Judiciary

Kagan: Bad on Abortion, Gun Rights and the Commerce Clause

Another round of documents from Elena Kagan’s time in the Clinton White House was released Friday afternoon, giving further evidence of her decidedly liberal legal and policy positions.

The release comes as a Rasmussen poll shows that support for Kagan’s nomination to the Supreme Court has fallen to 33% while opposition to her nomination has risen eight points to 41%. By way of comparison, 28% of the public opposed Harriet Miers’ nomination at the time she withdrew under fire from the process. The public remains highly engaged in the nomination process, with 73% reporting that they are following the news about Kagan.
Here are some of the hot topics Kagan-watchers will be talking about based on these newly released documents:

Abortion: Kagan believes the Constitution contains a nearly unfettered right to partial-birth abortion, an extreme position the Supreme Court ultimately rejected. She opposed a ban on partial-birth abortion, even one with an exception for the mother’s health, because she believed it took away one “safe” abortion technique from abortion providers and thus burdened the right of women to abort their pre-viable children for literally any reason they pleased. The Supreme Court, by contrast, upheld a partial birth abortion ban even without a health exception and cited the state’s substantial interest in “promoting respect for human life at all stages in the pregnancy” by not allowing “a doctor to pierce the skull and vacuum the fast-developing brain of [a mother’s] unborn child, a child assuming the human form.”

Gun Rights
: Elena Kagan is revealed as a knee-jerk opponent of the National Rifle Association (NRA). After significant public sentiment turned against the Bureau of Alcohol, Tobacco, and Firearms (ATF) following the Waco siege and high-profile incidents of racism by ATF, Kagan made recommendations regarding how to deal with members of Congress calling for the dismantling of the bureau. She noted that supporting ATF would “not necessarily best serve the interests of gun law enforcement” because it was not aggressive in its “probes of licensed gun dealers.” But Kagan was willing to tolerate these perceived impediments to gun control out of spite for the NRA “given that the NRA is the ATF’s principal enemy.”

Commerce Clause:
Kagan clearly opposes the current trend of Commerce Clause interpretation that places constitutional limits on Congress’ power to legislate anywhere and on anything. The latest documents show that she rejected both Seminole Tribe v. Florida and United States v. Lopez and documents disclosed last week revealed that she also disagreed with United States v. Morrison, a landmark decision underlining the importance of limited government.


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