The Senate Judiciary Committee will begin its hearing today on the nomination of Elena Kagan to be the next Associate Justice of the Supreme Court of the United States. Kagan is no stranger to the confirmation process; in fact, she devoted one of her few academic writings entirely to the subject, writing:

The Senate’s consideration of a nominee, and particularly the Senate’s confirmation hearings, ought to focus on substantive issues; the Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct.

Kagan’s law review article specifically criticized recent confirmation hearings as “a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis.” Instead, Kagan advocated that senators insist “on seeing how theory works in practice by evoking a nominee’s comments on particular issues – involving privacy rights, free speech, race and gender discrimination, and so forth – that the Court regularly faces.” Kagan even suggested that nominees with thin records (and Kagan’s record can definitely be considered “thin,” since she has no judicial experience, few academic writings, and virtually no litigation experience prior to her current post as Solicitor General), should face a heavier burden when answering senators’ questions. So what “substantive issues” should senators press Kagan on to see how her “theory works in practice”?

The First Amendment: As Solicitor General, Kagan asserted before the Supreme Court that government could ban political pamphlets. The core of the First Amendment is the protection of political speech. So not only does such a position therefore violate common sense, but its logic could be used to ban Thomas Paine’s Common Sense or other landmark political treatises, particularly if their authors were so foolish as to publish them through a non-profit corporation. Does Kagan believe that the First Amendment permits the government to ban pamphlets and books?

The Second Amendment: As a law clerk, Elena Kagan recommended that the Supreme Court not even hear a claim that the District of Columbia’s complete ban on handguns violates the Second Amendment — a claim that recently succeeded at the Court. The sole reasoning that she provided for denying the claim: “I’m not sympathetic.” Kagan was also intimately involved in gun-control policies in the Clinton White House, working to reclassify certain hunting rifles as assault weapons and to ban their importation. In Kagan’s notes obtained from the Clinton Library, she even lumped the National Rifle Association together with the KKK as “bad guy org[anization]s.” Does Kagan stand by her recommendation to reject access to the Supreme Court to someone denied his or her Second Amendment rights by a complete ban on handguns? Considering that she has argued that the government can ban political pamphlets, does she also believe that the Constitution permits the government to ban all guns, as well?

Social Issues vs. National Security: As dean of Harvard Law School, Kagan restricted military recruiters’ access to campus. Kagan’s actions, which were based upon a court of appeals decision that did not even apply to Harvard, violated the Solomon Amendment. It was only after the Department of Defense threatened to cut off Harvard’s funding that Kagan granted military recruiters customary access to campus. What legal authority did Kagan have to disregard the Solomon Amendment and restrict the access of military recruiters to campus? Does Kagan think it was appropriate to limit the ability of the military to recruit on campus at a time when the United States is fighting two wars?

Foreign Law vs. the U.S. Constitution: In a letter to Senator Arlen Specter (D–PA) during her Solicitor General confirmation hearings, Kagan wrote, “There are some circumstances in which it may be proper for judges to consider foreign law sources in ruling on constitutional questions,” such as the Eighth Amendment. This position seems consistent with Kagan’s approach as dean of Harvard Law School, where she led the effort to change the first-year curricula to mandate the study of international law while maintaining constitutional law as an elective course. This practice of looking at foreign law to change U.S. law raises grave questions about U.S. sovereignty and is frequently used selectively by justices who cite to practices that favor their desired outcomes. As a justice, would Kagan cite to foreign law in interpreting the U.S. Constitution?

When President Barack Obama outlined his criteria for appointing a replacement for retiring-Justice David Souter, he said he would seek: “someone who understands justice and isn’t about some abstract legal theory or footnote in a case book, it is also about how our laws affect the daily realities of people’s lives … I view that quality of empathy of understanding and identifying what people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.” Kagan has similarly written that it is the Supreme Court’s mission to “show a special solicitude for the despised and the disadvantaged.” At a time when this White House has shown an utter contempt for the rule of law in favor of their own political allies (e.g. Chrysler bailout, oil drilling moratorium, BP shakedown, etc.) it is now more important than ever that senators ensure Kagan is capable of putting aside her personal preferences, applying the law as it is written, and dispensing justice without regard to the parties before her.

Side Note: Robert Alt, Senior Legal Fellow and Deputy Director, Center for Legal and Judicial Studies at The Heritage Foundation, will testify before the Senate Judiciary Committee this week regarding Kagan’s nomination hearing. For more information, visit OrderInTheCourt.org.

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