Why Elana Kagan is no Tina Brown


http://www.JewishWorldReview.com |

Only Barack Obama, who ran for president just two years into his first senate term and was awarded the Nobel Peace Prize for accomplishments to be named later, could make inexperience a virtue.

Obama nominated Elena Kagan to the Supreme Court precisely because, unlike every nominee since 1971, she was never a judge.

Given her lack of a judicial record and a very few published law review articles, Americans need to scrutinize every little thing we know about her.

Here’s a tidbit JewishWorldReview.com discovered that could foreshadow how she might rule on the bench.

As articles editor for the Harvard Law Review in 1985 Kagan helped shepherd into print a racially noxious story by a radical law professor and architect of Critical Race Studies, which is essentially “blame whitey” in legal vernacular.

This was no literary fiction. It was the kind of story that would never get past Tina Brown at the New Yorker. What Derrick Bell, the author, was doing, observes legal scholar Arthur Austin, was “making broadside comments on the tyranny of white people.”

Austin, in an article, ranked Bell’s fable one of the top 10 politically correct law review articles of all time.

Bell’s fiction was a way to circumvent law review standards. He made outlandish statements through a fictional alter-ego, modeled after a six foot three black woman in Portland, Oregon that would have been impossible to sustain with the logic and evidence required in a non-fiction piece. The goal was to access a readership that otherwise would not have countenanced such hateful notions.

“What the hell was that doing in a law review article?” asked Professor Austin in an interview with JewishWorldReview.com yesterday. “Bell would publish these things in legal journals that had nothing to do with the law.”


Kagan was his enabler. She helped get something published that turned on all kinds of noxious sentiments about society and a relativistic view of the law.

“Several editors worked with me on the piece but Elena Kagan was the articles editor [known officially as supervising editor],” Bell told JewishWorldReview.com. “There was real dedication and support by Elena.”

Kagan’s participation in an article that replaced facts and logic with subjective narrative does not bode well for her tenure on the Court. Considering that as articles editor of the Harvard Law Review she willingly discarded standards there is good reason to think that she might do this on the Supreme Court.

Critical Legal Studies — a school of thought which deems law fundamentally oppressive and renders everything completely relative — is the linchpin of judicial activism. If everything is the product of subjective perspective then the law becomes whatever judges make it.

As Bell asserted yesterday in an interview with JewishWorldReview.com, “What the hell is the rule of law? The law is whatever you say it is.”

Instead of dissenting from PC orthodoxy at Harvard Law School in 1985 Kagan did her part to embolden it. Bell’s piece was published when Critical Legal Studies was all the rage. Her role in the Bell article says more about her than the oblique law review articles she’s written under her own name.

Basically, Kagan helped tailor Bell’s law review article to the day’s political fashions. “At this point Critical Legal Studies movement was in full flower,” Bell remembers. “Legal publications generally were anxious for articles that broke away from traditional analysis of legal precedent.”

Bell’s “Civil Rights Chronicles” did just that. They are a dialogue between Bell and the fictional Geneva Crenshaw, a lawyer and civil rights activist who, in the author’s own words, “is always the strong militant revolutionary type person.”

The Civil Rights Chronicles, Bell’s forward to the November 1985 law review about the 1984-1985 Supreme Court term, is credited with spawning other fictional narratives in law reviews. It also led to four books by Bell with Geneva Crenshaw stories.

Each chronicle starts with a dreamlike sequence. Bell and Crenshaw then argue about the legal ramifications the story entails.

Both agree that society is fundamentally racist. Austin, the legal scholar, says that in his dialogue with Crenshaw Bell “laid out his thesis that when given a choice between redemption and racism the white culture inevitably opts for the latter.”

The only disagreement between Crenshaw and Bell is whether the country is hopelessly racist. Bell thinks the courts can change society but Crenshaw thinks they can not. She also bristles with contempt for America. Bell’s heroine says blacks get a sense of belonging in Third World countries that they “very seldom feel at home.

In one chronicle Crenshaw is hired by a hitherto all-white law school. Five more minority professors are hired but after that the dean, nameless but clearly racist, patronizing and pompous tells her enough is enough.

He refuses to hire an exceptional black candidate because any more diversity would make it impossible for the school to maintain its white identity. When Crenshaw pushes the candidate, the dean tells her that, “We do appreciate your recruitment efforts, Geneva, but a law school of our caliber and tradition simply cannot look like a professional basketball team.”

Crenshaw and Bell then argue whether the professor denied employment could successfully sue the school for discrimination.

In Crenshaw’s “Chronicle of the Amber Cloud” America is awash in racist double standards. An “amber cloud” descends on the land and overnight “white adolescents with wealthy parents” are “stricken with a debilitating affliction, unknown to medical science, whose symptoms are all too familiar to parents whose children are both poor and blacks.”

The media calls it “Ghetto Disease.”

“Youngsters who had been alert personable and confident become lethargic disinterested , suspicious withdrawn and hopelessly insecure.” In other words, their “behavior resembled that of many children in the most disadvantaged and poverty-ridden ghettoes.

After “a year of strenuous effort” and large sums devoted to finding a cure for Ghetto Disease, the president announces a cure which would cost $100,000 per person.

Civil rights leaders ask that nonwhite youths whose identical behavioral symptoms were caused by “poverty, disadvantage and racism” get to use the new treatment. But Congress passes legislation that limits it to whites only.

The whole thing might strike many as a paranoid fantasy but Bell says it’s a reality. He claims the government only paid attention to the most recent recession when white unemployed figures rose to the level of those for blacks.

In the final sequence, “The Chronicle of the Slave Scrolls,” Crenshaw on a visit to Africa discovers a two foot long replica of a slave ship. Inside, she finds “three tightly rolled parchment scrolls.”

On them, seemingly impenetrable questions were written. Questions like “How does the human spirit accommodate itself to desolation?”

The answer provided is “the readily available but seldom read history of slavery in America. The history is gory and brutal, filled with more murder, mutilation and rape than most of us imagine or comprehend.”

But, hey, whatever works. When she brings the “slave scrolls” back to the church she heads it provides the same kind of solace that spirituals did slaves.

Word spreads throughout the black community. “Within a year, the marks of historic oppression–crime, addiction, self hate–slowly begin to erode.”

Enter the white man determined to keep the black man down. In this case, it’s the Christian Right. An unnamed television minister says the slave scrolls actually breed racial hatred. Over the objections of blacks and civil libertarians almost every state enacts “Racial Toleration Laws” which ban the teaching about America’s racist past.

Sensing defeat her Church burns the scrolls.

So that’s the fiction what’s the reality?


Well, is this a big deal? Does anyone doubt that if a Republican Supreme Court nominee had helped edit a law review article that stereotyped blacks the way Bell’s piece did whites he would be harshly criticized?”

We know that Kagan is comfortable in far left precincts of academia. Now it’s time for Senators to ask Kagan if she agrees with the ugly critique of society that she helped Bell propagate.

Mr. Gahr has written about race for the Wall Street Journal, Washington Times, and American Spectator .

Jewish World Review May 13, 2010

By Evan Gahr

Mr. Gahr has written about race for the Wall Street Journal, Washington Times, and American Spectator .

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