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RUSH: The media is obsessing over whether Elena Kagan is homosexual or not. They’re trying to dig deep, and they got pictures of her playing softball and so forth. Speaking of which, President Obama has an announcement about his choice of Elena Kagan exclusively for you here at the EIB, hot out of the studio just this morning.

(playing of Obama spoof)


RUSH: Our young caller from Fargo, North Dakota, a 22-year-old guy, Earl Pomeroy is already running ads for reelection. He’s toast. Earl Pomeroy is probably toast in Fargo, North Dakota. The Democrats have no idea what’s going to happen to them in November — well, I think some of them do. They’re quitting, they’re retiring, they’re resigning and so forth and so on. But here’s a good way to illustrate what this young man from Fargo was asking about. People campaign, make you think they’re one thing, they go to Washington, end up being something else, how do you stay involved, how do you avoid getting ticked off to the point of, ‘To hell with it, I’m just going to go do things and try to keep these people from destroying my life.’

Orrin Hatch and Lindsey Graham have announced that they’re leaning toward voting for Kagan. This is what is wrong with our guys. You would never hear the Democrats say that about any of our nominees at this stage of the process. We have a president who sought to filibuster Sam Alito. Sam Alito is a genius, highly qualified in every respect. The president tried to filibuster him. Our guys say the filibuster is not on the table right now. So what this tells me is that we still have a lot of people in Washington who do not understand the mood of the public and who still do not have the guts to stand up to Obama. And that’s where it really comes down, still for whatever reason, which is beyond me, maybe they don’t want to have things said about them that are said about me, for example, maybe they don’t want to have things written about them that are written about me and others. But at this point in time the public mood is totally opposed to everything Obama stands for. And yet we still have people in Washington who are afraid to stand up to him.

Why did Obama pick Kagan? There are cartoons about her qualifications, the lack thereof. Let me tell you who she is. She is a budding communist. This is a woman who believes that we ought to have somebody in charge of who can say what. This is a woman who believes that free speech needs to be regulated by an independent body that will decide whether or not what you say is harmful to somebody else and you can’t say it. Kagan says a government motive is proper focus in a First Amendment case. She backs limits on speech that can do harm. ‘Supreme Court nominee Elena Kagan said the high court should be focused on ferreting out improper governmental motives when deciding First Amendment cases, arguing that the government’s reasons for restricting free speech were what mattered most and not necessarily the effect of those restrictions on speech.’ Well, there you have it. What else do you need to know? The First Amendment is something she doesn’t like. The government should have the authority to restrict free speech when they think it’s doing harm, like to who? Obama?

‘Kagan, the solicitor general of the United States under President Obama, expressed that idea in her 1996 article in the University of Chicago Law Review entitled, ‘Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.” Now, this puts her in the camp with one of the czars, Cass Sunstein, who believes the same thing. So as far as I’m concerned, I don’t care what else she’s done, I don’t care how much she’s written on Post-It notes, I don’t care how much she’s written anywhere. This puts her in the Hugo Chavez world, folks. This aligns her with communist dictators throughout history. The government will determine when speech is proper. She thinks that’s okay. She also has written a senior thesis on the problems inherent in the decline of socialism. So why did Obama pick her? He picked her because he knows her very well. Obama and Kagan go way back. He knows who she is. And who is she? She’s a rubberstamp. Sonia Sotomayor, a rubberstamp. Kirsten Gillibrand, a rubberstamp for Chuck-U Schumer in the Senate from New York. In fact, the less independent of thought she is, the better, as far as Obama is concerned. Rubberstamp.

Obama can’t put himself on the Supreme Court, so he’s going to put people who are as close to who he is and what he thinks as he can find, and that’s who she is, and that to me says, oppose her. But, no, we got guys afraid of standing up to Obama. Don’t have the guts to stand up to him. What these people, even on our side inside the Beltway don’t understand, is people are sick and tired, not just tea party people, most Americans are sick and tired, they’ve got buyer’s remorse, they do not like what’s happening here. Orrin Hatch and Lindsey Graham may be surprised to find that most Americans do not, A, read the New York Times, and, B, do not agree with it. They might be surprised to learn that most people don’t read the Washington Post and most people don’t agree with the Washington Post.

There’s a Politico story today: ‘Roughly half of Utah voters would vote for someone other than Hatch if he were up for reelection this year.’ He’s not. He’s up in 2012. This is a Mason-Dixon poll released yesterday commissioned by the Salt Lake Tribune. ‘Break from ideological purity,’ that’s one of the things in the story. How come it’s only our guys that are accused of ideological purity and then they have to go out and prove that they’re not ideologically pure? Hatch is not ideologically pure anyway. He worked for the S-CHIP program. Now, he bailed out on government health care, but he was among those trying to salvage it, until he jumped overboard on it. Now, I remember when Orrin Hatch — and I like the guy, I’ve talked to him I don’t know how many times, when he first came to the Senate he was solid, he was a fighter, he wanted to advance liberty.

But now the election of Obama has just got our guy’s hands tied. They’re afraid to stand up to him at all. What do they think they’re proving here? Who are they impressing by saying, ‘I have no problem with Elena Kagan.’ Who are they going to get the gold star from for that? Maybe you want to support her, but don’t say it now, the confirmation hasn’t even begun. We don’t even know what this woman’s going to say. If I can find out that the woman thinks the First Amendment ought to be altered and the government ought to have some authority to determine who can say what and who can’t, what else do we need to know? Especially me, folks. I am in the free speech business. I don’t need to know anything else about the woman, although I do.

Now, there’s something else going on with this woman that actually, to me, is kind of hilarious. This is the Orlando Sentinel but everybody’s talking about this today: ‘The Wall Street Journal has come under heavy criticism from gay and lesbian organizations after it published a 17-year-old photo of Supreme Court nominee Elena Kagan competing in a softball game under a front-page headline, ‘Court nominee comes to the plate.’ ‘It clearly is an allusion to her being gay. It’s just too easy a punch line,’ Cathy Renna, a former spokesperson for the Gay and Lesbian Alliance Against Defamation, said in a statement. ‘The question from a journalistic perspective is whether it’s a descriptive representation of who she might be as a judge. Have you ever seen a picture of Clarence Thomas bowling?’ WSJ denies any gay undertones in its selection of the photo and headline while White House officials have denied that Elena Kagan is gay.’

There was a CBS blog a week ago, last week sometime, put up a post that she was gay and the White House got really mad about it, said she’s not, and they took it down. Now they’ve got some friends of hers out there saying, ‘No, no, she’s not gay.’ My question is what’s wrong with being gay? Would somebody tell me, it’s not a bad picture, she’s at the plate, looks like she’s having fun, looks like a good stance, looks like she knows how to hit the softball. What’s wrong with being gay? Would somebody explain that to me? (interruption) I don’t know if only gays play softball. That’s not my point here. We’ve got an entire political party, in a stealth way, some of them public about it, trying to do everything they can to get gay marriage as the law of the land. The Democrat Party, one of its most powerful constituents is gay activists, lesbians and gays. So what I don’t understand is, what’s the problem? For the Democrat Party it ought to be a badge of honor. If we’re trying to put together a Supreme Court that represents America, that understands the despised and disadvantaged, as Thurgood Marshall said, what’s wrong with being gay? Why are they acting so defensive about this? Somebody’s going to have to explain this to me because it’s not computing.

Folks, I’m not trying to be provocative here. From the first moment the subject of her sexual orientation came up, I’ve been scratching my head. How can that possibly matter on the Democrat side of things? Do we really think that some senator’s gonna ask her? (interruption) You think they’re trying to provoke Republicans in saying something stupid about it? Well, if the Republicans don’t say something stupid about it, what it looks to me like is that the Democrats are the ones that have a problem with it, which is what I don’t understand. The Republicans are running for cover on practically everything here that has to do with Obama. They’re not going to say anything here, certainly none of the senators. This Wall Street Journal thing is the closest thing the White House has got to, ‘A-ha, a-ha, bigot, homophobe!’ That’s the closest thing they’ve got is this picture out there, a picture of her playing softball. What do I not know about women playing softball, what is there to learn about this? Is there some sort of secret cabal? If it is, it’s a secret. So from the Democrat standpoint, I do not understand what’s wrong here. I would think it would be a resume enhancement, and yet they’re defensive as they can be about it.

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