The Kagan Nomination Print
By William Saunders   
Monday, 31 May 2010

On June 28, it is all but certain that the Senate’s Judiciary Committee will begin hearings on the nomination of Elena Kagan to the U.S. Supreme Court. Her supporters, including the man who nominated her, President Obama, urge her confirmation for many reasons, but primarily for her distinguished service as Dean of Harvard Law School and as the nation’s first female Solicitor General (the attorney who represents the federal government in cases before the Supreme Court).

Those, such as pro-life advocates and conservatives of various stripes, who would ordinarily be expected to oppose an Obama nominee, have been bewailing the lack of a “paper trail” for Kagan. Unlike many past and potential nominees to the Court, almost all of whom have been judges on appellate courts, Kagan is not a judge, and hence, has not issued the judicial opinions that ordinarily furnish the primary means for evaluating nominees.

Now, it is true that Kagan has a limited paper trail. But when those hints are examined, I think most Americans will agree that she should, at a bare minimum, be required to answer some hard questions at her hearing – in detail, something she herself stated in a law review article several years ago that nominees should be required to do.

Her paper trail is expected to be expanded by a magnitude of thousands quite soon, however, when the Clinton Library produces documents for the period when she served as Domestic Policy Advisor to President Bill Clinton. To any unprejudiced observer, this would indicate the need to delay the hearing until these documents – which will be hundreds of thousands of pages – can be properly reviewed by members of the Judiciary Committee. Sadly, but not surprisingly, it looks like Chairman Pat Leahy will ram the hearings ahead whether such review is completed or not.

These writings were not reviewed previously when Kagan’s nomination for Solicitor General was pending. They are – quite properly – considered relevant to her nomination to the Supreme Court, however. If confirmed, she will have a life-time appointment. She is a middle-aged woman and would very likely be one of a handful of people who decide fundamental questions of U.S. law on the Court for at least three decades.

The question for the hearings is simple: what kind of judge would she be? Catholics and other pro-life Americans must remember that it was through “an act of raw judicial power” (as Justice Byron White said) that an unlimited right to abortion was imposed upon our country in Roe v. Wade. The Supreme Court therein overstepped its boundaries and stepped into the legislative realm to “settle” a disputed social issue that is not addressed in our Constitution (try to find the word “privacy” in the Fourteenth Amendment).

The Court, or at least many of its members, continues to see itself as the institution that “settles” social disputes (witness its clear flirtation with settling the gay “marriage” question in Lawrence v. Texas). Nominees who see themselves in this role are clearly unsuited to sit on the Supreme Court. So how about Kagan?

On such issues, her views are so clear, and so wrongheaded, that she should be opposed on this ground alone. She has stated, unequivocally, her deep admiration for the judge who is considered, by his admirers, as the leading judicial activist in the world.

When presenting the Peter Gruber prize at Harvard Law School in 2006 to retired Israeli Supreme Court judge, Aharon Barak, she said that he “is my judicial hero. He is the judge who has best advanced democracy, human rights, the rule of law, and justice.” In 2006, Barak published a book detailing his judicial philosophy, The Role of a Judge in Democracy. As distinguished thinkers from Robert Bork to Richard Posner have noted, it is simply a handbook for judicial activism, in which the judge becomes a Platonic Guardian who makes all the tough decisions for society in accord with what he things are “human rights” and “justice.” This is simply “government by the judiciary,” and that is not part of our own Constitution.

There is no space here to review all Kagan’s positions, but let’s look briefly at abortion, which is undoubtedly the most important issue of justice in America today. Even her skimpy paper trail reveals:

· Kagan has financially supported an extremist pro-abortion organization, cleverly named the National Partnership for Women and Families, which is intertwined with Emily’s List and NARAL, and which lists “abortion” as central to its mission.
· She has given lifetime service to pro-abortion politicians and judges; pro-abortion politicians like Senator Barbara Boxer are citing this as evidence of her “reliability” for protecting Roe v. Wade.
· She is hostile towards commonsense regulation of abortion (she opposed segregation of Title X funding as “subsidizing pro-life speech,” which she called unconstitutional viewpoint discrimination).
· She opposed federal funding for programs that help pregnant women simply because the recipients of federal funds were religious organizations.

Even a cursory review demonstrates that she is pro-abortion, with little sympathy or understanding of the pro-life perspective. She should be extensively questioned by members of the Judiciary Committee who care about these issues. It is self-defeating to accept her “inevitable” confirmation (as many pundits have it). Rather, now is the time to insist that no more pro-abortion judicial activists be confirmed. If nominees like this are routinely approved, we will never bring the Supreme Court back to its proper Constitutional role.


William Saunders is Senior Vice President of Legal Affairs at Americans United for Life. A graduate of the Harvard Law School, he writes frequently on a wide variety of legal and policy issues.

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