The Senate should reject the nomination of Solicitor General Elena Kagan to the Supreme Court. With no judicial experience of any kind, little experience as an attorney, and a scanty record of academic publication, Kagan is the least qualified nominee to the high court in generations. Senators must insist that President Obama do better.
Kagan came to the Obama Administration directly from her position as dean of Harvard Law School. Although it sounds impressive, a law school deanship is a combination administrative and political position. Holding it does not in any obvious way qualify one for the Supreme Court.
Nor does putting in substantial time in academia without publishing much of anything. Law professors’ chief tasks are teaching and writing. Kagan has done less of the former than she would have done if she had not followed the administrative/political path of a dean. She has also done precious little of the latter. Although Obama in nominating her called Kagan “an acclaimed legal scholar,” it is unclear precisely what he means by that.
Much of Kagan’s time has been spent in political activity, such as serving as a junior domestic policy advisor to President Clinton. In that post, Kagan is known to have had her eye out for policies that would favor the Democratic Party.
It is unreasonable to infer that since she was a partisan operative once, she would be a partisan judge. Judging is a different kind of enterprise from advising a President. At least, to some people it is. But do we have any evidence that Elena Kagan sees any such distinction?
Alas, we do not. Kagan has never been a judge. Therefore, rather than hope that she would behave in a judicial, not legislative, fashion on the Supreme Court – that is, that she would favor the law, not the Democratic Party, if faced with that choice – we must assume the worst. As David Hume said, men will not always do wrong, but in structuring a government, it is best to assume that they will do ill if they can.
We should assume that Kagan will be a political, not a legal, judge: that she will be directed by her party’s and her class’s interests and desires rather than by the law. We have evidence that leads us toward such a conclusion.
First, she clerked for Judge Abner Mikva, noted judicial legislator. The two of them also worked arm-in-arm as advocates of what Democrats call “healthcare reform,” which is to say further nationalization of the delivery of American medical services. Senators considering whether to vote for this nomination’s confirmation should ask themselves whether President Obama did not likely satisfy himself that she would vote to uphold Obamacare in the process of selecting her for the Supreme Court.
Secondly, as solicitor general, Kagan argued the Obama Administration’s case before the Supreme Court in the Citizens United case of 2010. In fact, it was the very first case she argued in this, the highest position she has ever held. Kagan’s argument was that Congress should be allowed to regulate Citizens United’s political expression under the McCain-Feingold Act. The Supreme Court said no.
Writing for the majority, Justice Anthony Kennedy — not exactly a paragon of originalist virtue — said, “When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The 1st Amendment confirms the freedom to think for ourselves.”
President Obama responded by calling out the justices in his State of the Union address. Revivification of the McCain-Feingold regime would be one of his aims. How better to achieve that goal than by putting people such as Kagan on the Supreme Court?
This is more than a rhetorical issue. In the oral argument before the court, the government’s (that is, Kagan’s) position was that under McCain-Feingold, books could be banned if they contained express advocacy and a corporation were involved in their publication. That’s right: if Kagan had had her way — if she has her way in the future — McCain-Feingold will empower government to ban political books.
Not to worry: aspects of 1st Amendment jurisprudence that the liberals consider more important than political expression, such as a right to burn a flag, will remain in effect even if the Obama-Kagan view is adopted.
Since the dog-and-pony-show tradition of having Supreme Court nominees testify before the Senate Judiciary Committee began, most nominees have refused to enter into discussions of particular issues and areas of law that might come before the court. To do so, they contended, would endanger the separation of powers.
Senators in general have supinely accepted this bogus reference to an extra-constitutional principle as rationale enough for nominees’ stonewalling. Since they are not yet on the court, nominees’ views have nothing to do with the separation of powers The principle is extra-constitutional because the Framers chose to establish checks and balances (such as giving the Senate and President both roles in appointments) instead of separation of powers (which would have assigned the task of appointing people to one branch).
Fortunately, Kagan argues that senators should reject this argument. She says they ought to require nominees to explain their views in important areas such as the freedom of the press and the freedom of speech.
Republicans say that handing Congress back to them in November would move America toward restoration of constitutional government. All right, here’s your chance: show us. Expose Kagan as either a wolf in sheep’s clothing or the type of person Obama would not have nominated if only he had known more about her.
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