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Libertarians say Kagan is bad, but bigger problem exists

Press release from LPHQ posted at

WASHINGTON – Wes Benedict, Executive Director of the Libertarian Party, issued the following statement today:

“Elena Kagan is another bad pick for the Supreme Court. If confirmed, it is likely that she will vote on cases with the intent of advancing political policy goals.

“Kagan will probably vote to advance liberal policy goals, just as some other justices vote to advance conservative policy goals. That is not the place of justices, who should be applying the Constitution, not trying to rewrite it to make society work better according to their views.

“However, the bitter battles over Supreme Court justices expose a more serious problem in our federal government: the legislative and executive branches simply refuse to take the Constitution seriously.

“Once upon a time, Congress felt it had a duty to legislate in accordance with the Constitution. Likewise, past presidents believed that they should veto laws that were not clearly constitutional. But in more recent years, both branches have thrown this crucial duty away. Now their attitude seems to be, ‘We can pass anything we want to, and let the Supreme Court deal with it if they don’t like it.’ That was absolutely not what the American Founders had in mind.

“We shouldn’t have to worry so much about who gets appointed to the Supreme Court. It shouldn’t be the case that a single justice can make all of American society lurch from one direction to another. They shouldn’t have that much power.

“Republicans who want to throw stones at Kagan, ought to ask themselves why they supported the Bush Administration’s blatantly unconstitutional Patriot Act, or why they supported huge expansions of the blatantly unconstitutional Medicare program. When they were in power, they showed absolutely no respect for the Constitution.

“I wish that President Obama had picked a nominee with more regard for the original intent of the Constitution. But even more than that, I wish that he and the members of Congress would stop shirking their responsibility to apply the Constitution themselves.”

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  1. Alexander S. Peak Alexander S. Peak May 14, 2010

    I read in some newspaper not too long ago that the Roberts court, at least according to the author of the article, had a libertarian bend. The article was about the case of dog fight videos. The court ruled that one has the right, under the first amendment, to sell dog fight videos even if dog fighting is itself illegal. I don’t pay enough atttention to the Supreme Court in order to present my own judgement on whether this court does or does not have a libertarian bend, but it was an interesting article, to say the least.

    Alex Peak

  2. Robert Capozzi Robert Capozzi May 14, 2010

    ap, thanks for the Long link. He has a point. I’d also note that while Rs certainly do trample on the Constitution, many conservative legal theorists make essentially the same points as this release. When Ls talk about “original intent” and so on, we sound like conservatives.

    As a political party that wants to have an impact on the country’s direction, I’m not sure we can add much to who’s on the Supreme Court. They’re all pretty bad, but Scalia and Thomas might agree with this release, at least generally.

    I’d just leave the issue alone myself…bigger fish to fry.

  3. Michael Seebeck Michael Seebeck May 13, 2010


  4. Erik G. Erik G. May 13, 2010

    Another brilliant release by Wes (and, as result, another reminder/reason to vote against WAR)!

  5. Alexander S. Peak Alexander S. Peak May 13, 2010

    Excellent release!

    The LP is exactly right. Congress’s attitude for as long as I’ve been paying attention to politics has been, “It’s not our responsibility to care whether or not our laws are constitutional. We’ll pass whatever we want, and let the courts handle our mess!”

    Congress is filled with people less responsible than your average Kindergartner. It’s about time we throw the bums out.


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