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OpEdNews Op Eds    H2'ed 4/23/10

Anybody But Kagan, The Worst Choice To Replace Justice Stevens, Part 9 Of The Corporations United Supreme Court Debacle

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We were not sure if we should address the embarrassingly pathetic performance by Solicitor General Elena Kagan in this analysis series of the multitude of unconscionable and premeditated errors foisted on the American people, when the Supreme Court held that corporations were the true rulers of all us. But since Kagan's name is again being tossed about as a replacement for retiring Justice Stevens, we have no choice.

So we will confront this now, and will pick up the last thread we were discussing (the Supreme Court's contortion of the First Amendment) again in the next installment after this.

Even we would have to admit that the government's (Kagan's) argument in this case did not even rise to the level of lameness. Because her performance was so muddle headed, Kennedy claimed license to say that the people must therefore lose. It is a specious excuse of course, because the Supreme Court has an independent obligation to respect precedent regardless of how poorly cited by the party for the people, as the justices being so wrongfully overturned no doubt argued behind the scenes (Stevens dissent pp. 7-8). And moreover, Seth P. Waxman (who also argued the people's side in oral argument) made the points that needed to be made, even if they flew right by Kagan herself.

And the first and most important of those points was that the Supreme Court was rushing into this decision in the stark absence of any record of testimony in the Court below to develop findings of fact on the issue they themselves wanted to resurrect (having previously been abandoned in the court below and not preserved for appeal by the corporations' advocate). For those who have not been following this series from the beginning, in the second installment we talked about what a "finding of fact" was, and how the review power of appellate courts, and the Supreme Court in particular, is supposed to be limited to making rulings of LAW, based on a record of testimony on the facts developed by the original trial court. If you like and it would be helpful, you can go back and read the second part on

Or you can find it on the new Facebook Independent Voters page (and click on Supreme Court Analysis in the page menu)

So the complaint that the Supreme Court was barging ahead without even a factual record to support their decision was one of the first points we made in this series, and it should have been the first words out of Kagan's mouth.

While Kagan in her written filings kind of made the procedural point that the Supreme Court should not revive the issue waived in the court below (Supplemental brief of appellee Federal Election Commission, pp. 3-5), at NO time did she argue that even if the Court were inclined to do so, it still could not do so fairly without returning the case back to the lower court for further proceedings there (what is called a "remand"). What a remand would do is preclude an immediate (and in this case ill-advisedly hasty) decision by the Supreme Court, but allowing that it could be reviewed again after those necessary findings of fact were conducted, presuming one of the parties wanted to again appeal the subsequent decision by the lower court.

For her part, Justice Sotomayor did as valiant a job as she could to hand Kagan the ball, raising this issue herself when questioning attorney Olson. (Oral argument, p. 25, lines 16-22.) Attorney Seth Waxman himself did indeed put up a glove to try to catch this ball by the end of his own presentation. (Oral argument, p. 75, line 10 - p. 77, line 2). But it should have been the government's first bulwark. Kagan did more than drop the ball, she did not even notice that there was a ball.

And the reason is, Kagan was so self-absorbed with the sound of her own voice, wandering miles away from any point persuasive on the case actually before the court, she did not even have a coherent presentation in mind stepping into that chamber. Kennedy ridiculed her in the opinion, describing the "litigating position of the Government" with the word "uncertainty". (Opinion, p. 23). Roberts was even more pointed in his concurring opinion mocking her for discarding the original reasoning (the only righteous basis for stare decisis in the first place) which supported the cases they were unilaterally determined to reverse. (Roberts opinion, pp. 12-13).

Here we remind you (part 5 of this series) that the only thing binding as precedent about a previous Supreme Court decision is the reasoning by which it was reached on the point of law critical to the decision, what is called its "essential holding". But instead of making a strong defense of the Austin case based on its essential holding, Kagan walked in with a grab bag of alternative theories, including a vague one of her own, namely "something related to the shareholder interest that is in truth my view of Austin". (Oral argument, p 48, lines 14-15).

Hey, Kagan, who gives a flying fig what YOUR view of the case is? Your job as Solicitor General was to argue what the view was of the Supreme Court justices who wrote the opinion you were there to preserve, to reinforce THEIR reasoning, the basis of the precedent, not egotistically invent fatuous new theories on the spot in oral argument to show off what a brilliant legal mind you have. Nothing could demonstrate more that Kagan hasn't got the slightest clue what our entire legal system, let alone the Supreme Court, is supposed to be about.

So utterly disconnected was Kagan from what was actually going on in that oral argument that Justice Stevens himself had to correct her for getting wrong the point that he was trying to help her with. (Oral argument, p. 43, lines 3-5).

Oh, but it gets so much worse. Behold this black pearl of oral argument advocacy out of Kagan's mouth.

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