Author Archives: nskam

The context of course!

And what is worse even than the hearings themselves is a necessary condition of them: the evident belief of many senators that serious substantive inquiry of nominees is usually not only inessential, but illegitimate–that their insistent questioning of Judge Bork was justified, if at all, by his overt “radicalism” and that a similar insistence with respect to other nominees, not so obviously “outside the mainstream,” would be improper. This belief is not so often or so clearly stated; but it underlies all that the Judiciary Committee now does with respect to Supreme Court nominations. It is one reason that senators accede to the evasive answers they now have received from five consecutive nominees. It is one reason that senators emphasize, even in posing questions, that they are asking the nominee only about philosophy and not at all about cases–in effect, inviting the nominee to spout legal theory, but to spurn any demonstration of what that theory might mean in practice. It is one reason that senators often act as if their inquiry were a presumption– as if they, mere politicians, have no right to ask a real lawyer (let alone a real judge) about what the law should look like and how it should work. What has happened is that the Senate has absorbed criticisms like Carter’s and, in so doing, has let slip the fundamental lesson of the Bork hearings: the essential rightness–the legitimacy and the desirability–of exploring a Supreme Court nominee’s set of constitutional views and commitments.

While Kagan did write “[Judicial confirmation] hearings have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis,” she also indicated why she believes the process is a vapid and hollow charade. Kagan is calling for the overhaul of what has become inundated with politics and spectacle to the point that there is no longer anything to glean from the now empty ceremony (empty as it may be Justice Clarence Thomas referred to the hearings as “a living hell”).

Kagan probably never expected to be sitting behind the judicial confirmation hearing mic, fielding questions from Orrin Hatch like: “How could this quiet retired woman know about something like Long Dong Silver? Did you tell her that? Is that a black stereotype, something like Long Dong Silver?”

But through her writing of more than 15-years ago, she has invited the most stringent examination, a la Judge Bork. So bring on the racial epithets and religious slurs — Kagan demands it!

Picture from the New York Times.

Quotes from Elena Kagan’s 1995 piece Confirmation Messes, Old And New.

From the NYTimes.

The following is a fictitious case used to demonstrate the absurdities of logic and the court’s ability to ignore reality.  While the piece is satirical, it’s not far off from certain opinions. The defendant was convicted under the Cruelty to Small Birds Act for shooting his lame horse while it was covered in feathers from a down pillow. The decision by Blue, J., held as follows:

“This is an appeal by the Crown by way of a stated case from a decision of the magistrate acquitting the accused of a charge under the Small Birds Act, R.S.O., 1960, c724, §. 2. The facts are not in dispute. Fred Ojibway, an Indian, was riding his pony through Queen’s Park on January 2, 1965. Being impoverished, and having been forced to pledge his saddle, he substituted a downy pillow in lieu of the said saddle. On this particular day the accused’s misfortune was further heightened by the circumstance of his pony breaking its right foreleg. In accord with current Indian custom, the accused then shot the pony to relieve it of its awkwardness.

“The accused was then charged with having breached the Small Birds Act, §. 2 of which states:

‘2. Anyone maiming, injuring or killing small birds is guilty of an offense and subject to a fine not in excess of two hundred dollars’

“The learned magistrate acquitted the accused, holding, in fact, that he had killed his horse and not a small bird. With respect, I cannot agree.

“In light of the definition section my course is quite clear. Section 1 defines ‘bird’ as ‘a two-legged animal covered with feathers’. There can be no doubt that this case is covered by this section.

“Counsel for the accused made several ingenious arguments to which, in fairness, I must address myself. He submitted that the evidence of the expert clearly concluded that the animal in question was a pony and not a bird, but this is not the issue. We are not interested in whether the animal in question is a bird or not in fact, but whether it is one in law. Statutory interpretation has forced many a horse to eat birdseed for the rest of its life.

“Counsel also contended that the neighing noise emitted by the animal could not possibly be produced by a bird. With respect, the sounds emitted by an animal are irrelevant to its nature, for a bird is no less a bird because it is silent.

“Counsel for the accused also argued that since there was evidence to show accused had ridden the animal, this pointed to the fact that it could not be a bird but was actually a pony. Obviously, this avoids the issue. The issue is not whether the animal was ridden or not, but whether it was shot or not, for to ride a pony or a bird is of no offense at all. I believe that counsel now sees his mistake.

“Counsel contends that the iron shoes found on the animal decisively disqualify it from being a bird. I must inform counsel, however, that how an animal dresses is of no concern to this court.

“Counsel relied on the decision in Re Chicadee, where he contends that in similar circumstances the accused was acquitted. However, this is a horse of a different color. A close reading of that case indicates that the animal in question there was not a small bird, but, in fact, a midget of a much larger species. Therefore, that case is inapplicable to our facts.

“Counsel finally submits that the word ‘small’ in the title Small Birds Act refers not to ‘Birds’ but to ‘Act,’ making it The Small Act relating to Birds. With respect, counsel did not do his homework very well, for the Large Birds Act, R.S.O., 1960, c. 725, is just as small. If pressed, I need only refer to the Small Loans Act, R.S.O., 1960, c. 727, which is twice as large as the Large Birds Act.

“It remains then to state my reason for judgment which, simply, is as follows: Different things may take on the same meaning for different purposes. For the purpose of The Small Birds Act, all two-legged, feather-covered animals are birds. This, of course, does not imply that only two-legged animals qualify, for the legislative intent is to make two legs merely the minimum requirement. The statute therefore contemplated multilegged animals with feathers as well. Counsel submits that having regard to the purpose of the statute only small animals ‘naturally covered’ with feathers could have been contemplated. However, had this been the intention of the legislature, I am certain that the phrase ‘naturally covered’ would have been expressly inserted just as ‘Long’ was inserted in the Longshoreman’s Act.

“Therefore, a horse with feathers on its back must be deemed for the purposes of this Act to be a bird, and a fortiori, a pony with feathers on its back is a small bird.

“Counsel posed the following rhetorical question: If the pillow had been removed prior to the shooting, would the animal still be a bird? To this let me answer rhetorically: Is a bird any less of a bird without its feathers?”

Regina v. Ojibway, 8 Criminal Law Quarterly 137 (Toronto 1965), quoted in Stevens v. City of Louisville, 511 SW 2d 228 (1974).