THE CASE AGAINST CONFIRMING ELENA KAGAN
Newly released e-mails from Elena Kagan’s time as an aide to President Clinton portray the Supreme Court nominee as a driven and highly opinionated person with a flair for political tactics and little tolerance for high-flying rhetoric.
Solicitor General Elena Kagan is too political, too leftist, too inexperienced and too disrespectful towards existing law to be confirmed for the U.S. Supreme Court. As Ms. Kagan’s nomination hearings begin on Monday, what we now know about her should disturb fair-minded Americans, and should embolden moderate senators of both parties to avoid rubber-stamping her for a lifetime appointment. The pressure should be most intense not on Republicans, but on Democrats who claim moderation and yet try to explain away Ms. Kagan’s history of leftist proselytizing.
No amount of personal charm on Ms. Kagan’s part should obscure her actual record. Here’s what we know about this former dean of Harvard Law School:
We know she is remarkably lacking in courtroom experience. Until Ms. Kagan became solicitor general, she not only had never been a judge, but she also had not even argued a single appeals case in her entire career. Her few arguments as solicitor general have been undistinguished. In one, the justices had to remind her that she was to answer their questions, not ask them questions of her own.
We know she deliberately ignored the law while at Harvard, and unfairly besmirched our military in time of war. The facts are simple. A law known as the Solomon Amendment made it illegal to keep military recruiters off of college campuses. An appeals court ruled that the law should be overturned but immediately made its own ruling inapplicable until it could be reviewed by the Supreme Court. Then-Dean Kagan barred the recruiters from campus anyway, thus flouting the law. She called the military’s “Don’t Ask, Don’t Tell” rule on homosexual practices “a moral injustice of the first order,” even though she herself had served in the Clinton White House that developed the “Don’t Ask, Don’t Tell” rule in the first place. Then, when she supported a challenge to the Solomon Amendment, the Supreme Court ruled against her position 8-0 – an overwhelming rejection of her anti-military stance.
Somebody who openly flouts the law should not be one of the law’s ultimate arbiters.
We know she cut corners in order to preserve partial-birth abortions. Vast majorities of the American public oppose partial-birth abortion, which involves crushing the skull of a partially born baby and which the late Sen. Daniel Patrick Moynihan characterized as, for all intents and purposes, open “infanticide.” Yet when serving as a legal adviser to former President Bill Clinton, Ms. Kagan deliberately withheld from the president a finding by the American College of Obstetricians and Gynecologists that partial-birth abortion is virtually never “the least risky, let alone the ‘necessary,’ approach.” As accurately summarized by the National Right to Life Committee, the result was this: “Ms. Kagan played a key role in keeping the brutal partial-birth abortion method legal for an additional decade.”
We know she is willing to undercut First Amendment free speech for political purposes. Ms. Kagan argued before the Supreme Court that the law should be read to allow the government to prohibit the publication of political pamphlets. In a nation stirred to its own founding by political pamphlets such as “Common Sense” and “The Federalist Papers,” this is an extremely disturbing position. Ms. Kagan also has written of the benefits of “redistribution of expression,” and has written that speech rights are to be “dol[ed] out” as a “favor” from government rather than being pre-existing rights that government cannot take away. She has argued that government would be justified in “disfavoring [an] idea [to] ‘unskew,’ rather than skew, public discourse.”
We know Ms. Kagan is hostile to gun rights. Curt Levey of the conservative Committee for Justice has closely and fully analyzed the record. His conclusion is worth quoting in full: “When it comes to firearms, Elena Kagan’s liberal bias stands out again and again throughout the documents. The Second Amendment consistently plays second fiddle to gun control in Kagan’s analysis across issues such as gun-show regulations, trigger-lock mandates, the Brady Bill, municipal lawsuits against gun manufacturers, the congressional ban on assault weapons, an executive order banning semiautomatic weapons, use of executive agencies to push gun safety, use of state and local police to conduct background checks, and even the fundamental question of whether individuals have any Second Amendment rights.”
We know she believes foreign law is highly relevant to U.S. law. In a New Hampshire speech on Oct. 6, 2008, then-Dean Kagan referred to “a transnational perspective” as being “foundational” as “part of the core of legal thought and activity in this new century.” To be clear, she said, “I think the solicitor general’s office should offer reasonable foreign law arguments.” While she was dean, Harvard Law added “International- Comparative Law” as a course requirement for graduation, but the school dropped the requirement for constitutional law.
We know she believes judges should automatically favor certain classes of people and impose their own values to reach desired outcomes. In short, judges should be super-legislators. We know she believes this because she has written as much. She wrote in 1993 that it is a “thing of glory” for the Supreme Court to see its primary mission as “show[ing] a special solicitude for the despised and disadvantaged.” She has acclaimed as her greatest “judicial hero” the radical Israeli judge Aharon Barak, who openly bragged that his “judicial philosophy is enshrined in the recognition that his role is to create rights.” Not enforce rights recognized by the people, but create those rights himself. That’s dangerous, yet it echoes what Ms. Kagan herself wrote in her Oxford University thesis in 1983, namely that “as participants in public life, judges will have opinions, prejudices, values. Perhaps most important, judges will have goals. … And because this is so, judges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends. Such activity is not necessarily wrong or invalid.”
And we know lots of other things about Ms. Kagan. She believes states should be forced to recognize purported marriages performed in other states (presumably such as homosexual “marriage”) even if their own policies forbid it. She used her job as legal analyst to make political judgments about how various legal stances would benefit Democrats over Republicans. She supported a policy to allow human embryos to be cloned and killed. She said she “loved” the vicious character assault on Judge Robert Bork when he was nominated for the Supreme Court in 1987. And she once wrote that she hoped for “a new, revitalized, perhaps more leftist left.”
If those are Elena Kagan’s goals, let her run for elective office. But keep her far away from the nation’s highest court, where justices are supposed to serve the law, not create it.
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