Elena Kagan should not be on the Supreme Court.  Her track record shows she does not value individual freedom.  Any Supreme Court justice must hold freedom dear.  That shortcoming disqualifies her for the court.

When I was a law student at Brigham Young University, we had a career services office.  The career services office welcomed all employers.  We had oil companies, environmental groups, prosecutors, criminal defenders, insurance defense firms and trial attorneys.  The school did not act paternalistically by banning some employers and allowing others.  Instead, the school treated the law students like adults and let us decide who we wanted to work for.

While at Harvard, Kagan banned the U.S. military from recruiting on campus.  President Obama has defended the action by claiming that she only banned the military from recruiting at the law school.  I say, so what.  It doesn’t matter whether you agree with the Iraq war or the Bush war on terror.   In my mind, she showed contempt to the law students at Harvard by taking away their choice to join the military.  Her actions show a dangerous elitist trait in which she believes that she has the right to impose her beliefs on other adults.

Her actions at Harvard are not the only troubling  about her.  She also wrote a law review article in which she urged the Supreme Court to change current law to allow the government to ban hate speech.  Some governments have already done that.  For example, in Germany it is illegal to display a swastika.  The U.S. Supreme Court has refused to ban hate speech.  It still holds that all political speech is protected.

The trouble with changing the law and allowing the government to ban hate speech is where do you draw the line.  Some people with political leanings similar to Kagan view a lot of speech as hate speech.  You don’t have to stretch very far to find a situation where Kagan might believe that speaking against gay marriage is hate speech.  What about the tea party movement.  Some have characterized that movement as hate speech.

A Supreme Court justice is given a life time appointment with free reign to shape U.S. law.  We should not be appointing justices who do not value freedom over pushing a certain ideology.  Kagan’s history shows she lacks this essential attribute.

Neldon Johnson and Ina Johnson were divorced in June 2001.  As part of the court proceedings, Neldon Johnson agreed to pay Ina $2,800,000 at the rate of $8,333.33 per month.  Only problem was, they were never married.

In court, Neldon told the Judge they were married in May 1964.  He later had heartburn about that.  He went back to court and told the judge that he was never married to Ina and didn’t want to pay her the $2,800,000.  He refused to make the $8,333.33 monthly payments.

Neldon and Ina have been involved in litigation ever since.  They both now agree that they were never married.  Apparently, they got in their car to go get married but had car problems.  When they returned a couple days later, they told their friends and family that they were married while out of town.  They kept that lie going until after their divorce in 2001.  Now they both agree that they were never married.

The Utah Supreme Court recently said they don’t care.  When Neldon Johnson went into court in 2001 and told the judge he was married, wanted a divorce and was willing to pay his wife a large amount of money as a property settlement, he locked himself in.

As it turns out, he wasn’t locked into the “marriage” but he is locked into the monthly payments.  Here is a link to the actual court decision.

John Flynn passed away on April 11, 2010.  John was a professor at the University of Utah law school for 42 years.  His students loved him.

Richard Burke, one of his law students, had this to say about Professor Flynn:

“I dreamed of being a lawyer since I was 8 years old.  But when I finally got to law school, I began to have second thoughts about my life’s dream.  I was shocked to discover that many students were there as a means to an end, with little or no regard for “justice” or the American legal system – the very reason I was there.  To them, the law was just a meal ticket, and that disgusted me.  As if that were not bad enough, my professors’ (apparent) collective indifference to this state of affairs (or so it seemed at the time) was doubly depressing.  Then someone persuaded me to sign up for Jurisprudence, with Professor Flynn.

It was a revelation, because he obviously cared about why he was there and why we were there.  He looked us in the eye, challenged us, and cared about the quality of our responses, and how we came to them; he was never satisfied with merely giving the correct answer.  Professor Flynn also shared his thoughts about the pending rate cases with us students, and asked us our opinions, brainstorming with us as if we were equals.  It was astounding: Here was a man who could have made boatloads of money as a corporate lawyer, but he chose to devote his many talents to the thankless task of educating and inspiring fresh crops of new lawyers.   He cared about justice, and showed his devotion not only by championing the public good in rate cases, but also by his insistence that his students were prepared to think and reason as lawyers in our justice system.  He inspired me, helped me to remember why I chose this path, and through his example of quiet confidence, let me know it was okay to think differently than my classmates.  I took every class he offered.

John Flynn had a superb legal mind, but I will remember him mostly for his humanity and grace.”

Even those who never studied under Professor Flynn have reason to be grateful.  In the early 1990′s Professor Flynn took on US West and the Utah Public Service Commission.  As the telephone utility for Utah, US West had a monopoly and could charge exorbitant rates to Utah consumers.  The legislature formed the Public Service Commission to “keep an eye” on US West.  The Public Service Commission had the legal authority to regulate the rates that US West could charge.

Professor Flynn, as a private attorney, took on US West and the Public Service Commission.  He contended that they colluded to charge too much money.  The case was hard fought, going the Utah Supreme Court twice.  Ultimately, the courts sided with Professor Flynn.  The Utah Supreme said, “the history of USWC’s unprecedented overearnings for a number of years indicates an extraordinary abdication by the Commission of its statutory duties . . . . Notwithstanding that history, the Commission was apparently content to continue allowing exorbitant earnings . . . . The record in this case and the history of prior proceedings give rise to grave concerns about the integrity of the Commission’s regulation of USWC’s rates and practices and why the regulatory process has been abused.”

In the end, Professor Flynn succeded in forcing USWest to refund almost $4,000,000 to the people of the State of Utah.

One of the more controversial aspects of the decision was the award of attorney fees.  Professor Flynn argued that the ATtorney General should have taken on this case.  Since the Attorney General instead chose to fight the case, Professor Flynn asked that USWest pay his attorneys fees.  The court agreed, reasoning that Professor Flynn had brought almost $4,000,000 in benefits to the State of Utah and an award of attorneys fees would encourage these types of lawsuits in the future.  The court limited attorney fees in these cases to a reasonable amount and only in cases where a significant societal interest was vindicated.  After all, who wouldn’t want someone to take on a utility that overcharged consumers almost $4,00,000 with the implict consent of a corrupt Public Service Commission.

To answer that question, jump forward to 2009.  Stephen H. Urquhart is a member of the Utah legislature.  He also represents large corporations. His clients oppose the award of attorneys fees in these cases because it gives incentives to people to bring lawsuits to force large corporations to obey the law.  He sponsored a senate bill that would do away with attorneys fees in these cases.  It passed and is now Utah law.

We all have Professor Flynn to thank for forcing USWest not to overcharge us.  We all have Stephen Urquhart and the Utah legislature to thank for discouraging others from following in Professor Flynn’s footsteps.