Wednesday, June 30, 2010

Earning a Culture-Wars Purple Heart

“[Elana Kagan] seems fully comfortable standing before this committee and suggesting something which no recent nominee has ever dared suggest: Supreme Court justices should be among the nine smartest people in the land, and guess what? I'm one of 'em!”
—Dahlia Lithwick, in Slate, discussing the second day of the Kagan confirmation hearing.

One of the most important, and surprising, things Kagan could accomplish through these hearings and, maybe, by speaking out about it publicly through, say, op-ed pieces once she becomes a justice, is to prompt a reversal of the aggressive, concerted, and near-complete quarter-century movement, initiated and promoted by Republican federal judicial appointees but now omnipresent among federal and state-court judges, to glorify stupidity by judges.

That trend has served, along with the related concurrent trend among judges to mock and defame litigants and their attorneys, to render the federal and state courts playgrounds for the judicial elite and the judges who envy and try mightily to emulate the judicial elite. “If I casually dismiss lawsuits and ridicule and denigrate the pro se (unrepresented-by-counsel) plaintiff or the attorney for the plaintiff or criminal defendant, I too can be admired by my colleagues. Just like elite Judge So-and-So.”

Not even to mention reducing my civil-litigation workload to almost nothing, except of course civil litigation filed by large corporations represented by partners at mega law firms.

Time was when judges—at least federal judges—gained status among their peers by demonstrating genuine intellect. And, as Kagan said in discussing Justice Thurgood Marshall yesterday, “seeing courts take seriously the claims that were generally ignored anywhere else."

These days, instead, it is sheer nastiness, palpable condescension, and a rote dismissal of every civil rights case that doesn’t allege a violation of the Fifth Amendment’s “property takings” clause, or a violation of the Second Amendment or of the first Amendment’s Free Exercise (of religion) clause, or a so-called reverse-discrimination violation of the Fourteenth Amendment’s equal protection clause. This is, by choice now, almost as true among Democratic appointees as among Republican ones. There are some exceptions, but not many.

If Kagan is willing to try to reverse this, she will be using her judicial celebrity toward an end worthy of Thurgood Marshall himself. If she tries and actually succeeds, she will be a justice worthy of a Culture-Wars Purple Heart.

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