Exploring Supreme Court Nominee Elena Kagan

by David Limbaugh

President Barack Obama’s nominee for the Supreme Court, Elena Kagan, once wrote that Senate confirmation hearings for Supreme Court judicial nominees should explore a “nominee’s set of constitutional views and commitments.” By all means, let’s accommodate her and begin exploring.

We could start with the presumption, given Obama’s ideology and judicial philosophy, that any nominee he chooses will be troubling for advocates of judicial restraint and interpreting the Constitution according to its original understanding. But let’s put that aside for this little exploration.

On my initial research, a number of problematic areas have surfaced. Consider, for starters:

—She has no judicial experience and hardly any experience practicing law. She’s mainly been an academic. I confess this one bothers me less than others, for I believe an intellectually honest academic, with proper respect for the Constitution, could make a fine appellate judge.

—Kagan, as dean of Harvard Law School, joined an amicus brief in an appeal to the U.S. Court of Appeals for the 3rd Circuit and another brief to the Supreme Court challenging a congressional law that denied federal funding to universities that didn’t allow military recruiters access to their campuses. Kagan was outraged at the military because of its “don’t ask, don’t tell” policy, which banned openly homosexual men and women from the service, once calling it “a profound wrong — a moral injustice of the first order.”

—Kagan clerked for Justice Thurgood Marshall. Following Marshall’s death, Kagan wrote a glowing tribute to him in the Texas Law Review. Two passages from her article deserve particular scrutiny. She wrote, approvingly: “In Justice Marshall’s view, constitutional interpretation demanded, above all else, one thing from the courts: it demanded that the courts show a special solicitude for the despised or disadvantaged. It was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government — to safeguard the interests of people who had no other champion. The Court existed primarily to fulfill this mission.” Kagan said Marshall told her the other justices had rejected his proposal for a new Supreme Court rule: “When one corporate fat cat sues another corporate fat cat, this Court shall have no jurisdiction,” Kagan wrote. “However much some recent Justices have sniped at that vision, it remains a thing of glory.”

Like Obama and Marshall, Kagan apparently believes the court exists to protect the little guy against evil corporate America, not to interpret the Constitution and the law as written.

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