December 11, 2010

Elena Kagan's First Vote Was Both Baffling and Predictable

By Anthony W. Hager

Once Elena Kagan was confirmed to the Supreme Court, it was certain that she would, at some point, cast a vote or render an opinion. It sort of goes with the territory. Of near equal certainty was that her initial ruling would embody everything objectionable and inexplicable about the Supreme Court, judges, lawyers, and the legal system in general. Well, Justice Kagan has cast that first vote, and to little fanfare, I might add. In so doing, she justified my confidence in her ability to baffle.

Granted, Kagan's first decision wasn't a thorough legal dissertation. It was simply a recorded vote in support of a losing opinion. However, she did confirm what conservatives expected. She voted to stay the execution of a convicted murderer, uphold a Ninth Circuit Court decision, and support a lower judge's ruling that questioned the safety of a lethal injection drug.

For a known Regressive jurist to coddle convicted murderers and side with the "Ninth Circus" is completely predictable -- understandable, no, but completely predictable. But to question the safety of a lethal drug? Maybe I'm unclear on the concept. It just seems logical that a drug administered to fulfill a condemned prisoner's death sentence would be, by necessity, unsafe. If the drug were safe, it would have difficulty achieving its stated purpose, now, wouldn't it? God help us, what has happened to our brains? Educated jurists speculating on whether or not lethal drugs are safe for their intended use is a sure sign that our system has abandoned all sanity and common sense.

What's next? Warning labels on sodium thiopental? We have labels on other drugs, most of which cause remedies to sound worse than the diseases they treat. I can almost hear the disclaimer now.

Are you suffering from violent antisocial outbursts that culminate in shooting, stabbing, strangling, or dismembering? One drug, Executus, has been proven to alleviate recurrences of these behavioral abnormalities. Executus is suitable only for patients professionally diagnosed with Chronic Criminalitis, especially Premeditated Murderosis. Diminished breathing and pulse rate accompanied by low or nonexistent blood pressure are common among users of Executus. Some users may experience undesirable side affects, including partial paralysis, anxiety, depression, and signs of panic. These symptoms are always temporary. If signs of life persist, stop taking Executus at once and contact your nearest ACLU chapter.

Give me a break! How many times must capital punishment be dissected before people like Elena Kagan are no longer trusted with judicial authority?

The Eighth Amendment prohibits government from dispensing "cruel and unusual punishments." Not only is that proper, but it's also wholly compatible with our cultural values. No civilized person wants to brutally torture convicted murderers to achieve vengeance or satisfy bloodlust, or simply for hoots, regardless of how heinous the condemned treated their victims. There's no burgeoning movement -- not even among the most ardent death penalty supporters -- to reintroduce crucifixion, iron maidens, burning at the stake, or drawing and quartering as practicable forms of capital punishment. But death sentences aren't the antithesis of our Eighth Amendment protections, as evidenced by the fact that capital punishment was routinely used when the Constitution was debated and ratified.

Speculating on the safety of sodium thiopental may sound nuanced, reasoned, and deeply thoughtful in circles where common sense is considered an archaic relic of our ignorant heritage. Such reasoning may gain its advocate a favored seat among the intelligentsia, for whom dismissing traditionally proven solutions is a sign of superior knowledge. But it smacks of shortsighted foolishness to me -- a thorough waste of time, effort, and discourse.

Elena Kagan carried a warning label that foretold her voting tendency. However, like the warning labels on prescription drugs, we tend to ignore a prospective jurist's precedents, positions, and opinions. Thus do we make perplexing and painful mistakes like Kagan -- mistakes that last a lifetime.

Anthony W. Hager has authored more than 250 articles for various newspapers, periodicals, and websites. Contact him via his website, www.therightslant.com.