Missing: Kagan's Record of Impartiality

Elena Kagan’s history paints a picture of a smart political advocate, loyal to liberal ideology. What you do not see in President Obama’s pick for the Supreme Court is someone whose respect for the law and the Constitution exceeds her political opinions.

She looks primarily like a Democrat insider who will rubber stamp the President’s agenda.

Even the New York Times noticed that a driving factor in Obama’s decision was that the nominee be an extension of his political agenda, reporting:

“As he presses an ambitious agenda expanding the reach of government, Mr. Obama has come to worry that a conservative Supreme Court could become an obstacle down the road, aides said. It is conceivable that the Roberts court could eventually hear challenges to aspects of Mr. Obama’s healthcare program or to other policies like restrictions on carbon emissions and counterterrorism practices.”

Absent from her resume is any judicial experience. So, it’s fair to ask, what outstanding feature makes this person qualified to sit on the highest court in the land? Has she exhibited the key qualification for any judge: impartiality and fidelity to the Constitution?

Kagan’s actions give us a window into her judicial philosophy—and it is not encouraging. As a law clerk for Justice Thurgood Marshall, Kagan wrote a brief in Bowen v. Kendrick where the Supreme Court reversed a lower court’s ruling that federal grants to religious organizations under the Adolescent Family Life Act violated the 1st Amendment’s Establishment Clause. Kagan essentially argued that religious organizations should be discriminated against because of their beliefs.

Kagan later recanted, stating that her analysis was “deeply mistaken” and “the dumbest thing [she] ever heard.” And yet the ACLU credited her with shaping the Clinton Administration’s policy on hate crimes, a tool of homosexual activists intended to punish religious beliefs regarding homosexuality. Her disregard for a foundation liberty is a troubling characteristic for a justice to the Supreme Court.


Kagan has been extraordinarily careful to hide her opinions. But she couldn’t resist two issues: abortion and homosexuality.

Federal regulations against giving tax dollars to counsel women to get abortions have been upheld by the Supreme Court. Kagan—who reportedly has close ties to abortion advocacy groups—has publicly criticized these life-saving measures.

As solicitor general, despite promises to senators and her professional obligation, Kagan failed to vigorously defend federal laws involving challenges to the Defense of Marriage Act and the underlying law to "don’t ask, don’t tell" which bars gays from the military.

The military’s reasoned policy that homosexuality is incompatible with military service was signed into law by her former boss Bill Clinton. Her efforts to ban the military from Harvard’s law school campus exposed her true beliefs. Liberal commentator Peter Beinart noted:

“The United States military is not Procter and Gamble. It is not just another employer. It is the institution whose members risk their lives to protect the country. You can disagree with the policies of the American military; you can even hate them, but you can’t alienate yourself from the institution without in a certain sense alienating yourself from the country. Barring the military from campus is a bit like barring the President or even the flag. It’s more than a statement of criticism; it’s a statement of national estrangement.”

Kagan joined an amicus brief challenging the federal law. This “brilliant” legal expert’s opinion was unanimously rejected by the Supreme Court.

This venture outside her self-imposed cocoon of silence gives a glimpse into how Kagan’s ideology shapes her legal theory. The Supreme Court ruled that Kagan’s interpretation would render the law “largely meaningless.” Re-interpreting a law she didn’t like, passed by elected representatives and signed by the President, to make it “largely meaningless” is a fine example of judicial activism.

Especially troubling are her views on national security. She opposed legislation designed to prevent terrorists convicted in military tribunals from using civilian courts to challenge their convictions. In a letter regarding the Graham Amendment to the Department of Defense Authorization bill, she compared Congress’ efforts to the “fundamentally lawless” actions of a “dictatorship.”

In her confirmation hearings for solicitor general, Kagan spoke positively of utilizing international law to influence domestic cases. This dangerous philosophy challenges the very basis of America. We are a representative democracy—not a colony. The Constitution is the supreme law of the land. “International norms” from foreign rulers do not dictate what “we the people” determine shall be our laws. We fought—and won—a war over that.

These major flaws in Elena Kagan’s record cannot be explained away. We must not lose sight that this is a lifetime appointment to the highest court in the country. Her passion is for her ideology, not the Constitution.

She comes into her nomination at a great disadvantage, having being picked by President Obama. He wants a nominee who shows “empathy” toward certain groups—not justice for all. A justice who will not overturn his liberal legislative achievements.

No question she will deliver.