Liberty Alerts, JBS.org Freedom Campaign
With no judicial opinions, zero time on any bench, and very little published material, Supreme Court Justice nominee Elena Kagan is lacking a substantive public record. Dean of Harvard’s law school, she also spent some time inside the Clinton Administration as a policy adviser, plus one year as the Solicitor General in the Obama Administration — not giving enough clues, regardless of the subtle rhetoric, hers or the news media’s, to indicate her personal views no matter how carefully she tiptoes through the media blitz and confirmation questioning.
While at Harvard, Kagan replaced the study of Constitutional law with that of international law. In its place are three courses on international public, economic and comparative law, that are described as introducing “students to one or more legal systems outside our own, to the borrowing and transmission of legal ideas across borders and to a variety of approaches to substantive and procedural law that are rooted in distinct cultures and traditions.”
On the First Amendment, Kagan’s views are clear. Kagan has demonstrated that she has no trouble suppressing speech if “it is offensive to society or to the government.” In United States v. Stevens, Kagan, as Solicitor General, argued that some speech may not be entitled to First Amendment protection: “Whether a given category of speech enjoys first amendment protection depends upon a categorical balancing of the value of the speech against its societal costs,” she said.
Kagan also admitted in a 1987 memo while clerking for Justice Marshall that she was “not sympathetic” toward a gun-rights claim.
Kagan penned a 2001 piece, “Presidential Administration,” that appeared in the Harvard Law Review in which Kagan identifies and labels the absorption or transfer of power into the White House various actions formerly attributed to administrative agencies; she has no problem with centralizing more power in the executive branch. Confrere Marc Tushnet commented that for Kagan, “the proliferation of White House czars is consistent with Kagan’s ideas of thinking about presidential administration.”
Kagan also hired now regulatory czar in the Obama Administration Cass Sunstein at Harvard, calling Sunstein “…the preeminent legal scholar of our time — the most wide-ranging, the most prolific, the most cited, and the most influential.”
When it comes to understanding or interpreting the Constitution in general, she is said to be weak. Kagan had written a tribute to the late Justice Thurgood Marshall in the Texas Law Review that exposes some of her beliefs. Attributing many ideas to Marshall, Kagan nonetheless wrote, and one may believe she accepted the notions from her beloved mentor that “the Constitution, as originally drafted and conceived, was ‘defective.’” She added then her own endorsement of Marshall’s ideas with, “The Constitution today . . . contains a great deal to be proud of. ‘(B)ut the credit does not belong to the Framers. It belongs to those who refused to acquiesce in outdated notions of ‘liberty,’ ‘justice,’ and ‘equality. Our modern Constitution is (Marshall’s).”
Kagan’s path leading to the Supreme Court comes from association with a tightly-knit and intertwined group of liberals, leftists and global elitists who continue to have their careers advanced in order to support and promote an agenda that coincides with the Obama Administrations’ and the plans of those who would completely destroy the checks and balances of the three branches of government laid out by our Founding Fathers. Her intense executive branch experience will most likely influence her decisions and we could see her siding with the federal government’s positions on cases that come before her — cases involving challenges to government health care, state sovereignty issues, the right to keep and bear arms, presidential power, torture, warrantless wiretapping, indefinite detention, and abortion. Kagan’s appointment should be seen as the political maneuver that it is.
Opposition to her confirmation must snowball, and one tactic to use to accomplish this is to help spread the word on Kagan’s real stripes. Then, remind the Senators (click here and then scroll down for a prewritten message) of the upcoming November elections and their responsibility to the electorate and defense of Constitutional principles they are sworn to uphold.
Used with permission.