Dispatches from the Creation Wars

Obviously, she was not in a position of advising on the constitutional validity of that law but was rather in a position of advising on the policy questions. And just as obviously, she believed that her job was primarily to advise Clinton on what would be politically most useful to him, not what is right or wrong. But that's exactly what bothers me. Where is the concern for basic principles of fairness or justice?

Conason is right when he writes:

For decades, the senseless disparity in sentencing of crimes involving plain old cocaine and crack cocaine -- with the latter punished up to 100 times as harshly -- has efficiently swelled the disproportionate number of minority prison inmates. In practice this means that major drug dealers selling white powder often get off easier than the street-level crack dealers who are their customers.

Eliminating (or even just reducing) that difference is a critical aspect of drug law reform, as well as a simple gesture toward racial justice. It is a progressive goal that dates back to the Clinton presidency.

If anything, he understates just how serious the problem was. It is one of the primary policies that pushes far more minorities into prison than whites, destroying families and whole communities in the process. It is manifestly unjust. But none of that seems to have mattered to Kagan at all.

Does this mean she'd take the same position on the Supreme Court and uphold such disparities? Of course not. But it certainly does make me question how important concepts of justice and fairness are to her. Her behavior here is symptomatic of one of the biggest problems I have with electoral politics, the inevitable need to elevate political strategy above principle. And Conason is spot on when he writes:

The question that someone should ask Kagan, when she appears before that same committee for confirmation hearings, is whether she feels any shame over her evident eagerness to sacrifice decency for expediency. If she and her colleagues on the Domestic Policy Council believed the disparity unjust, shouldn't she -- and the president -- have advocated change? Or would she seek justice only when victory is assured? It isn't hard to imagine the scathing answer of the late Justice Thurgood Marshall, for whom Kagan clerked and whom she no doubt admired.