As the confirmation hearings of Elena Kagan got underway at 12:30, the ranking member of the Senate Judiciary Committee, Jeff Sessions (R-AL), lost no time getting to the heart of the concerns that are raised by Elena Kagan’s nomination by President Obama to the Supreme Court:
Ms. Kagan has less real legal experience of any nominee in at least fifty years. It’s not just that she has never been a judge. She has barely practiced law, and not with the intensity and duration from which real understanding occurs. Ms. Kagan has never tried a case before a jury. She argued her first appellate case just nine months ago. While academia certainly has value, there is no substitute for being in the harness of the law, handling real cases over a period of years…
What Ms. Kagan’s public record does reveal, however, is a more extensive background in policy and politics, mixed with law. Ms. Kagan’s college thesis on socialism in New York seems to bemoan socialism’s demise there. In her master’s thesis, she affirmed the activist tendencies of the Earl Warren Court, but complained that they could have done a better job of justifying their activism…
During her White House years, the nominee was the central figure in the Clinton-Gore effort to restrict gun rights—and, as the dramatic 5-4 decision today in McDonald shows, the personal right of every American to own a gun hangs by a single vote…
Ms. Kagan was also the point person for the Clinton Administration’s efforts to block Congressional restrictions on partial-birth abortions. Indeed, documents show she was perhaps the key person who convinced President Clinton to change his mind, from supporting to opposing legislation that would have banned that horrible procedure…
During her time as Dean of Harvard, Ms. Kagan reversed Harvard’s existing policy and kicked the military out of the recruiting office in violation of federal law. Her actions punished the military and demeaned our soldiers as they were courageously fighting two wars overseas…
In her first appellate argument, Ms. Kagan told the Court that the speech and press guarantees in the First Amendment would allow the federal government to ban the publication of pamphlets discussing political issues before an election. I would remind my colleagues that the American Revolution was—in no small part—spurred on by just such a political pamphlet, Thomas Paine’s “Common Sense.” To suggest that the government now has the power to suppress that kind of speech is breathtaking.
Also as Solicitor General, Ms. Kagan approved the filing of a brief before the Supreme Court asking that it strike down provisions of the Legal Arizona Worker’s Act, which suspends or revokes business licenses of corporations which knowingly hiring illegal immigrants, even though Federal law expressly prohibits such hiring. She did this even after the liberal 9th Circuit had upheld the law…
She clerked for Judge Mikva and Justice Marshall, each a well-known liberal activist judge. And she has called Israeli Judge Aharon Barak—who has been described as the most activist judge in the world—her hero. These judges don’t deny activism; they advocate it. And they openly oppose the idea of a judge as a neutral umpire…
In the wake of one of the largest expansions of government power in history, many Americans are worried about Washington’s disregard for limits on its power…Even today, President Obama advocates a judicial philosophy that calls on judges to base their decisions on empathy and their “broader vision of what America should be.” He suggests that his nominee shares that view…Americans want a judge that will be a check on government overreach, not a rubber stamp.
Today’s decision on the Second Amendment by the Supreme Court in McDonald v. Chicago, in which Justice Sotomayor joined with the minority in trying to deny the Second Amendment rights of the American people in direct contradiction to her sworn testimony at her confirmation hearing, shows how important the Kagan hearing is. At her own confirmation hearing, Sotomayor disingenuously claimed that she understood “how important the right to bear arms is to many, many Americans.” Senator Leahy, the Chairman of the Senate Judiciary, then said that he could “not see how any fair observer could regard her testimony as hostile to the Second Amendment personal right to bear arms, a right she has embraced and recognizes.” Unfortunately, Sotomayor appears to have forgotten how important the right is that she supposedly “embraced and recognizes” in the short time she has been on the Court and decided it was not quite fundamental enough to be a vital component of American liberty..
But this is just one example of why intensely questioning Kagan on all of these issues is vitally important to preserving this nation as a republic and protecting the liberties of its people. Confirming an activist, liberal judge who believes that the Supreme Court should act as super-legislature that imposes its view of social policy on the country would be an unmitigated disaster that would further imperil the Constitution and the rule of law.
