It seems like it’s only been a day since Elena Kagan was sworn in as the 112th justice of the Supreme Court of the United States, but she never stood a chance.  Before her first question, first vote, her first opinion, her first dissent, she’s already busy freeing criminals to rape your daughters and pillage your village. 

As those of us disinclined to believe that every defendant deserves the death penalty aren’t necessarily huge fans of Justice Kagan, any more than we were of Justice Sotomayor, who we learned was an avowed lefty crim-symp only after our hopes of winning in the Second Circuit were crushed under her wise Latina heel, we might be surprised to learn how little we know.

Via Doug Berman , I was schooled by the tolerant and wise Kent Scheidegger at Crime and Consequences.

I do not expect anyone nominated by the present administration to be a positive force in criminal law, but I am more concerned about Justice Kagan than Justice Sotomayor. The latter’s experience as a deputy district attorney and trial judge assured us that she had looked evil in the face and knew how bad violent criminals really are. A career spent in the ivory tower provides no such assurance. It is too easy to be blase about crime and wring your hands over the poor, unfortunate torturer-rapist-murderer when you only read the facts in a transcript or opinion and then go home to your safe, leafy neighborhood.

Suddenly, Justice Sotomayor is looking pretty good compared to the pointy-headed Kagan?  Who knew that she was going from zero to hero in the eyes of those who look for “a positive force.”  May the force be with you, Sonia.

A commenter, calling him/herself “Cal. Prosecutor,” no doubt as an affront to positive forces everywhere, raised some points in response to Scheidegger’s learned speculation.

Kent, did your concern extend to CJ Roberts? He never served as a trial judge and the closest he came to being a prosecutor was serving as special assistant to AG William French Smith.

Justice Scalia has spent considerable time in multiple ivory towers, also never served as a trial judge, and the closest he came to looking evil in the face was when he supported Nixon’s claim to ownership of certain infamous tapes while serving with the Office of Legal Counsel for the Justice Dept.

Justice Thomas was never a trial judge and while he worked with in the Missouri AG’s Office, I understand that it was in the tax division.

Justice Kennedy took over his father’s private law firm and was chiefly known in Sacramento as an effective lobbyist, giver of lavish parties and drafting a state initiative on spending before going to the 9th Circuit.

I certainly would agree with you that we should have more Supreme Court Justices that had actually served in the trenches of criminal law, like Alito, Sotomayor or O’Connor. Perhaps then we would not see such ivory tower opinions like the much-lamented (by us prosecutors, anyway) Crawford case where Justice Scalia infamously “[left] for another day any effort to spell out a comprehensive definition of testimonial.” You may recall that Justice O’Connor (a former prosecutor) had a great deal to say in her dissent about that rather airy detail.

Until that day comes, I hope that you will permit an observation that your apprehension appears driven more by ideology than any lack of experience in looking evil in the face.

Ideology?  Rapist lover.  Pillager sympathizer.  Bleeding heart liberal prosecutor.  And Scheidegger, as would any concerned pedagogue faced with such tripe, slowly typed out the obvious retort.

It is the combination of left-wing ideology and ivory tower background that has me most concerned. Sotomayor’s real-world experience may moderate the pro-defendant leanings that generally come with a left-leaning orientation. An ivory-tower background is far less of a concern with conservative nominees because they (generally) do not have a pro-defendant leaning in need of moderating.

It’s not about ideology, you moron.  It’s about being pro-defendant.  It’s about being evil.  Real world experience can moderate that pro-defendant left-leaner.  After all, once a judge has stared evil in the eyes, they know that defendants are evil, evil, evil, and we need law to make sure that evil defendants can never prevail to commit evil again. And again and again.  Because that’s what evil does, and pro-defendant left-leaners are standing beside their evil compatriots, if only in spirit, and relish in their rapes and pillages (wiping the foam off lips with long, pointed tongue).

Some might find Scheidegger’s rhetoric absurd and silly, the mindless ranting of a neocon so blind with simplistic, knee-jerk, ideological rage that he sounds just a wee bit like a lunatic.  But not me.  Neither Scheidegger, nor his combat in arms, Bill Otis, are fools.  Indeed, they are both smart and focused, and know how to put a pre-emptive agenda to damn good use. 

By castigating Elena Kagan in advance of her getting the final fitting on her new robe, they hope to push her to “moderate” any inclination she might have toward decisions that might favor the defense to prove that she’s not just another pro-defendant left-leaning pointed-headed justice.  They already know that she’s hardly the new William O. Douglas, and now they’re fighting to see how far she can be pushed.

Oddly, I agree with Kent in many respects, about the need for justices who have real experience in the trenches, but not just sucking on the government teat.   Justices who represented human beings when they were real lawyers, who stood in the well while some half-awake political hack demonstrated that he hadn’t read a decision since law school, and made clear that it wouldnt alter his decision if he had.  How about justices who can project the real world significance of the things they decide, like the new professionalism of police (tasers in place of the barbaric blackjacks, brass knuckles and the storied rubber hose), or furtive gestures and totality of the circumstances.

If Kent’s view troubles you, consider how persuasive the view of those who favor individual rights and freedoms might come off to the “kiss a cop” crowd.  At least Scheidegger plays the manipulation game with purpose.  We should take notes from the professor.