The liberals cheered when the U.S. Senate confirmed Elena Kagan as the newest Justice on the U.S. Supreme Court. Because she is known to be such an aggressive leftwinger, the liberals were counting on her to join the four liberal Supreme Court justices and produce many 5-to-4 leftwing majorities. Funny thing, the liberals are grumbling about Elena Kagan now. You see, before her appointment, Kagan was not a judge; she was a lawyer in the Obama Administration. So now, she must recuse herself from all the cases she worked on as an attorney, and that turns out to be about half of the important cases that are now pending before the Supreme Court. She will not be participating, for example, in an important appeal concerning one of Arizona’s immigration laws.
With Justice Kagan’s recusal, she won't be casting the deciding vote, and the Supreme Court could easily deadlock 4-4 in key cases. A 4-4 deadlock leaves intact the lower court decision. Democrats are not pleased about this possibility, and have proposed an unprecedented plan to put another liberal on the Court to pinch-hit for Kagan. Democratic Senator Patrick Leahy, chairman of the Senate Judiciary Committee, wants to authorize a retired Justice (such as the liberal David Souter) to sit in for Justice Kagan in cases for which she has recused herself. But retired Justices have left the Court and there is no authority for bringing them back without Senate confirmation.
Senator Leahy’s wacky proposal reminds us of President Franklin D. Roosevelt’s notorious court-packing plan back in the 1930s. FDR never had the same credibility again after his devious plan was laughed out of town.
Democrats knew when they confirmed Elena Kagan that she would not be able to participate in any case that she had handled as an attorney for the Obama Administration. The liberals got what they voted for, and we can't let them change the rules now.
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