal -- and her future ultimately Obama’s potential past.

Painting Sotomayor as a Racist, Not a Pretty Picture for Republicans

2009-05-29T10:08:00-04:00

The verdict is in: Rush Limbaugh and Newt Gingrich think Obama’s Supreme Court pick, Sonia Sotomayor, is a racist. Why? They start (and finish) with these remarks:

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

Yup, sounds like racism to me. And of course if any white man would have said the reverse he’d be vilified.

However, calling her a racist — though intellectually honest — is politically most unwise. The visual is even worse: two, old white guys angrily battling a minority female (I’m having flashbacks of the partial birth abortion bill passage when President Bush was flanked by all men in dark suits and grey hair. Not a woman in sight. It wasn’t pretty). This is not the picture, or the fight, we want.

The Republican Party is much smarter than to invoke the commonplace, language of the left. They are the ones that typically use words like “racist.” Since when did the GOP turn into the Democratic Party? Even they have moved on from the 1990s when Bill Clinton and Tom Daschle were their mouthpieces. This is beyond arrested development. We are regressing.

The GOP should structure its opposition to Sotomayor by focusing on two fundamental points. The first is her ability to thoughtfully interpret the Constitution.

Translation: fairness. She has made questionable statements and rulings in the past that warrant this inquiry. Specifically the comments she offered about ethnicity, whether or not judges can put their personal “sympathies” aside and do their job, and her ruling on the New Haven firefighters’ affirmative action case.

The second challenge should be directed at Obama: is Sotomayor a tool to advance the president’s world view that the irresponsible will be rewarded at the expense of the responsible? Obama’s vision is one that comes to the rescue of people who bought homes they couldn’t afford, companies who made terrible business decisions; a dogma that perpetuates weapons of class destruction, and the belief that a safety net should be the norm, not an aberration.

It is much like the “critical” legal theory that elite law schools like Harvard have been teaching for more than a decade. It’s a theory that both Obama and his nominee ascribe to and seek to put into practice.

The basis of critical theory is that there is no objectivity in the law. Legal positions are based upon one’s background, ethnicity, wealth (or lack thereof), etc. The law is just an equalizer –- a power tool to be used by various groups and the key to good legal judgment is “empathy” with the poor, the downtrodden, etc. The first commandment is: don’t let the powerful and rich use the law to their advantage.

The right must understand that if this theory has been taught for a decade in our nation’s most prestigious law schools, it will have political consequences. This is exactly what we are seeing today, which gives credence to an argument I have been making for months — the GOP needs to stop focusing on every little political fight and start to care about the culture.

Here are the professions currently dominated by the left: journalism, law, academia and the arts. In other words, they’re a force in powerful professions that involve ideas and shape our culture. The conservative “movement” can’t keep moving when there is no intellectual engine behind it. It is exhausted. We are now using the terminology of the left (”racist”) to try to make our points. We should not have to stoop to the playing field of progressives. The GOP is better than this. The Party is smarter than this. If the right doesn’t start to care about changing the culture, we are destined to lose – and not just this Supreme Court battle. We’ll lose the war.

The Obama administration triangulated the right with this raw, political pick to shore up its base with women, Latinos and liberals. Any Republican assault that appears shrill to the electorate will backfire and damage our brand. Though Bush left a leadership vacuum in his wake, we should not fill it with angry, Democratic rhetoric. Reagan certainly wouldn’t. We must be smarter than to fall into their trap.

Andrea Tantaros is a conservative commentator and columnist. Her commentary can be found at www.andreatantaros.com or www.foxnews.com/opinion.

Supreme Concern

2009-05-27T06:45:00-04:00

Obama has announced his pick for the Supreme Court: Manhattan’s Second Circuit Court of Appeals judge, Sonia Sotomayor.

The pros: she's a real judge from an important circuit court with a stellar judicial pedigree. This one ain't coming from traffic court.

The cons: she could be a judicial activist who lets her own feelings impede on the role of the judiciary. In point of fact she has observed on tape that federal appellate courts "make policy."

It’s the job of the President and Congress to enact policy, not the judicial branch. Ms. Sotomayer seems perfect for Capitol Hill, but she’s apparently headed for the wrong building.

Sotomayer has also questioned whether or not justices can put aside their personal sympathies to do their jobs.

“I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate."

Sympathies? Since when do we have our highest court in the land judge on feelings?

Of course, tingles are running up the legs of the mainstream media. They are, as usual, not focused on what matters: her ability to follow the letter of the law, fairly apply the constitution, maintain precedence, and not legislate from the bench.
According to US News, "Obama was 'reaching for history,' says the AP. The Politico, meanwhile, says the President ‘has again swept away historic barriers of race and ethnicity.’ Calling Sotomayor ‘a proud project of the Bronx,’ NBC Nightly News said a ‘difference is being felt’ in her home borough ‘among those who dare to dream just like she did.’”

Touching. But what does this have to do with being a judge? Once again Obama and his team are in pursuit of historic grandeur. Plus they get exercise raw politics – something that should never be a factor when it comes to the highest court in the land.

Before she sails through the confirmation process, the real question that needs to be answered is: is she a mechanism for the left to use a far fetched interpretation of the constitution to enact laws they can't get through Congress?

If that’s the case, the nation is facing the most rapid cultural decay it’s seen in years. This battle is bigger than the bench, and much bigger than politics.