The Problem with Elana Kagan

by Bryan Fischer

The biblical standard of justice is quite clear: no partiality, period. No partiality to the rich, no partiality to the poor. Justice is to be evenhanded and utterly fair. The man – rich or poor – who is in the wrong is to be punished, the man – rich or poor – who is in the right is to be vindicated.

By the way, I have frequently been criticized by voices on the left for suggesting that the ancient civil code of Israel may provide some insight and direction for us in our own jurisprudence. This is an exceedingly odd criticism coming from people who almost universally fancy international law and even think that our own Supreme Court should be influenced it.

Here I am, drawing inspiration from classic international law, and yet being condemned by folks who by their own lights should be commending me for escaping the bounds of jurisprudential parochialism. Go figure.

A scriptural standard of judgment is harsh toward anyone who shows partiality in judging, even if the individual being shown favoritism is poor. In fact, there are very specific criticisms directed at any judge who would bend and distort the law in order to produce verdicts in favor of the poor.

Here are some examples (emphasis mine throughout):

• “You shall do no injustice in court. You shall not be partial to the poor or defer to the great, but in righteousness you shall judge your neighbor” (Lev. 19:15).
• “You shall not fall in with the many to do evil, nor shall you bear witness in a lawsuit, siding with the many, so as to pervert justice, nor shall you be partial to a poor man in his lawsuit” (Ex. 23:2-3).
• “You shall not be partial in judgment. You shall hear the small and great alike“(Deut. 1:17).

This is the standard of judging current chief justice John Roberts affirmed in his hearings. He said (paraphrasing), “If the law favors the little guy in my court, the little guy will win. If the law favors the big guy in my court, the big guy will win.” That is impartiality. That is the biblical standard for every judge at every level.

But listen in contrast to the words of nominee Elana Kagan. She wrote that the mission of the Supreme Court is to “show a special solicitude for the despised and the disadvantaged.”

In other words, she believes it is the role of a judge to bias the law toward the poor, whether the “despised and disadvantaged” are right or wrong. To put it bluntly, she believes in showing partiality to the poor in a court of law, the very thing repeatedly condemned in the Scriptures.

Lady Justice, in her view, is not to be blind, but is supposed to lift her blindfold just long enough to find out what income quintile or ethnic group the folks before her belong to, and then find for the disputant on the lowest  rung of the socio-economic ladder, and do so as a matter of principle.

Her remarkably misguided judicial philosophy is of a piece with that of the president, who has said that he views the “quality of empathy” as “an essential ingredient for arriving at just decisions.” In other words, in the president’s view, judges are supposed to side with whichever disputant they feel the sorriest for, regardless of whether they have committed a crime or not.

This is surely a recipe for injustice of the grossest kind.

This is and ought to be offensive to everyone who believes the Lady Justice ought to be utterly impartial, and offensive to everyone who holds the view of justice taught by the Judeo-Christian tradition.

In sum:

Elana Kagan: “show a special solicitude for the despised and disadvantaged.”

Scripture: “nor shall you be partial to a poor man in his lawsuit…you shall not be partial to the poor…”

When it comes to our courts and our judges, we must as a nation choose between a biblical view of justice and Elana Kagan’s view of justice,which in fact is not justice at all. Truth, common sense and American tradition are not with Ms. Kagan or our president on this one.

To borrow a phrase from Ms. Kagan, it would be “a moral injustice of the first order” for her to be elevated to the Supreme Court.

Bryan Fischer is the Director of Issue Analysis for Government and Public Policy American Family Association.