Five Red Flags about Elena Kagan

1. Her Judicial Hero Is an Judicial Activist — Elena Kagan in 2006 declared that Israeli Judge Aahron Barak was her “judicial hero.” “He is the judge who has best advanced democracy, human rights, the rule of law, and justice,” Kagan said. Yet Barak’s record is peppered with beliefs that most Americans would find questionable — like making judgments about  the deployment of troops in wartime. Americans United for Life lays out how several of Barak’s decisions have impacted Isreal’s military strategy:

“His court has countermanded military orders, decided whether to release terrorists within the framework of a political ‘package deal,’ and has directed the government as to where it can put up a security fence to keep suicide bombers from entering Israel from the West Bank."

Dr. Charmaine Yoest, president of Americans United for Life, lists several more of Barak’s objectionable positions here.   

Judge Robert Bork said Kagan’s love of Barak disqualified her from sitting on the Supreme Court.  
2. Military Recruiting on Harvard campuses…Or Lack Thereof — Kagan decided to kick the military — a group that’s prepared to offer their lives so she can live in peace — out of Harvard’s recruiting office because she doesn’t agree with its Don’t Ask, Don’t Tell policy. She only allowed the military back on campus when Harvard stood to lose its federal funding because of a law (the Solomon Amendment) which says federal funds can be withheld if the military isn’t allowed to recruit on campus.

It gets worse: In a new report, the Judicial Crisis Network points out that Kagan kicked the military recruiters off campus based on a Third Circuit Court ruling that deemed the Solomon Amendment unconstitutional — although Harvard isn’t in the Third Circuit and the Third Circuit itself “ blocked its own ruling from taking effect while the Supreme Court reviewed it.”

When the Solomon Amendment came before the Supreme Court, Kagan signed her name to a brief asking that it be overturned. The Supreme Court ruled unanimously against her.
3.  She’s “Not Sympathetic” to At Least One of Your Constitutional Rights. Kagan famously said in a memo while clerking for Justice Thurgood Marshall, “I’m not sympathetic,” when a citizen asserted that the D.C. restrictions against guns and ammunition violated his right to keep and bear arms. It’s also unclear what was meant during a correspondence between Kagan and a Clinton White House aide where she apparently refers to the NRA and the KKK as “bad guy organizations.”

4. Does She Prefer the Law or Politics? As a clerk for Justice Thurgood Marshall, Kagan argued that the court refuse a case not based on legal principles, but on which way she thought the court might rule.  This particular case dealt with taxpayer-funded abortions for inmates, and Kagan proposed that the court not accept the case because it was “likely to become the vehicle that this court uses to create some very bad law on abortion and/or prisoners’ rights.”

5. She’s Inexperienced. Kagan may have had a brilliant career — the crown jewels being her work in the White House and serving as dean of Harvard Law School — but she never argued a case before a court until she was named solicitor general. She would be the only currently sitting Supreme Court justice without previous experience as a judge. The last Supreme Court justice to not serve as a judge — William Rehnquist — had 15 years of private practice to his credit.  Kagan has spent 14 years in academic, two years in private practice, and seven years in government. You can see the complete breakdown of each current Supreme Court justice’s experience here.