RUSH: Ed Meese today is being quoted in the Heritage Foundation’s Morning Bell blog post. ‘Though Miss Kagan…’ Who, by the way, the regime’s media keeps pointing out that she’s never been married and doesn’t have children. So? The only way that’s relevant to me is they tell me that this woman can identify with average Americans. How can she do that having lived in the Upper West Side of Manhattan, Hyde Park in Chicago, Harvard Yard, and the Beltway? (interruption) Well, I guess that is average to liberals. Okay. You’re right. Anyway, Meese writes: ‘Though Ms. Kagan has not written extensively on the role of a judge, the little she has written is troubling. In a law review article, she expressed agreement with the idea that the Court primarily exists to look out for the ‘despised and disadvantaged.”
Well, naturally, my friends, I’m a very curious individual (unlike those in the State-Controlled Media) and I said, ‘Who are these people? Who are the ‘despised and the disadvantaged’? Former attorney general Meese does not describe it. What he does say is this: ‘The problem with this view — which sounds remarkably similar to President Obama’s frequent appeals to judges ruling on grounds other than law — is that it allows judges to favor whichever particular client they view as ‘despised and disadvantaged.’ The judiciary is not to favor any one particular group, but to secure justice equally for all through impartial application of the Constitution and laws. Senators should vigorously question Ms. Kagan about such statements to determine whether she is truly committed to the rule of law. Nothing less should be expected from anyone appointed to a life-tenured position as one of the final arbiters of justice in our country.’
So, I went digging. I wanted to find out just who the ‘despised and disadvantaged’ are, and I found out that the nominee, Elena Kagan, idolized Thurgood Marshall, and it was with Thurgood Marshall that this phrase originated. Her law review article that Meese refers to, I found it. It’s a long thing. Folks, I deserve combat pay today for having dug deep into this to find out just what the hell this is all about, ‘the despised and disadvantaged.’ So if you read her law review article, I found the section here in which she refers to ‘despised and disadvantaged.’ She was quoting Thurgood Marshall and saying that if he had had his way, the court would only have existed to help the ‘despised and disadvantaged,’ and then she goes on to quote him as saying, ”The court should have no jurisdiction when one fat cat sues another fat cat.’
‘For in Justice Marshall’s view, constitutional interpretation demanded above all else, one thing from the courts. It demanded,’ constitutional interpretation demanded ‘that the courts show a special solicitude to the despised and disadvantaged. It was the role of the courts in interpreting the Constitution to protect the people who went unprotected by every other organ of government to safeguard the interests of people who had no other champion. The court existed primarily to fulfill this mission. And then she writes parenthetically, indeed I think if Justice Marshall had had his way, cases like Kadrmas would have been the only cases the Supreme Court heard. He once came back from a conference and told us, sadly, the other justices had rejected his proposal for a new Supreme Court rule. ‘What was the rule, Judge?’ we asked. And Justice Marshall said, ‘My rule was, when one corporate fat cat sues another corporate fat cat, this court shall have no jurisdiction.”
So ‘despised and disadvantaged,’ that still didn’t satisfy me. Who are they? I mean, when you say ‘the people who went unprotected by every other organ of government’? Well, I don’t know which organ of government protects me. I’m probably a target of government. Am I disadvantaged? I know I’m despised. But did she mean me? I mean, I know. I can listen to Obama, I know I am despised. The Democratic National Committee…. We’ve got a call. Don’t like this caller get away, Snerdley. We have a caller who just got a DNC letter in which they impugn my honor and integrity, calling me a ‘hater.’ So I know I am despised. But I doubt that Thurgood Marshall was referring to people like me when he said the role of justices was to interpret the Constitution for the despised and disadvantaged. So I wanted to go even further. So here in the last paragraph, we find out even more about Thurgood Marshall, who Elena Kagan idolized.
‘During the year that marked the bicentennial of the Constitution, Justice Marshall gave a characteristically candid speech. He declared…’ This is a law review article that she wrote. He declared that the Constitution as originally drafted and conceived was defective. Only over the course of 200 years had the nation attained the system of constitutional government and its respect for individual freedoms and human rights that we hold as fundamental today. ‘The Constitution today,’ the justice continued, ‘continued a great deal to be proud of. But the credit does not belong to the framers. It belongs to those who refused to acquiesce in outdated notions of liberty, justice, and equality, and who strived to better them.’ The credit, in other words, belongs to people like Justice Marshall.
‘As the many thousands who waited on the Supreme Court steps will know, our modern Constitution is his.’ So this is who Elena Kagan idolizes: Justice Marshall, who said, the Constitution as originally drafted and conceived was defective, and only over the course of 200 years with people like him on the Supreme Court had it become worth anything. It belongs to people like him, and now Elena Kagan, ‘who refused to acquiesce in outdated notions of liberty, justice, and equality.’ So the ‘despised and disadvantaged…’ Well, there’s one reference in her writings, too. I should mention this. No. No, no. Not her. Cass Sunstein, who is… (pshew!) I don’t know if you know these names or not. We’ve talked about him a couple of times. But he’s another Obama acolyte. He’s another just way-the-hell-and-gone, over the side leftist.
When he wrote about ‘despised and disadvantaged,’ he was referring specifically to homosexuals and how the court was not being fair in interpreting the Constitution in cases involving homosexuals. So that’s what I originally thought ‘despised and disadvantaged’ meant: Homosexuals. But it doesn’t specifically or only. It has to do with whatever Thurgood Marshall thought they were, and ‘despised and disadvantaged’ are people who are not represented by any branch of government. They’re totally ignored, they’re lost, they’re waifs. They’re simply ignored and lost in the system. That’s when I began asking myself, ‘Well, I know I’m despised by the regime — and in my way of thinking, I’m disadvantaged because I’m a target of the regime,’ but I know full well that neither Thurgood Marshall nor Elena Kagan has me in mind when they talk about ‘despised and disadvantaged.’
They’re looking at me and people like me as the oppressors. That’s right. The architects of the despised and the disadvantaged. I’m one of the reasons that there are despised and disadvantaged people. But it’s not all sweetness and light out there. Roland Martin, CNN political analyst, you may not have heard of him because nobody watches CNN. Even their cofounder recently said, ‘It’s becoming a joke,’ CNN. ‘If a white Republican president of the United States appointed a white male as his next Supreme Court justice, and upon the inspection of his record, it was discovered that of the 29 full-time tenured or tenured track faculty he hired as dean of Harvard Law, nearly all of them were white men, this would dominate the headlines. It would be reasonable to conclude that the special interest groups that vigorously fight for diversity … would be up in arms, declaring that this person’s records showed him unwilling to diversify academia, and unqualified to consider diverse views as one of nine members of the US Supreme Court. …
‘But what if the choice were made by a black Democratic president, and it was a woman? A white woman? A white Democratic woman? Some of you may not like the fact that I am focusing on the race of the individual, but when diversity is raised, the person’s skin color, gender and background are considered germane to the discussion. And if there is silence from black and female organizations, their race and gender matter as well. We may very well witness this now that President Obama has selected Solicitor General Elena Kagan to replace the retiring Justice John Paul Stevens. Guy-Uriel Charles, founding director of the Duke Law Center on Law, Race and Politics, has heavily scrutinized Kagan’s hiring record as head of Harvard Law School. In a scathing blog post, he has said that of the 29 positions Kagan had a chance to fill, 28 were white and one was Asian-American. And of the group, only six were women — five white and one Asian-American.
‘These numbers on the surface are appalling, and would be ripped to shreds by those who value diversity, but my gut tells me that even though Kagan has been tapped by Obama, the normally vocal and persistent voices in this area will be tight-lipped and quiet, unwilling to oppose or heavily criticize the nomination of a woman to the court, and especially one made by an African-American Democratic president.’ So he’s very, very, very, very upset, and he goes on to say in this piece that feminists and civil rights groups should demand answers about Kagan’s diversity record. So they’re not all ecstatically happy out there on the left with this nomination. But again, folks, I think that this is all part of the strategery.
Because on MSNBC today they said could ‘move court to the right,’ and of course where does MSNBC get its news? The White House calls them, the White House texts them. Politico the same thing. So this is all part of a strategy to distract people. Then I have the story from the New York Times by Sheryl Gay Stolberg, Katharine Q. Seelye and Lisa W. Foderaro. ‘She was a creature of Manhattan’s liberal, intellectual Upper West Side — a smart, witty girl who was bold enough at 13 to challenge her family’s rabbi over her bat mitzvah, cocky (or perhaps prescient) enough at 17 to pose for her high school yearbook in a judge’s robe with a gavel and a quotation from Felix Frankfurter, the Supreme Court justice.’ Okay, at 13 she gives a rabbi the business about a bat mitzvah? Okay. I mean, if this is what they’re going to say, this is what we will believe. Yep.
I mean I’m sure there are similar stories we heard about Obama and all the dragons he slayed as he was growing up all over the world. Anyway, this story prints out to five pages, and it makes her out to be identical to Obama — a consensus builder, brilliant and smart postpartisan, postracial — and it’s all based on, we don’t know anything about her! She hasn’t written anything. She’s been the dean of Harvard Law. Look, it’s clear what’s happening here as we nominated somebody from the faculty lounge, and the only person in the faculty lounge who is less qualified than Kagan for this gig is Obama. You have a bunch of theoreticians sitting around talking about a socialist utopia as it should be using all of their prejudices and all of their bigotry to rip and criticize the people they think are holding other people back, and they sit in their ivory towers — never having done diddly-squat, never having produced anything or accomplished anything — thinking they have all the answers. What happens when they get power? It’s called Greece.
RUSH: Madison, Ohio, this is Craig. Thanks for waiting, sir. You’re up next.
CALLER: Hello, Rush. Can you help me? Are they cloning Janet Napolitano or what? This new nominee, Napolitano, even Sotomayor, what’s going on? How far is this human genome project —
RUSH: Whoa, whoa, whoa, what are you doing here, sir? I just want to be very clear here about what you’re doing. Are you judging these babes — uh, women, on the basis of their appearance?
CALLER: Uhhh, yes.
RUSH: Okay. Well, I just wanted to be clear. So you’re saying that there’s a pattern, shall we say, between Big Sis Napolitano, and Elena Kagan?
CALLER: Yes. Can’t we clone Reagan instead?
RUSH: Well — (laughing) — you know, I have learned my lesson on this. I want to try to help you out. I know what you’re getting at here, sir. You’re not going to win any converts here by saying, ‘Look at these two, do you see a pattern here?’ Way back in the early days of this program when my mother was alive and listening, somebody called and wanted to know who I thought the most attractive and unattractive first daughters were. So I got to thinking about it and I don’t remember who I said for most attractive but I included Amy Carter in the most unattractive. Hung up, finished the show, went home, and my mother called me enraged. ‘You can’t do that! You are not going to last if you are going to comment on people’s appearance like that. You’re going to have to learn, more people look like Amy Carter than don’t. You are not going to get anywhere. People are not going to laugh at it. They’re just going to think it’s very impolite,’ and she said, ‘Besides, you forgot Margaret Truman.’ And I said, ‘Damn, you’re right, Mom.’ So you gotta be very careful, Craig. (laughing) My mother was hilarious. My mother was a card.
RUSH: Now, this is very interesting. Something just crossed the desk here about the Supreme Court nominee Elena Kagan, and it is from LegalInsurrection.Blogspot. It’s by William Jacobson, Associate Clinical Professor of Law at Cornell. ‘Supreme Irony — Kagan Nomination Ends Gay Marriage Hopes … [O]n one issue of critical importance to the left — the constitutional right to same-sex marriage, Kagan has staked out a very clear and unequivocal position: There is no constitutional right to same-sex marriage. In the course of her nomination for Solicitor General, Kagan filled out questionnaires on a variety of issues. While she bobbed and weaved on many issues, with standard invocations of the need to follow precedent and enforce presumptively valid statutes, on the issue of same-sex marriage Kagan was unequivocal. In response to a question from Sen. John Cornyn (at page 28 of her Senate Judiciary Questionnaire), Kagan stated flat out that there was no constitutional right for same sex couples to marry. …
‘a. Given your rhetoric about the Don’t Ask, Don’t Tell policy — you called it ‘a profound wrong — a moral injustice of the first order’ — let me ask this basic question: Do you believe that there is a federal constitutional right to samesex [sic] marriage? Answer: There is no federal constitutional right to same-sex marriage.’ (interruption) What? (interruption) Well, maybe yet, but what Mr. Jacobson here is saying is, ‘This doesn’t mean that Kagan opposes gay marriage. But she clearly believes it is a matter for the political process, not a constitutional right.’ She’s on record as saying that. ‘People who oppose recognizing a constitutional right to gay marriage routinely are called bigots and homophobes in academia and progressive circles. It will be interesting to see if these labels will be put on Kagan. The ironies are palpable.’ Again this is William Jacobson at LegalInsurrection.Blogspot. You know, Roland Martin at CNN is unhappy that she chose 28 out of 29 positions for white people at Harvard Law School and there’s another, this Paul Campos, who says she’s not even in Harriet Miers’ league. So there are some ripples out there of… Let’s just say that the support is not unanimous.
RUSH: I know. Obama said during the campaign that he didn’t believe in same-sex marriage. It was between a man and a woman. He said it during the campaign. I guess she could change her mind. She’s a woman.