On October 3, 2005, then-President George W. Bush selected Harriet Miers as the next Supreme Court nominee to replace retiring Justice Sandra Day O’Connor.
Then-Sen. Barack Obama spoke of the nomination the following day and stated that, “To some degree, the challenge to us is that she’s simply unknown…. Other than the fact that she’s been a great loyalist of the President and she clearly is a good corporate lawyer, we really don’t know much else about her."
With regards to Miers’ nomination, Obama approached the news with trepidation as he implied that being a good lawyer and a loyalist to a President, in and of itself, are not sufficient qualifications for a position on the highest court in the United States.
Yet how is it that Solicitor General Elena Kagan, a quality legal mind, an Obama Administration appointee and long-time inner-circle Chicago ally, is supposed to be different from Miers?
Miers had no judicial record. Kagan has none as well. Miers was not a sitting judge; neither is Kagan. Miers was a lawyer who had a positive professional reputation; Kagan shares this same trait. The similarities are abundant yet Obama seems happy to nominate Kagan. In contrast, he was less than enthusiastic about Miers. Why?
For Obama, Kagan is perfect. Although the White House and some pundits seek to frame her as a moderate, she is a left wing ideologue.
In 1997, while working for then President Clinton, Kagan urged Clinton to support a ban on late-term abortions. This has been used by the left to show her moderate philosophy. Her motivation was not to restrict abortion, but she sought to protect abortion rights that were being legislated against in the Republican-held Congress. She urged Clinton to support the abortion restriction in an effort to avoid an even stricter abortion law that could have been enacted by overriding a presidential veto. Her strategy and aim was abortion preservation rather than restriction.
But her leftist activism doesn’t stop with abortion. While dean of Harvard Law School, Kagan actively sought to keep the ROTC off of Harvard’s campus. Kagan took an activist role and abused her position to pursue an activist agenda that advocated allowing gays to serve openly in the military. It didn’t matter that the students she was responsible to were unable to pursue an honorable and dignified career opportunity in our armed forces. Her activist political stances were of higher priority.
What is troubling is that Kagan was on the wrong side of the law by a significant margin, as the Supreme Court unanimously ruled against her side and allowed military recruiters on campuses. Is this kind of “outside the mainstream” and activist thinking we will see by her on the Supreme Court?
Kagan has less courtroom experience than many first-year law students. Until last September when she was nominated as solicitor general by her former University of Chicago Law School faculty colleague, President Obama, she had never litigated a single case in court—something even Harriet Miers had done and something that any certified law student who has taken criminal law, criminal procedure, and evidence can do in the State of California.
What’s most troubling is that Obama expects this “foremost legal mind” to draft opinions when she has trouble even arguing basic constitutional principals in open court. The Supreme Court all but scolded her in one of their recent opinions that was decided by an 8-1 margin. In United States v. Stevens, a case Kagan argued this year in front of the Supreme Court as solicitor general, the court said that her argument—which was that free speech should be limited based on the value it has on society—was “startling and dangerous.”
The court went on to conclude that such limitations on the freedom of speech are not authorized by our Constitution just because “some speech is not worth it.” Justices Kennedy, Ginsburg, Sotomayor, and even Stevens, the justice known to be the most liberal, joined the majority. Once again Kagan was on the wrong side of the mainstream and even disputed by the liberals on the court.
Kagan is no stranger to the Washington beltway. She will be prepared with her canned and evasive answers proffered by Obama’s aides. Hopefully the Senate, when the vote casting begins, will take a hint from the high court and realize that Kagan as a justice is “startling and dangerous.” But don’t count on it. This time around, because of Obama’s desire to impose his radical agenda, Kagan will likely get a pass.