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Kagan Defended ObamaCare As Solicitor General - Case closed on recusal.
Human Events ^ | 01/27/2012 | John Hayward

Posted on 01/27/2012 2:47:35 PM PST by neverdem

Until now, those who say Supreme Court Justice Elena Kagan shouldn’t recuse herself from the upcoming ObmaCare case, even though federal code clearly requires her to do so, have argued that even though she was President Obama’s Solicitor General, she was kept hermetically sealed away from anything pertaining to ObamaCare. This was supposedly done even though the Supreme Court seat she would later occupy wasn’t vacant yet – a forward-looking move designed to keep her viable for both the Court seat, and the ObamaCare thumbs-up desperately needed by the President in a few weeks.

That excuse always seemed preposterous. Solicitor General Kagan was kept totally out of the loop on the most important legal defense her Administration would ever mount, in order to keep her unsullied for the chance that she might sit on one of the most important cases the Supreme Court would ever hear?

Well, the Kagan firewall just went up in smoke. Fox News reports:

With just weeks until the U.S. Supreme Court considers the constitutionality of President Obama's health care law, there are new calls for Justice Elena Kagan to recuse herself from the case.

Her critics point to a 2010 case regarding a San Francisco health measure, in which then-Solicitor General Kagan's office filed an amicus brief touting the newly passed health care law.

In May 2010, after Kagan had been nominated to the nation's highest court, Principal Deputy Solicitor General Neal Katyal sent her a memo outlining the cases in which she had "substantially participated." Kaytal specifically referenced the Golden Gate case, noting that it had been "discussed with Elena several times."

That's enough to convince Heritage Foundation Senior Legal Fellow Hans von Spakovsky that Kagan shouldn't take part in the current health care case before the high court.

"I don't see how any ethical lawyer adhering to professional codes of conduct could not consider that they need to recuse themselves from this case," he said.

(Emphases mine.) And we all know that Obama appointees hold themselves to the highest ethical standards, don’t we?

Kagan defenders have been hilariously reduced to hair-splitting about how the “issues” in the San Francisco case were so unique that she’s still in the clear to rule on ObamaCare in general. We really have degenerated into a banana republic if those arguments are taken seriously.

U.S. code could not be more clear on this issue. The third condition set forth for judicial disqualification reads, in its entirety: “Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”

Until today, Kagan’s defenders pretended to understand what those words meant. That’s why they so desperately insisted that she never went anywhere near ObamaCare during her Solicitor General days. That argument was absurd, but everyone trying to keep her on the case at the Supreme Court understood it was vital.

There are emails showing Kagan celebrating passage of ObamaCare during her time with the Administration, but that’s different, even though many observers find it unseemly. It skirts the edge of the prohibition against “personal bias” on the part of judges, but the law is less concerned with appearances than with concrete relationships that compromise judicial impartiality, and ruin public trust in the judiciary. Any reasonable person can understand the absurdity of allowing someone who actively argued one side of a case to sit in judgment upon it.

Elena Kagan evidently understands the standards for disqualification, because in December she recused herself from the Supreme Court’s hearing of the Justice Department challenge to Arizona’s immigration law, precisely because she was Solicitor General when the DOJ suit was filed.

Game, set, match. There’s nothing else for any ethical jurist or lawyer to discuss. Kagan must not rule on ObamaCare.


TOPICS: Business/Economy; Culture/Society; Editorial; Politics/Elections
KEYWORDS: kagan; obamacare; recusal; scotus
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1 posted on 01/27/2012 2:47:40 PM PST by neverdem
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To: neverdem

BTTT


2 posted on 01/27/2012 2:48:31 PM PST by morphing libertarian
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To: morphing libertarian

The fix is in


3 posted on 01/27/2012 2:50:17 PM PST by pawpawrick (I had a life once but my job ate it)
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To: pawpawrick

The appointment in of itself assured that. Don’t know what Kennedy will do.


4 posted on 01/27/2012 2:54:05 PM PST by morphing libertarian
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To: neverdem

So what happens if she doesn’t recuse herself? Can the Republican House impeach her?


5 posted on 01/27/2012 2:55:06 PM PST by KansasGirl (Romney to Santorum: Obamneycare "nothing to get angry about".)
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To: neverdem

Case closed in a nation of laws.

We are not in a nation of laws, albeit it is an emerging police state.


6 posted on 01/27/2012 2:56:11 PM PST by Psalm 144 (Voodoo Republicans: Don't read their lips - watch their hands.)
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To: neverdem

Didn’t she flat out lie about it during the Senate confirmation hearings?


7 posted on 01/27/2012 2:57:25 PM PST by djf (http://www.freerepublic.com/focus/f-chat/2801220/posts)
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To: neverdem

What happens if it is 4-4 on the individual mandate? We have had different rullings from the appellate courts.


8 posted on 01/27/2012 3:01:02 PM PST by kabar
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To: neverdem; Lurking Libertarian; JDW11235; Clairity; TheOldLady; Spacetrucker; Art in Idaho; ...
SUPREME COURT OF THE UNITED STATES

FReepmail me to subscribe to or unsubscribe from the SCOTUS ping list.

9 posted on 01/27/2012 3:03:12 PM PST by BuckeyeTexan (Man is not free unless government is limited. ~Ronald Reagan)
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To: KansasGirl
No, the Republicans in the House would never impeach her. They would be called homophobes.

Anyway, the rule cited says "he" and Kagan's female so it doesn't apply.

10 posted on 01/27/2012 3:03:58 PM PST by Verginius Rufus
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To: neverdem

It would seem like the case is closed, but I’ll be shocked if she does recuse.


11 posted on 01/27/2012 3:05:04 PM PST by BuckeyeTexan (Man is not free unless government is limited. ~Ronald Reagan)
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To: Jet Jaguar; NorwegianViking; ExTexasRedhead; HollyB; FromLori; EricTheRed_VocalMinority; ...

The list, Ping

Let me know if you would like to be on or off the ping list

http://www.nachumlist.com/


12 posted on 01/27/2012 3:12:56 PM PST by Nachum (The complete Obama list at www.nachumlist.com)
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To: neverdem

More info here, too:

“Obamacare Litigation: More “Golden” Reasons Why Justice Kagan May Need to Recuse Herself”

http://blog.heritage.org/2012/01/13/obamacare-litigation-more-“golden”-reasons-why-justice-kagan-may-need-to-recuse-herself/


13 posted on 01/27/2012 3:15:50 PM PST by Qbert ("The best defense against usurpatory government is an assertive citizenry" - William F. Buckley, Jr.)
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To: Psalm 144

Banana Republic without bananas.


14 posted on 01/27/2012 3:20:09 PM PST by rawcatslyentist (It is necessary that a person be born of a father who is a citizen; ~Vattel's Law of Nations)
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To: neverdem

She won’t recuse and no power that we have can make her. Even so, the vote would then just become 4 to 4 just for spite.


15 posted on 01/27/2012 3:26:04 PM PST by itsahoot (You are no longer a person, you are now a Unit when you need health care.{)
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To: neverdem

I don’t see how any ethical lawyer adhering to professional codes of conduct could not consider that they need to recuse themselves from this case,” he said.
...........................................................

We are talking about ethical lawyers are we not?

I believe that probably lets her out.


16 posted on 01/27/2012 3:26:56 PM PST by Venturer
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To: neverdem

It is apparent that anyone on the inside circle of the Obozo or of power and wealth doesn’t need to be concerned about our laws. At the expense of the common citizen, those people are above the LAW. Even John Roberts needs to be b**ch slapped over his stand on this Kagan recusal issue. The Obozo is an illegal president and every justice on that court knows it so they accept two illegal supreme court justices as well. The US is worse than a banana republic. We had the means and the wherewithal to stop the erosion of enforcement of our laws for those of power and wealth but so far we have stood and done nothing.


17 posted on 01/27/2012 3:30:09 PM PST by drypowder
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To: drypowder

My mistake, we have started to do something, it’s called the Tea Party. It is not dead as old Harry and the hag would like everyone to believe.


18 posted on 01/27/2012 3:36:49 PM PST by drypowder
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To: drypowder

What is the chance that Kagan’s unethical stance will be enough to push Justice Kennedy to be the 5th vote against Obamacare? If he’s on the fence, this might be enough to open his eyes to the left’s open contempt of our founding principles.


19 posted on 01/27/2012 3:43:31 PM PST by TomT in NJ
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To: neverdem
“Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”

Unless she would be hearing an appeal of an particular case in which she participated, I don't think the quoted section would apply (but if such a case does come before her, refusal would obviously be required). If the section were read so broadly as to suggest that her participation on one case involving Obamacare would disqualify her from hearing others, such a reading would also require that when a case comes before the court regarding a matters which the court has previously decided, any judges who were on the court when the previous case was decided would be required to recuse themselves--clearly absurd.

20 posted on 01/27/2012 3:49:07 PM PST by supercat (Renounce Covetousness.)
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To: neverdem

Here is the bigger question. Has she told her fellow jurists the same lie. If so will they see this a as breach of ethics and sanction her?


21 posted on 01/27/2012 4:39:47 PM PST by Walkingfeather
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To: Verginius Rufus

“. . .and Kagan’s female. . .”

Are you sure. . . .?


22 posted on 01/27/2012 4:43:08 PM PST by Hulka
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To: neverdem

Did she state before her confirmation hearing that she had nothing to do with the health care law???


23 posted on 01/27/2012 4:47:25 PM PST by Walkingfeather
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To: Walkingfeather
Who will sanction her?
I don't think the other members of the SCOTUS have any real jurisdiction over each other. I think the Chief Justices sole duty is to assign who writes the opinions.
Certain positions in the USG require a sense of honor in the participants, that characteristic is lacking in the left. Remember in their minds no non-Marxist (or socialist) institution or custom has legitimacy. Therefore rules mores or customs that support those institutions need not be followed.

If she does not recuse herself from the Obamacare hearings she must be impeached and removed from the bench. If this is not done there no longer will ba any such thing as judicial conflict of interest. We should have a GOP Congress, the questions is will they have the balls to do it.

24 posted on 01/27/2012 4:55:27 PM PST by Reily
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To: Walkingfeather

It’s a shame she’s not honorable enough to put this question away now. That said, if she hasn’t recused by the time the case is heard, Plaintiff’s counsel and others should submit Kagan’s amicus brief into the Supreme Course record and reference it in their arguments. If she’s on the bench when Plaintiff’s counsel makes oral arguments, counsel’s first words should specifically reference her and point to some argument or parallel to the current case in her amicus brief (i.e. as Solicitor General Kagan argued in her amicus brief dated...). If she does not recuse - file bar complaints and go after her law license.

This business reeks. That said, if she is on the bench at oral argument and is in so many words called out by plaintiff’s counsel, then the court does not strike down the law on multiple grounds, the afterhocks might well end the Obama administration even if it may have otherwise survived. The alternative in that instance, which would be the demise of the courts as a third branch of government and check against excesses of the other two branches, is too terrible to imagine.


25 posted on 01/27/2012 5:02:37 PM PST by vrwconspiracist (The Tax Man cometh)
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To: neverdem
Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.” <<<

I see the loop hole!...2nd word!...it says “he”

Gonna need a TSA employee with latex gloves to make a ruling...

26 posted on 01/27/2012 5:37:28 PM PST by M-cubed
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To: neverdem
Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.” <<<

I see the loop hole!...2nd word!...it says “he”

Gonna need a TSA employee with latex gloves to make a ruling...

27 posted on 01/27/2012 5:37:46 PM PST by M-cubed
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To: wardaddy; Joe Brower; Cannoneer No. 4; Criminal Number 18F; Dan from Michigan; Eaker; Jeff Head; ...
The Decline of Violence - Neuroscientist Steven Pinker on the triumph of peace and prosperity over death and destruction

No Need to Panic About Global Warming

Slashing America's Defense: A Suicidal Trajectory

Issa Demands Access to Second US Attorney who Supervised Operation Fast and Furious

Some noteworthy articles about politics, foreign or military affairs, IMHO, FReepmail me if you want on or off my list.

28 posted on 01/27/2012 5:46:12 PM PST by neverdem (Xin loi minh oi)
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To: Qbert

Thanks for the link.


29 posted on 01/27/2012 6:58:12 PM PST by neverdem (Xin loi minh oi)
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To: vrwconspiracist

I am very very conservative and I would bet she will recuse. But not until the time of the case. She will embarrass the court.


30 posted on 01/27/2012 7:00:31 PM PST by Walkingfeather
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To: M-cubed

LOL


31 posted on 01/27/2012 7:20:55 PM PST by Lauren BaRecall (I declare for Santorum)
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To: neverdem; Jet Jaguar; Lady Jag; Slings and Arrows; maggief; Dog; BP2; Candor7; ...

SWEET PING


32 posted on 01/27/2012 9:23:46 PM PST by bitt (Socialism works great until you run out of Chinese money.)
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To: supercat
If the section were read so broadly as to suggest that her participation on one case involving Obamacare would disqualify her from hearing others, such a reading would also require that when a case comes before the court regarding a matters which the court has previously decided, any judges who were on the court when the previous case was decided would be required to recuse themselves--clearly absurd.

There's a big difference between actively defending a case and sitting on the bench while the hearing is going on.

33 posted on 01/28/2012 3:34:18 AM PST by raybbr (People who still support Obama are either a Marxist or a moron.)
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To: Nachum

Kagan the plant. She’s EVIL as it SOda-mayer weiner.


34 posted on 01/28/2012 5:21:36 AM PST by Karliner ( Jeremiah 29:11, Romans 8:28, Romans 8:38"...this is the end of the beginning."WC)
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To: neverdem

JACK CADE.
Valiant I am.
SMITH [aside].
‘A must needs; for beggary is valiant.

JACK CADE.
I am able to endure much.

DICK [aside].
No question of that; for I have seen him whipp’d three market-days together.

JACK CADE.
I fear neither sword nor fire.

SMITH [aside].
He need not fear the sword; for his coat is of proof.

DICK [aside].
But methinks he should stand in fear of fire, being burnt i’ th’hand for stealing of sheep.

You can almost hear the rim-shot after everything Dick or Smith say here.
Cade proceeds to go more and more over the top, and begins to describe his absurd ideal world:

JACK CADE.
Be brave, then; for your captain is brave, and vows reformation. There shall be in England seven half-penny loaves sold for a penny: the three-hoop’d pot shall have ten hoops; and I will make it felony to drink small beer: all the realm shall be in common; and in Cheapside shall my palfrey go to grass: and when I am king,- as king I will be,-
ALL.
God save your majesty!

Appreciated and encouraged, he continues on in this vein:
JACK CADE.
I thank you, good people:- there shall be no money; all shall eat and drink on my score; and I will apparel them all in one livery, that they may agree like brothers, and worship me their lord.
And here is where Dick speaks the famous line.
DICK.
The first thing we do, let’s kill all the lawyers.


35 posted on 01/28/2012 5:24:50 AM PST by Karliner ( Jeremiah 29:11, Romans 8:28, Romans 8:38"...this is the end of the beginning."WC)
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To: neverdem

Bump


36 posted on 01/28/2012 5:33:51 AM PST by KC Burke (Newton's New First Law, Repeal and Restore!)
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To: neverdem
In my opinion, the chances of recusing herself are higher than the chances of the sun rising in the west.

My personal belief is that it will be held as "Constitutional". Which will please both the Republican and Democrat Parties.

37 posted on 01/28/2012 5:41:59 AM PST by sport
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To: neverdem; Tzar; word_warrior_bob; risen_feenix; EnglishCon; Bill W was a conservative; verga; ...
+

Freep-mail me to get on or off my pro-life and Catholic List:

Add me / Remove me

Please ping me to note-worthy Pro-Life or Catholic threads, or other threads of general interest.


38 posted on 01/28/2012 5:43:33 AM PST by narses
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To: AdmSmith; AnonymousConservative; Berosus; bigheadfred; Bockscar; ColdOne; Convert from ECUSA; ...

Thanks neverdem.


39 posted on 01/28/2012 6:06:45 AM PST by SunkenCiv (FReep this FReepathon!)
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To: kabar

I guess the individual mandate would be deemed unconstitutional, and the president would not be able to enforce it, in districts covered by the federal judicial circuit whose Court of Appeals ruled it unconstitutional, since such decision would stand; but the individual mandate would be enforceable in the circuit whose Court of Appeals ruled it constitutional. And as for other circuits, they could do whatever they wanted.

A rational president would realize that having an entire federal judicial circuit in which the individual mandate could not be enforced would cause the entire scheme to unravel, and would move to adopt a new healthcare scheme, just as he would had the Supreme Court struck it down, but we’re not dealing with a rational president.

In any event, we need to get 5 Justices to declare the individual mandate unconstitutional, and elect a Congress and a president who will repeal the entire law.


40 posted on 01/28/2012 7:31:48 AM PST by AuH2ORepublican (If a politician won't protect innocent babies, what makes you think that he'll protect your rights?)
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To: raybbr
There's a big difference between actively defending a case and sitting on the bench while the hearing is going on.

Perhaps instead of saying "on the court", I should have said "heard the previous case". If a case comes before a court which is similar to one that it has already decided, any judges who were involved in the previous case may easily have a stronger-than-proper attachment to whatever decision they made there, and attempt to apply it to the new case whether or not it is really applicable; nonetheless, I really don't see lawyers on either side arguing that issuance of decisions on earlier cases should preclude a judge from hearing later related ones.

41 posted on 01/28/2012 7:53:28 AM PST by supercat (Renounce Covetousness.)
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To: Hulka
"...and Kagan's female...."

Are you sure....?

I hesitated before writing that, but I assume she has "F" on her driver's license.

That is, assuming Massachusetts limits the options to "M" and "F." Not having lived there, I don't know for sure.

42 posted on 01/28/2012 9:04:43 AM PST by Verginius Rufus
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To: vrwconspiracist

The chief justice said last week that he is confident in the justices discernment..blah blah blah. My guess is that they already know that it will be a majority against Obama. Most courts have ruled that way. Kagen will recuse knowing that her vote will not matter, because Most likely Obama will not be president and she has the rest of her life to be one of the supremes. I have read stories that she had been hanging out with scalia and family. You are one of a few of entire branch of government. Very exclusive club. These people are intellectual giants around you on the law. My guess is she is humbled and will play it out like i said. It is the best way she can handle it for her future.


43 posted on 01/28/2012 9:43:07 AM PST by Walkingfeather
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To: neverdem

Thanks for the ping!


44 posted on 01/28/2012 9:44:55 AM PST by Alamo-Girl
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To: AuH2ORepublican

There is no severability clause in the legislation, so if the individual mandate is deemed unconstitutional, the judges could declare the entire law unconstitutional making repeal unnecessary. SCOTUS will have to address that in their decision.


45 posted on 01/28/2012 2:00:12 PM PST by kabar
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To: Walkingfeather

“I have read stories that she had been hanging out with scalia and family.”

That would be very disappointing. I never thought Scalia to be the sort of man who would allow a vile reprobate like that anywhere near his family.


46 posted on 01/28/2012 2:42:30 PM PST by dsc (Any attempt to move a government to the left is a crime against humanity.)
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To: kabar

The operative word there is “could.” Yes, if SCOTUS declares the individual mandate unconstitutional, it could strike down the entire law given that it’s such a central part of the entire scheme (and without it the requirement that health insurance cover preexisting conditions will drive every insurer to bankruptcy), but that’s not what the circuit court did.


47 posted on 01/28/2012 4:33:04 PM PST by AuH2ORepublican (If a politician won't protect innocent babies, what makes you think that he'll protect your rights?)
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To: dsc

Speaking for the vast majority of us that are Vile Reprobates in need of redemption....I’m curious, if you were Scalia, (a man that is serious about his faith, and trying to live as Christ would...) and you had the chance to create an authentic friendship and show the Love of Christ to Kagen, would you do it?


48 posted on 01/29/2012 6:15:57 PM PST by Walkingfeather
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To: Walkingfeather

I will write loudly so that you can hear me way up there on your high horse.

“Speaking for the vast majority of us that are Vile Reprobates in need of redemption”

The sole basis for your scolding is your assertion that you—and by extension I—are in a class with scumbags like Kagan, and, I suppose, Chairman Maobama and the endless parade of filth to which the demonrats have subjected us since FDR.

While it is true that all fall short, and all are sinners, a sweet little old lady’s lack of charity for young women who come to Church dressed like naughty ladies of the evening is *far, far, far* from the despicable scumbagitude of a leftist.

All leftist thought, from the limousine liberalism of a George Clooney to the mass murders of Mao, Stalin, or Pol Pot, is of and from Satan. It is a contaminant in the human cognosphere, not a natural component of it. I have no reason to think that you regularly—or ever—commit sins as grave as a leftist like Kagan does with her every thought.

I therefore reject the notion that you are within light-years of being as foul a filthbucket as Kagan. I further assert that no one not a leftist is as foul as that.

“....I’m curious, if you were Scalia, (a man that is serious about his faith, and trying to live as Christ would...) and you had the chance to create an authentic friendship and show the Love of Christ to Kagen, would you do it?”

That attack-disguised-as-a-question presumes that such a chance existed.

No leftist is *ever* a friend of someone not a leftist. Leftists are leftists before all else. They may pretend friendship, but the moment that pretense becomes inconvenient, out the window it goes.

I don’t doubt for a moment that Scalia is a better man than I, but regarding any “friendship” with Kagan, I would have to say to him, “If you lie down with dogs, you get up with fleas.”

As far as showing the Love of Christ to Kagan, and skipping over for the moment how bad an example I am, it was swine like Kagan before whom Christians are enjoined not to cast their pearls.

If you have a bucket of clean water and a drop of sewage, and you drop the sewage into the water, what do you have then?

A bucket of sewage.

It is in large part by following that logic that leftists have taken control of so much in our country, and I would be much less surprised to learn that Kagan had distorted Scalia’s vision on a principle than to hear that Scalia had broken down the ramparts of illogic that protect her prejudices.


49 posted on 01/30/2012 12:28:11 AM PST by dsc (Any attempt to move a government to the left is a crime against humanity.)
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To: dsc

LUKE 18:10 The Parable of the Pharisee and the Tax Collector

9To some who were confident of their own righteousness and looked down on everybody else, Jesus told this parable: 10“Two men went up to the temple to pray, one a Pharisee and the other a tax collector. 11The Pharisee stood up and prayed abouta himself: ‘God, I thank you that I am not like other men—robbers, evildoers, adulterers—or even like this tax collector. 12 I fast twice a week and give a tenth of all I get.’

13“But the tax collector stood at a distance. He would not even look up to heaven, but beat his breast and said, ‘God, have mercy on me, a sinner.’

14“I tell you that this man, rather than the other, went home justified before God. For everyone who exalts himself will be humbled, and he who humbles himself will be exalted.”


50 posted on 01/30/2012 5:58:22 AM PST by Walkingfeather
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