In the past few months, I’ve had countless personal debates on whether conservatives and GOP senators should take the time to oppose Elena Kagan. I’ve heard all of these claims: President Obama could have nominated someone much more radical (hence, we should be thankful). Kagan is considered well-qualified in the legal world. Elections have consequences.
Have you been hearing these arguments too? They make you feel like opposing Kagan would be equivalent to tying a kite to your wrist and expecting to fly.
Kagan’s been painted as a moderate. Paint me as A-Rod. It’s not radical to oppose her, and here’s why.
Could President Obama have nominated someone much more radical? He could have nominated someone much more overtly radical. But let’s face it: what we’re being told about Kagan’s “moderate” tendencies was the exact same line given about now Supreme Court Justice Sonia Sotomayor. And, one year later, we see the “moderate” Sotomayor’s record: she agrees most often with the Court’s liberal voting block. She also only disagrees with liberal justices Ruth Bader Ginsburg and Stephen Breyer 10 percent of the time.
No, they’re not the same person, but Kagan has raised red flags on several issues, including her judgment at letting Harvard’s military recruitment policy and dislike for Don’t Ask, Don’t Tell take precedent over federal law. The Supreme Court unanimously overturned the amicus brief she signed on the issue. So when the legal rubber hit the road, even Ginsburg thought she was wrong.
The argument I don’t get is this “elections have consequences.” That phrase does a lot to explain how we got Kagan, but not how a senator should vote. If a senator were supposed to take everything Obama gave them because elections have consequences, why fight Obamacare? A senator is supposed to advise and consent – not rubber stamp.
Finally comes the debate on whether she’s well qualified. Her resume is definitely a thing of beauty in the legal profession. But a resume is not deciding a case. A person is. So if a nominee is giving senators pause regarding her judgment, it shouldn’t be radical to vote against her, Harvard or not.
Elena Kagan should be judged on her record. Her record is unsettling on any kind of right to life (read Americans United for Life’s reasons why). And when it came down to choosing between following the law on military recruiting and making a statement, she made a statement. That’s her right to do so.
But actions have consequences, too.