I truly like Elena Kagan, but she is doing a terrible job of telling the truth during these hearings. At yesterdays proceedings, she lied in no less than five areas of the law, none of them boding well for the future of the Constitution.
Kagan was asked by Senator Jeff Sessions about a memo from the American College of Obstetricians and Gynecologists (ACOG). That memo stated, [A] select panel convened by ACOG could identify no circumstances under which [the partial-birth] procedure would be the only option to save the life or preserve the health of the woman. Kagan notated next to this sentence, This, of course, would be disaster.
When asked about it, first she tried to deny that she had written it; she would admit only that it is my handwriting. Later she acknowledged that she was in fact responsible for the comment.
Then she obfuscated with wild philosophic and legal gyrations that would put a stripper to shame: President Clinton had strong views on this issue and what he thought was that this procedure should be banned, in all cases except where the procedure was necessary to save the life or to prevent serious health consequences to the woman and those were always his principles. And we tried over the course of the period of time when this statute was being considered, actually twice, to get him absolutely the best medical evidence on this subject possible.
Well, no. She tried to have ACOG rewrite the memo so that it would emphasize the possible dangers to the health of the woman in banning dilation and extraction (D&X), the partial-birth abortion procedure. She then informed Clinton of the memo, which now emphasized, An intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the womans particular circumstances can make this decision. She finally noted, In sum, doctors have other options, but those other options may be more risky or otherwise more undesirable from a medical standpoint. Well, no, thats not what the original said. But Kagan said her desire was merely to help clarify the statement, not to change it.
The Solomon Amendment
Kagan was grilled today by Senator Graham on the Solomon Amendment. She said that in banning the military from involvement in the Office of Career Services, she was not making a political statement at all.
The record begs to differ. Here is Kagans actual wording in objecting to the militarys use of OCS (after being overruled by the Harvard administration in the aftermath of the Supreme Court upholding the Solomon Amendment): I believe the military’s discriminatory employment policy is deeply wrong – both unwise and unjust. And this wrong tears at the fabric of our own community by denying an opportunity to some of our students that other of our students have. Does that sound political to you?
Kagan also stated that she didnt bar the military from campus. As I wrote earlier, barring them from OCS is basically the equivalent of barring them from campus. Everyone I know got a job through OCS. Everyone. Those who got work from the military did so because they sought out the military (I know, because I did the same thing when I was considering becoming a JAG).
There was a lot of talk about this today. First, Senator Grassley asked whether Baker v. Nelson (1972) was settled law. The Supreme Court refused to hear that case because they said that marriage was a state issue and no federal question was posed. Kagan said that this did not constitute solid precedent because the Court did not hear the case.
This is her way of saying that shell support gay marriage under a massive misapplication of the Fourteenth Amendment. The fact is that the reason the Court didnt hear the case is becausethere was nothing in the case that implicated the Constitution. As Sen. Grassley noted, nothing has changed in the Fourteenth Amendment since 1972. Of course, Kagan doesnt think thats true, because she relies on Justice Kennedys pernicious phraseology (as articulated in another gay rights case,Lawrence v. Texas): evolving standards of morality.
When asked about same sex marriage by Sen. Cornyn, she tried the same approach shes been using for days: spinning around the issue. Instead of giving her view on whether same-sex marriage is mandated by the Constitution, she stated, There is no federal constitutional right to same-sex marriage. In other words, she summarized what we already know there iscurrently no rightto same-sex marriage. That tells us nothing about what she will rule on the issue.
Naturally, shell rule in favor of same-sex marriage. All of this is claptrap of the highest order.
If you want to hear a bizarre response to a legal question, listen to Kagans response to Senator Grassleys question on Kelo, the case that essentially decided that party As property can be given to party B if party B can generate more tax revenue from the property. Grassley asked if she agreed with Kelo.
Kagans answer: the goal of Kelo was to kick it back to the states. She then said that the states had taken actions to prevent Kelo-type situations from occurring.
This is nonsense. It is equivalent to arguing that Plessy v. Ferguson was an attempt to kick it back to the states, forcing them to pass laws barring segregation, rather than an obviously horrible decision legalizing segregation under the Fourteenth Amendment. The purpose of Supreme Court decisions is to set the state of the law. It is not to incentivize states to do anything. We can only imagine that Kagan will attempt to use this same justification in the future for all her bad decisions (I was only attempting to incenvitize states to do X!).
Sen. Graham asked Kagan to identify an activist judge in American history. Kagan declined, then tried to define what activist meant. She came up with three relevant factors: (1) an activist doesnt defer to the political branches; (2) an activist doesnt respect precedent; and (3) an activist doesnt decide cases narrowly.
Not even close. The definition of an activist judge is simple: a judge who tries to read his/her moral preference into the Constitution of the United States. Was the Court activist for failing to defer to the Congress in Citizens United? Absolutely not, because of a little thing called the First Amendment (violating Kagans first factor). Was the Court activist when it overruled precedent in Brown v. Board? No, because Plessy was wrong (violating Kagans second factor). Would the Court be wrong to strike down ObamaCare based on the fact that it is utterly unauthorized by the Constitution? Of course not, because the Constitution has certain standards that have not been met (violating Kagans third factor).
The truth is that judicial activism is a term that has been hijacked and perverted by the left. It has nothing to do with respect for precedent (after all, most Supreme Court precedent of the last fifty years sucks beyond belief and has nothing whatsoever to do with the Constitution), nor respect for the other branches (after all, the Supreme Court is supposed to be part of that checks and balances system, right?), nor even with narrow rulings. Judicial activism is, purely and simply, acting like a politician rather than someone who understands the wording of law in its original context. Activist judges would not dare to interpret the Sherman Antitrust Act with the same freewheeling disregard as they do the Constitution. You can spot an activist judge a mile off, and Kagan is one of them.