December 20, 2010

The Supremely Corrupt Court


The NYT had a piece by Adam Liptak detailing how the Roberts court takes more business cases than previous courts, and issues pro-business decisions a greater portion of the time. These trends already existed with the Rehnquist court, but the vector is accelerating.

The chamber’s success rate is but one indication of the Roberts court’s leanings on business issues. A new study, prepared for The New York Times by scholars at Northwestern University and the University of Chicago, analyzed some 1,450 decisions since 1953. It showed that the percentage of business cases on the Supreme Court docket has grown in the Roberts years, as has the percentage of cases won by business interests.

The Roberts court, which has completed five terms, ruled for business interests 61 percent of the time, compared with 46 percent in the last five years of the court led by Chief Justice William H. Rehnquist, who died in 2005, and 42 percent by all courts since 1953. Those differences are statistically significant, the study found…..

A study prepared by the Constitutional Accountability Center, a liberal group, examined the center’s success rate in the Supreme Court. It found that the positions supported by the chamber prevailed 68 percent of the time in the Roberts court, compared with 56 percent in the last 11 years of the Rehnquist court, a period without changes in the court’s membership….

Doug Kendall, president of the Constitutional Accountability Center, [said] the numbers proved that the Roberts court increasingly sided with corporate interests. He also said the study documented “a sharp ideological divide that did not exist before 2005.” In the last 11 terms of the Rehnquist court, the five more conservative justices voted for the chamber’s position 61 percent of the time, while the four more liberal justices voted for it 48 percent of the time.

In the first five terms of the Roberts court, the corresponding bloc of five more conservative justices voted for the chamber’s position 74 percent of the time, and the four more liberal justices 43 percent of the time.

This demonstrates the increasing corruption of the courts, their subversion from democracy and the original intent of the framers of the Constitution. I’ll detail each of these.
Three points stood out for me.
1. The piece places the corruption process in the context of the history of neoliberal corporatism over the last 40 years. Specifically, it cites the 1971 Lewis Powell corporatist strategy memo. As I said about this memo in a previous piece on systematic court corruption,

Lewis Powell, generally considered a “moderate” on the court, but at the time a corporate cadre, wrote a strategy memo encouraging corporations to argue systematically in the courts for free speech and other rights like any other “persons” (as part of the vast corporate assault on democracy he recommended). We see how this systematic perversion of the Bill of Rights was a strategy prescribed by the supreme court itself, as it were . The Citizens United case is just the latest and most visibly egregious of its toxic fruits.

Powell advised the corporate cabal to organize and fund a cell dedicated to pushing pro-corporate, anti-democratic ideology and arguments in the courts, and to recruit government personnel and judges to staff this cell. The corporations heeded the call, and the result was the Chamber of Commerce’s National Chamber Litigation Center.

The chamber now files briefs in most major business cases. The side it supported in the last term won 13 of 16 cases. Six of those were decided with a majority vote of five justices, and five of those decisions favored the chamber’s side. One of the them was Citizens United, in which the chamber successfully urged the court to guarantee what it called “free corporate speech” by lifting restrictions on campaign spending….

The Chamber of Commerce spent tens of millions of dollars in the recent midterm elections, mostly to help Republican candidates. It says that it has 300,000 members, businesses and organizations “of every size, sector and region,” and that its spending furthered the interests of some three million businesses, most of them small ones.

But the chamber’s mission is by no means limited to the elected branches of government. “A central function of the chamber,” it told the Supreme Court in a recent brief, “is to represent the interests of its members in important matters before the courts.”

The vehicle for that is the litigation unit that was envisioned by Mr. Powell, the National Chamber Litigation Center, which says it is “the voice of business in the courts on issues of national concern to the business community.

As the studies cited above show, this strategy is paying off. The numbers may differ, but all agree on the trend. This litigation center is a war room dedicated to corrupting the judicial branch and subverting it from a constitutional, democratic role, to an anti-constitutional, anti-democratic one.
We should be clear on the difference between this kind of NGO and any other. Public interest NGOs in principle seek the public good. That remains true even if, rarely, any of them betrays that trust. Such an example would in fact be a bad apple, an abuse.
But pro-corporate groups are in principle conspiracies against the public interest, the citizenry, democracy, and sovereignty. They are by definition anti-social in the same way a corporation is a clinical sociopath, by legal definition and circumscription of its “responsibilities”. By now we have sufficient empirical evidence that large corporations only harm society and the economy. They produce nothing which wouldn’t be produced far more effectively without them. And meanwhile the destruction they cause is incalculable. The balance is clear. They are purely destructive, enemies of America. So it follows that the Chamber of Commerce and any group like it is by definition anti-American.
2. Liptak cites the obscene revolving door of solicitors general in modern times.

From 1952 to 1981….former solicitors general usually became judges, joined law schools or worked as public servants. In the next 15 years, they split their time between academic and legal work, often consulting with law firms with specialized Supreme Court practices.

Starting in 1996, every former solicitor general, with one exception, has gone on to supervise a Supreme Court practice at a major law firm, earning as much as $5 million a year. The exception is Justice Elena Kagan, who joined the court in August.

These specialists make their livings representing business interests, and they have used the skills they honed in government service to achieve notable successes in the Supreme Court.

Yeah, “skills”. That’s what they also call “talent”. (Kagan may be an exception that proves the rule, if she turns out to be the corporate lackey we fear. From the point of view of the corporate cabal, it’s better if someone goes right onto the court than if she goes to work arguing before it on their behalf. Especially since she was incompetent as a litigator; her elevation to the court is a classic case of wingnut welfare.)
By now the solicitor general position is institutionalized corruption. It seems to be a given that as a government cadre before the SCOTUS one is auditioning for a subsequent corporate role before one’s friends and colleagues on the court. The court knows this from the outset and tacitly approves it. The incest must be suffocating at times, if anyone involved has even a shred of conscience left. But I doubt that’s often a problem. By now the institutionalized sociopathy of the system selects for such traits in the first place in its staffers, and systematically inculcates and reinforces them over decades of training and acculturation.
This runs directly counter to the assumptions and prescriptions of even Alexander Hamilton, the most pro-business of the Founders. Hamilton took it for granted that a revolving door between the courts and powerful private interests would, on its face, render the judiciary illegitimate.
As he wrote in Federalist #78:

Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity.

This was his core argument for giving judges tenure for life with guaranteed salaries, that it would greatly lessen the chance of the hated revolving door starting to spin. So by the pro-business Hamilton’s own contention, today’s revolving door is corruption on its face. (I don’t agree with his elitism, of course. Any intelligent person of integrity is far more qualified to be a judge than a corrupt savant.) Strict corruption, we can call it. No civilized society would allow it.
This part of Liptak’s discussion also touches on the Robert’s court’s increasing judicial activist corporatism.
3. Here’s a metric of the intensifying corruption:

David L. Franklin, a law professor at DePaul University, wrote in another article in The Santa Clara Law Review last year that the chamber had been quite successful in the Roberts court in four of what he considered five main categories of cases — punitive damages, arbitration of consumer and other disputes, the standards for early dismissal of lawsuits, and federal pre-emption of state laws governing injury and other suits. The “conspicuous exception,” he said, was employment discrimination…….

Even in employment discrimination cases, however, the available numbers are subject to two interpretations. True, the Roberts court’s 16 decisions have been evenly divided, according to an analysis by Professor Epstein at Northwestern. But the Rehnquist court ruled in favor of people claiming discrimination more often — 64 percent of the time.

Three of the five are structural. Two of those involve setting up barriers between the citizen and access to the law, the other is anti-federalist. The other two are more political. It’s interesting that the one which seems to have been relatively neglected, employment discrimination, is a typical corporate liberal issue, and therefore pretending to be anti-discrimination is part of neoliberal tactics.
So perhaps that caveat about how even the court’s commitment to anti-discrimination is eroding is a metric of the eroding position of corporate liberals themselves. The more the SCOTUS openly says it no longer cares about discrimination (the Walmart case is the most important pending example, although it also involves citizen access), the more we can take it that corporatism is abandoning the liberal scam and moving toward fascism.
So in conclusion, this Liptak piece, though containing some typical NYT bias, gives a good rundown. It demonstrates how, in the words of a typical criminal:

A prominent Supreme Court advocate who often represents businesses, Maureen E. Mahoney, chose her words carefully when asked at a chamber news briefing in September whether the Roberts court was especially receptive to the kinds of arguments pressed by corporations.

“The best court for getting a fair hearing on those issues,” she said, “is the Supreme Court.”

And that in turn is an inverse metric of the court’s legitimacy.

June 4, 2010

Kagan and the Corporate Court (2 of 2)


In part 1 of my post on the impending installation of Elena Kagan on the supreme court, I discussed how in The Federalist #78 Alexander Hamilton defended the lifetime tenure “during good behavior” for federal judges on the ground that he expected the courts, more than the other two branches, to come reasonably close to working purely in the public interest.
Hamilton’s conception was premised on the courts and especially the “supreme” court maintaining it independence of the executive and of other forces in the polity. As we know, by now the SCOTUS has been corrupted by corporatism and is a rogue institution. As I briefly discussed in part 1, this isn’t a new development which could be viewed as an aberration or the result of Bush extremism. On the contrary, the corporate struggle in the courts goes back to the 19th century, and the definitive victory march commenced in the 1970s. The process was only stepped up under Bush, the broad acceptance of the imperial presidency, and now Obama’s embrace of all Bush concepts. The Citizens United decision was more of a formal consummation than a practical change.
(We can say that Obama’s embrace thus formally embraces all Bush/Cheneyism as not extreme or aberrational but as within the mainstream of today’s polity. So if Bush policies were anti-constitutional, and they all were, then it follows that the polity as such is anti-constitutional. The system is a parasitic kleptocracy and is not sovereign. This goes for both kleptocratic parties and most existing pressure groups, which are really corporate astroturfs. I’ll discuss this further in an upcoming post.)
Obama’s alleged opposition to that decision is belied by his consistently pro-corporate actions. So it’s an accident at best, and more likely a cheap political lie. And there’s no reason to believe that Kagan on the court would’ve voted differently. Indeed, the ineptitude of her argument as solicitor general may have stemmed from her lack of enthusiasm for the position she had to argue.
Obama’s record as a corporatist and fanatic regarding executive power is bad, and we have to bet that he intends for Kagan on the court to be pro-corporate and pro-imperial presidency. That brings us to Kagan’s record, such as it is, on civil liberties and the “unitary executive”.
Just as on everything else, Kagan’s record here is remarkably barren, given the limitless opportunities she’s had to speak out on anything she wishes. (By contrast, I’m an obscure blogger with few opportunities, yet I’ve already left a record vastly more copious than that of this considerably older elite legal cadre.)
We see that at her core she’s a sociopathic careerist, as I discussed in the first post.
However, we can piece together a skeletal record. The most important structural point is that Kagan affirms the Bush/Cheney policy frame for the “war on terror”, i.e. permanent war and a society which is always supposed to feel it is “at war” and conform accordingly to whatever the power structure commands. This war is of course a complete fraud, but one of the hallmarks of a kleptocratic, and therefore anti-constitutional, cadre is her support for the Global War on Terror and shilling for the general Permanent War social frame, a Big Lie. (Another hallmark is continued support for the Bailout and telling the Big Lie that the Bailout was “necessary” and accomplished necessary and worthwhile aims. I’ll get to this too in an upcoming post.)
Kagan has also, as solicitor general, happily argued Obama’s anti-American positions on detainees (here she seemed more comfortable than in the CU case). Her “progressive” defenders claim that as a DoJ cadre it’s her job to argue Obama’s position, and that doesn’t necessarily mean she agrees with it or will decide that way once on the court.
(Notice any logical flaws in that argument? Even leaving aside the question of why Obama would’ve wanted a solicitor general who didn’t agree with his positions, we can certainly assume he wouldn’t want to put anyone on the supreme court who isn’t in full accord with him on the things most important to him.
As for the CU case, as I said I think Obama’s political dissent is just for political show, and that it’s not an accident that the administration’s, i.e. Kagan’s, argument was haphazard.
Also, aren’t all these liberals who say Kagan secretly disagrees with Obama on civil liberties and presidential arrogation the same ones who moronically say Obama himself really doesn’t agree with all the things he somehow keeps doing? Oh well, I’ll leave it to others to further plumb the cesspool of the corporate liberal mindset.)
At any rate, even if Kagan isn’t truly an anti-freedom ideologue but just a sociopathic careerist, how is that any better? Her partisans themselves are saying she’s the kind of person who’s content to “follow orders” and “do her job” even where it comes to assaulting civil liberties; that’s vile. Civil liberties like habeas corpus are too much core American values to be subject to the vagaries of careerism. By definition if you can be so cavalier about something like this, you either don’t care about American values or hold them in contempt.
Not that anyone will ask the still-too-few vigilant people of America, but do we want someone on the court who holds these values in contempt? Or is it that the SCOTUS already holds them in contempt, and Kagan will reinforce this?
One thing which looks clear enough from the record is that Kagan exalts the imperial presidency. As early as the Clinton administration she argued for broad discretionary executive authority. (We should recall that although Bush escalated the use of “signing statements”, it was Clinton’s DoJ which formalized the concept.) Then throughout the Bush years of ever more extreme assertions of the authority of the president to not only freely interpret the law (which assertions Kagan already explicitly agreed with) but to disregard it altogether, Kagan remained in her sociopathic careerist silence mode. From a cadre at her level, who had spoken out on the issue previously, we can take that as implicit consent.
And of course since becoming Obama’s head litigator she’s aggressively argued on behalf of Obama’s aggressive continuation of the entire Bush/Cheney imperial-presidency agenda.
This leads us back to Hamilton and his Federalist #78. Hamilton thought the judiciary would be the “least dangerous” branch because it was the least powerful. (The executive enforced the laws and commanded the armies, the legislature wrote the laws and had the power of the purse.)

It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

Hamilton believed the best safeguard against the courts becoming tyrannical on their own was the simple fact that the judiciary was reliant upon the executive to enforce its judgements, and therefore wouldn’t be able to run too far rogue. The courts would either reflect the agenda of the executive or at any rate couldn’t be completely antithetical to the executive. Of course, this assumes the executive itself hasn’t become a kleptocratic rogue, and that the court isn’t simply following the lead of this rogue executive.
In fact, the pro-corporate, imperialistic agenda of the last several administrations adds up to decades of subversion of the constitution and betrayal of the public interest. Obama’s own corporatist, imperialist pretensions are just the latest, terminal escalation of the historical trend. We now have a full-fledged, entrenched kleptocracy. It has abdicated sovereignty.
Although judicial review isn’t an issue we’re discussing here, Hamilton’s discussion of it leads to some observations on sovereignty which are highly relevant to us.
In an extended discussion Hamilton derives the authority for judicial review from the constitutional facts that the legislature is representative of the people while the written Constitution, embodying the will of the people, is superior to the legislature and its written laws. So for the polity to have any integrity, it follows that some authority has to be the arbiter where the legislature is alleged to have run rogue of the Constitution and the people.

A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

I add to this that the sovereignty of the people, also known as the constitution, is always implicitly superior to the written Constitution as interpreted by the courts if the courts themselves have run rogue. (It’s the same logic as Hamilton gives for enshrined judicial review.)
So we have the implicit order of rank. The people/sovereignty/constitution is prior to the written Constitution, which is prior to the legislature and the written laws, and the courts are to arbitrate between the Constitution and the legislature, while the people’s constitution is also prior to the courts themselves.
I’ve written at length on the corporate hijacking of the law, from the way it’s written in the corrupt legislature to the way it’s enforced by the corrupt executive to the way it’s adjudicated in the corrupt courts (indeed, how access to the courts themselves is increasingly rationed by wealth).
Since we’re talking about the law and the courts, I’ll just give a few links which focus on that aspect. I hope with these and other pieces I’ve done a passable job of making my case that this a rogue system.
The corporatist subversion of law, smuggling in the fraudulent anti-constitutional concept of “corporate personhood”;
Access to the law: Parts one, two, and three.
On the supreme court itself as a rogue, with special reference to the Citizens United case: Judicial Activism and Judicial Abdication.
Hamilton says the supreme court can never endanger liberty “so long as the judiciary remains truly distinct from both the executive and the legislature.” The condition of it losing this distinction has been met. It turns out that Hamilton’s confidence in the institution of permanency in office for federal judges only worked partially well at its best, and has by now ceased working.
Today the supreme court (like the Senate) is among the most discredited institutions. By now permanency in office is a detriment to liberty. The court best represents the inertia of the status quo (which is why it’s lagged behind the Reagan revolution in the other two branches). Much as the Senate is more structurally conservative (i.e. beholden to the status quo inertia) than the House, so the courts are the most conservative – how difficult it is to be placed, the slow rate of turnover, the permanent tenure.
So now that the SCOTUS has become a tool of corporatism, it will remain most intractably such a tool for the longest tenure, if left to itself. Therefore we should clearly recognize and teach its illegitimacy and the unlikelihood that any hope for change can be fulfilled through the courts. From here on the best we might get from the corporate courts are increasingly infrequent pro-public accidents.
So that’s the answer to the questions I asked above about the SCOTUS. It no longer embodies the constitution nor is it a faithful arbiter of the Constitution. It no longer lives up to the principles Hamilton laid out. Since Obama is a hardened corporatist, and since Kagan’s record is clear on the fact that she’s either a sociopathic careerist or a corporate ideologue herself, we can be sure that she’ll act to further carry the court along the logic of the kleptocratic status quo. That’s definitely Obama’s intention for her.
Of course there’s nothing freedom activists can do about this for now. Kleptocracy will traverse the suicidal path of its logic for as long as it can muster the power to do so.
All we can do for now is realize the fact that the supreme court is irremediably corrupt, that it’s hopeless to expect anything good from the courts in general, that the court has zero authority but only the power still invested in it by the kleptocracy. It’s not a part of the people’s sovereignty.
We must recognize this and where possible be teachers of it. Since the nomination of a new member to the supreme court is always a “teachable moment” regarding the judiciary, I wrote these posts. 

May 28, 2010

Kagan and the Corporate Court (1 of 2)


So it’s supreme court season again. Obama has named the dubious Elana Kagan as his choice to replace the most consistently liberal member of the court, John Paul Stevens. Stevens, while not anti-corporatist, was the most “passively” corporate judge. Based on Kagan’s systematically sparse record, we have to assume she’d bring a pronounced pro-tyranny shift to the court. (Someone like Kagan, who gives every indication of being a pure careerist, will always perform as that careerist. You can’t think that “she was only acting that way to get onto the court in the first place, but once there her true public interest concerns will shine through” or some such notion. People aren’t like that. On the court she’ll probably behave exactly as she always has – with an anxious eye toward the elites and what they want.)
Will such a shift be pivotal for the struggle against kleptocracy? Or is the supreme court already a rogue beyond redemption, as I argued in my posts (here and here) on the Citizens United decision? While we need to think more about the implications for civil liberties cases (several important 5-4 decisions, Stevens reliably on the side of real American values, Kagan having shown signs of being careless or contemptuous of those values; I intend to give the matter its own post), regarding corporatism we already have a corporate court, and the 5-4 splits have tended to be between what we can call judicial activist corporatism vs. “regular” corporatism. The Citizens United case was a classic example, with the minority not disputing the fraudulent premise of corporate personhood, let alone the general proposition that we should be ruled by corporate tyranny. They dissented on the more narrow ground that the majority had been needlessly activist throughout, both in how they ordered the case to be reargued and in the breadth of their decision.
So is the court beyond redemption, just like the rest of the kleptocracy? If we look at the evidence of Alexander Hamilton’s magisterial Federalist #78, widely considered the best short elucidation of the written Constitution’s concept of the judiciary, the case looks grim.
Hamilton’s first major point centers on how federal judges should enjoy tenure “during good behavior”.

The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.

The courts are supposed to comprise an “excellent barrier” against the encroachments of the other two branches. Historically the record has been spotty, with the courts sometimes resisting, sometimes enabling these encroachments. It has worked well sometimes. But today our question is, in the age of kleptocracy, where the entire power structure including “both” of the so-called “two” parties are aggressive functionaries of corporatism, can we ever expect this court to work in the public interest again? It’s a given that no identifiable anti-corporatist will ever be nominated again. So we’d be reduced to hoping for some accident, that once on the court a formerly reliable system cadre will go rogue from the system’s point of view and judge from the perspective of the public interest. I’d say the people should never repose faith in such accidents. That’s just a version of dreaming of winning the lottery. It’s escapism, not coherent political philosophy.
The record of the courts since the onset of full scale kleptocracy in the 1970s has been just what we’d expect – a steady movement rightward in the sense of becoming ever more pro-corporate. It’s both substantively and symbolically indicative that right before he was named to the supreme court, Lewis Powell, generally considered a “moderate” on the court, but at the time a corporate cadre, wrote a strategy memo encouraging corporations to argue systematically in the courts for free speech and other rights like any other “persons” (as part of the vast corporate assault on democracy he recommended). We see how this systematic perversion of the Bill of Rights was a strategy prescribed by the supreme court itself, as it were . The Citizens United case is just the latest and most visibly egregious of its toxic fruits.
Similarly, as I said above Citizens United represents a shift from “regular” judicial corporatism to “activist” corporatism. Back in the 70s and 80s Rehnquist and O’Connor still used to reject some of the more aggressive corporatist arguments, as in Rehnquist’s dissent in the 1986 case Pacific Gas and Electric vs. Public Utilities Commission. To this day even Scalia and Thomas might here and there reject the most extreme assaults, as in 2007’s Philip Morris USA vs. Williams.
Meanwhile Rehnquist and O’Connor were replaced by Roberts and Alito, who were expected to represent the most up-to-date model of the most aggressive corporatist court activism. So far in practice they’ve lived up to that billing, most clearly in Roberts’ ordering the Citizens United litigants to go back and reargue the case on broader, more fundamental grounds than they had argued the first time round, because Roberts wanted to artificially manufacture the opportunity to make a broad court statement of corporate personhood “rights”. Judicial activism doesn’t get more aggressive than that.
So given Obama’s corporate flunkeyism, what can we expect from his appointments? It’s true that with Sotomayor the record is mixed, and so far we don’t have much data. I’d say Kagan’s lack of a record here is probably a bad sign. It’s hard to believe that Obama would appoint a second judge he’s not 100% confident will be pro-Wall Street, for example. There was lots of talk about Obama wanting to appoint a “progressive” judge, which on its face sounds absurd given his radically anti-progressive ideology and policy in general.
If anything, I’d say Obama probably already thinks Sotomayer was his “progressive” appointment, and that this time he needs to fully commit to serving his masters. Sure enough, one thing we do know about Kagan is that she has been a paid adviser to Goldman Sachs.
So in conclusion, we have the general aggressive corporatist trend on the supreme court. In itself Kagan’s record, such as it is, offers zero evidence that she wouldn’t follow this trend, and some evidence that she would. When we place that record in the contexts of Obama’s ideology and policy, and the way careerists behave in general, it looks more sinister. We have to assume that Obama expects Kagan on the court to be a good friend to big corporations, and that she has assured him she will be.
One last point on this sparse record. Today we’re rightly skeptical of formal credentials, and so we don’t care much intrinsically about Kagan never having been a judge.  However, according to #78 Hamilton would have disagreed. On the contrary, one of his chief arguments in favor of giving judges lifetime tenure is that he expects there to be a fairly small talent pool of those who combine the requisite knowledge and integrity.
From our point of view, the most important thing is that for Hamilton to be correct in his pro-Constitution analysis, the career path and talent pool of those he considered “fit characters” would never involve our notorious revolving door, but rather the focused mastery he describes here:

There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity.

Kagan definitely does not live up to this. On the contrary her brief tenure as Solicitor General revealed her to be an ignoramus about the law. When she argued before the court Kennedy had to keep coaching her on what cases she was supposed to cite to bolster her arguments. One characteristic response: “I’m not familiar with that case.” Stevens and Ginsburg seemed similarly exasperated with her buffoonery. So whatever we think of formal expertise, according to Hamilton’s vision Kagan is certainly incompetent. She’s not a “fit character”. She’s “less able and less well qualified to conduct [the administration of justice] with utility and dignity.”
This issue lays bare how not only Kagan herself but our whole kleptocracy is a distortion and perversion of the original concepts of the written Constitution. By original I’m not referring to the fraudulent “originalist” ideology, but simply to the basic principles that animated the constitutional aspiration, thinking, and writing in the first place. As I plan to establish at further length in subsequent posts, the kleptocracy does not embody the sovereign constitution or the written Constitution, but is only a funhouse mirror hallucination of it.
I’ll continue in part two of this post with Hamilton’s ideas about judicial independence of the other branches as being necessary for the judiciary’s own integrity as well as the integrity of the whole system.