An appointment to the Supreme Court is one of the most important positions an individual can hold in the United States. It’s a lifetime position on the highest court of the land. I take very seriously my constitutional role of advice and consent. The Senate’s job is not just to provide advice and consent by confirming nominees who are intelligent and accomplished. Our job is to confirm nominees who will be fair and impartial judges – individuals who truly understand the proper role of a Justice in our system of government. Our job is to confirm nominees who will faithfully interpret the law and Constitution without personal bias or prejudice.
So when the Senate makes its determination, we must carefully assess the nominee’s legal experience, record of impartiality, and commitment to the Constitution and rule of law. We need to assess whether the nominee will be able to exercise judicial restraint. We have to determine if the nominee can resist the siren call to overstep his or her bounds and encroach upon the duties of the legislative and executive branches.
Fundamental to the United States Constitution are the concept of checks and balances and the principle of separation of powers. The preservation of our individual freedoms depends on restricting the role of policy-making to legislatures, rather than allowing unelected judges with lifetime appointments to craft law and social policy from the bench. The Constitution constrains the judiciary, just as much as it constrains the legislative and executive branch.
When President Obama spoke about the criteria by which he would select his judicial nominees, he placed a premium on a judge’s ability to have “empathy” when deciding the “hard” cases. This empathy standard glorifies the use of a judge’s “heart” and “broader vision of what America should be” in the judicial process. He said that the individuals he would nominate to the federal judiciary would have “a keen understanding of how the law affects the daily lives of the American people.” So when President Obama nominated Elena Kagan to the Supreme Court, we have to assume that he believed she met his “empathy” standard.
This empathy standard is a radical departure from our American tradition of blind, impartial justice. That’s because empathy necessarily connotes a standard of partiality. A judge’s impartiality is absolutely critical to his or her duty as an officer in an independent judiciary – so much so that it is actually mentioned three times in the oath of office for federal judges. Empathetic judges who choose to embrace their personal biases cannot uphold their sworn oaths under the Constitution. Rather, judges must reject that standard and decide cases before them as the Constitution and the law requires, even if it compels a result that is at odds with their own political and ideological beliefs.
Justice is not an automated or mechanical process. Yet, it shouldn’t be a process that permits inconsistent outcomes determined by a judge’s personal predilections, rather than the Constitution and the law. An empathy standard that encourages a judge to pick winners and losers based on his or her personal and political beliefs is contrary to our American tradition of justice.
That’s why we should be cautious in deferring to President Obama’s choices for the judicial bench. We should carefully evaluate these nominees’ ability to be faithful to the Constitution. Nominees should not pledge allegiance to the goals of a particular political party or outside interest groups that hope to implement their political and social agendas on the bench.
When she was nominated to the Supreme Court, Vice President Biden’s Chief of Staff Ron Klain assured the left wing groups that they had nothing to worry about Elena Kagan because she is “clearly a legal progressive.” It’s pretty safe to say that President Obama was true to his promise to pick an individual who likely would rule in accordance with these groups’ wishes. A Justice shouldn’t be a member of someone’s team, working to achieve a preferred policy result on the Supreme Court. The only team a Supreme Court Justice should be on is the team of the Constitution and the rule of law.
I’ve said on prior occasions that I don’t believe judicial experience is an absolute prerequisite for serving as a judge. Solicitor General Kagan has no judicial experience and has very limited experience as a practicing attorney. Unlike with a judge or even a practicing lawyer, we don’t have any concrete examples of her judicial method in action. Thus, the Senate’s job of advice and consent is much more difficult – we don’t have any clear substantive evidence to demonstrate Solicitor General Kagan’s ability to transition from a legal academic and political operative to a fair and impartial jurist.
Solicitor General Kagan’s record and her Judiciary Committee testimony failed to persuade me that she would be capable of making this crucial transformation. Her experience has primarily been in politics and academia. As has been pointed out, working in politics doesn’t disqualify an individual from being a Justice. However what does disqualify an individual is an inability to put politics aside in order to rule based on the Constitution and the law. In my opinion, Solicitor General Kagan did not demonstrate that she could do that during her Committee testimony. Moreover, throughout her hearing, she refused to provide us with details on her views on constitutional issues.
It was unfortunate that we were unable to elicit forthcoming answers to many of our questions in an attempt to assess her ability to wear the judicial robe. She was not forthright in discussing her views on basic principles of Constitutional law, her opinions of important Supreme Court cases, or her personal beliefs on a number of legal issues. This was extremely disappointing. Candid answers to our questions were essential to us being able to ascertain whether she possesses the proper judicial philosophy for the Supreme Court. In fact, her unwillingness to directly answer questions about her judicial philosophy indicated a political approach to the hearing. I was left with no evidence that Solicitor General Kagan wouldn’t advance her own political ideas if she were confirmed to the federal bench.
Solicitor General Kagan’s refusal to engage in a meaningful discussion with us was particularly disappointing because of her position in a 1995 law review article entitled Confirmation Messes, Old and New. In that article, then Chicago Law Professor Kagan wrote that it was imperative that the Senate ask about, and Supreme Court nominees discuss, their judicial philosophy and substantive views on issues of constitutional law. Specifically, then Professor Kagan wrote, “When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.”
Bottom line, Solicitor General Kagan did not live up to her own standard. She was non-responsive to many of our questions. She backed away from prior positions and statements. She refused to discuss the judicial philosophies of sitting Justices. When asked about her opinions on constitutional issues or Supreme Court decisions, she either declined to answer or engaged in an overview of the status of the law, rather than a discussion of her own personal views. Because of her shallow record on the issues, this approach to the hearing was extremely troubling.
At her confirmation hearing, Solicitor General Kagan told us to “look to [her] whole life for indications of what kind of judge or Justice [she] would be.” Well, Solicitor General Kagan’s record has not been a model of impartiality. There is no question that throughout her career, she has shown a strong commitment to far left ideological beliefs. Solicitor General Kagan’s upbringing steeped her in deeply held liberal principles that at one point she stated she had “retained . . . fairly intact to this date.” Her jobs have generally never required her to put aside her political beliefs, and she has never seen fit to do so. Her first instinct, and the instincts that she has relied upon throughout her career, are her liberal, progressive political instincts put to work for liberal, progressive political goals. I have no evidence that if Solicitor General Kagan were confirmed to the Supreme Court, she would change her political ways or check her political instincts or goals at the courthouse door.
In fact, Solicitor General Kagan gained her legal expertise by working in politics. She started out by working on Congresswoman Liz Holtzman’s Senate campaign, hoping for a “more leftist left.” She also worked as a volunteer for Michael Dukakis’ Presidential run. The Dukakis campaign wisely put her to work at a task that is political to the core – opposition research. There she found a place where she was encouraged to use her political savvy, and make decisions based on her liberal, progressive ideology.
Moreover, while clerking for Justice Marshall, Solicitor General Kagan’s liberal personal convictions – rather than the Constitution and the law – seemed to be her ultimate guide when analyzing cases. Solicitor General Kagan consistently relied on her political instincts when advising Justice Marshall, channeling and ultimately completely embracing his philosophy of “do[ing] what you think is right and let[ting] the law catch up.” Her Marshall memos clearly indicate a liberal and outcome-based approach to her legal analysis. In several of her memos, it’s apparent she had a difficult time separating her deeply held liberal views and political beliefs from the law.
For example, in one case she advised Justice Marshall to deny certiorari because the Court might make “some very bad law on abortion.” In another case, she was “not sympathetic” that an individual’s constitutional right to keep and bear arms had been violated. In essence, her judicial philosophy was a political one.
During her tenure at the White House, Solicitor General Kagan worked on a number of highly controversial issues, such as abortion, gun rights, campaign finance reform, and the Whitewater and Paula Jones scandals. She herself described her work for President Clinton as being primarily political in nature. In a 2007 speech, she said, “During most of the time I spent at the White House, I did not serve as an attorney, I was instead a policy adviser . . . . It was part of my job not to give legal advice, but to choose when and how to ask for it.” And her documents from the Clinton Library prove just that. She forcefully promoted far left positions and offered analyses and recommendations that were far more political than legal in nature.
For example, during the Clinton Administration, Solicitor General Kagan was instrumental in leading the fight to keep partial birth abortion on the books. Documents show that she boldly inserted her own personal beliefs in the place of science. Specifically, she re-drafted language for a non-partisan medical group to override scientific findings against partial birth abortion in favor of her own extreme views. Despite the lack of scientific studies showing that partial birth abortion was never necessary and her own knowledge that “there aren’t many [cases] where use of the partial-birth abortion is the least risky, let alone the ‘necessary,’ approach,” Solicitor General Kagan had no problem intervening with the American College of Obstetricians and Gynecologists (also known as ACOG) to change their policy statement.
After her intervention, ACOG’s statement no longer accurately reflected the medically supported position of the obstetricians and gynecologists. Rather, the ACOG statement now said that partial birth abortions should be available if the procedure might affect the mother’s physical, emotional or psychological well-being. The reality is that Solicitor General Kagan’s change was not a mere clarification. It was a complete reversal of the medical community’s original statement.
Other documents show that Solicitor General Kagan also lobbied the American Medical Association to change a statement it had issued on partial birth abortion. These documents demonstrate her “willingness to manipulate medical science to fit the Democratic Party’s political agenda on the hot-button issue of abortion.”
During her hearing, Solicitor General Kagan refused to admit that she participated in the decision-making process of what language ACOG would use in their statement on partial birth abortion. The documents present a very different picture. Although she stated that there was “no way she could have intervened with ACOG,” she did exactly that. Instead of responding to a legitimate inquiry in an open and honest manner, she deflected the questions and gave, at best, non-responsive answers.
In addition, Solicitor General Kagan worked on a number of initiatives to undermine Second Amendment rights. She was front and center of the Clinton Administration’s anti-Second Amendment agenda. She collaborated closely with Jose Cerda on the Administration’s plan to ban guns by “taking the law and bending it as far as we can to capture a whole new class of guns.” After the Supreme Court in Printz v. United States found parts of the Brady handgun law to be unconstitutional, she endeavored to find legislative and executive branch responses to deny citizens their Second Amendment rights.
Even in academia, Solicitor General Kagan took positions that were based on her strongly held personal beliefs, rather than an even handed reading of the law. As Dean of Harvard Law School, she actively defied federal law by banning military recruiters from campus while the nation was at war. Prior to her appointment as Dean, the Department of Defense had made clear to Harvard that the school’s previous recruitment policy was not in compliance with the Solomon Amendment. So Harvard changed its policy.
But when the Third Circuit – which does not include Massachusetts – ruled on the issue, then Dean Kagan immediately reinstituted the policy barring the military from Harvard campus. She took this position because she personally believed that the military’s long standing “Don’t Ask, Don’t Tell” policy was, in her words, “a profound wrong – a moral injustice of the first order.” She claimed that her policy was equal treatment. However, the Air Force believed the policy was “playing games” with its ability to recruit. The Army believed the policy resulted in it being “stonewalled”.
Then Dean Kagan was entitled to her opinion, but she was not free to ignore the law. The Solomon Amendment required that military recruiters be allowed equal access to the university as other recruiters. The bottom line is that then Dean Kagan refused to follow the law and instead interpreted it in accordance with her personal beliefs. The Supreme Court unanimously rejected her legal position on the Solomon Amendment and upheld our military.
I’m concerned that Solicitor General Kagan will continue to use her personal politics and ideology to drive her legal philosophy if she is confirmed to the Supreme Court, particularly since her record shows she has worked to bend the law to fit her political wishes.
Further, I’m concerned with the praise Solicitor General Kagan has lavished on liberal jurists who promote activist philosophies, like that of Israeli Judge Ahron Barak. Judge Barak is a major proponent of judicial activism who believes judges should “bridge the gap between law and society” and use international law to advance a social and political agenda on the bench.
At a Harvard Law event attended by then Dean Kagan, he noted with approval cases in which “a judge carries out his role properly by ignoring the prevalent social consensus and becoming a flag bearer of new social consensus.” When I asked Solicitor General Kagan if she endorsed such an activist judicial philosophy, she replied that Judge Barak’s philosophy was something “so different from any that we would use or want to use in the United States.” This contradicts her previous statement about Judge Barak that he is a “great, great judge” who “presided over the development of one of the most principled legal systems in the world.”
I’m not able to ascertain if Solicitor General Kagan agrees with Judge Barak or rebukes his positions. So I’m left to believe that she endorses the judicial method of her “judicial hero” and his views on judicial restraint (or lack thereof). I cannot support a Supreme Court nominee whose judicial philosophy endorses judicial activism rather than judicial restraint.
With respect to the Second Amendment, Solicitor General Kagan testified that Heller and McDonald were binding precedent for the lower courts and due all the respect of precedent. However, I worry that if confirmed, her deeply ingrained personal beliefs will cause her to overturn this precedent because she does not personally agree with those decisions or the constitutional right to bear arms.
At the hearing, Solicitor General Kagan was unwilling to discuss her personal views on the Second Amendment or whether she believed the right to bear arms is a fundamental right. When I asked her about her thoughts on the issue, she simply replied that she “had never thought about it before.” I also asked her whether she believed that self-defense was at the core of the Second Amendment. She could only respond, “I have never had the occasion to look into the history of the matter.” As a former constitutional law professor both at Chicago and Harvard, Solicitor General Kagan’s response is troubling.
A key theme in the U.S. Constitution reflects an important mandate of the Declaration of Independence. It’s the recognition that the ultimate authority of a legitimate government depends on the consent of a free people, “the consent of the governed”. As Thomas Jefferson wrote, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men deriving their just powers from the consent of the governed.” As former Attorney General Edwin Meese explains, “That ‘all men are created equal’ means that they are equally endowed with unalienable rights. . . . Fundamental rights exist by nature, prior to government and conventional laws. It is because these individual rights are left unsecured that governments are instituted among men.” I’m concerned that Elena Kagan refused to agree with my comments about the Declaration of Independence that there are such things as inalienable rights that government does not give and, thus, cannot take away.
Similarly, Senator Coburn asked Solicitor General Kagan if she agreed with William Blackstone’s assessment about the right to bear arms and use those arms in self-defense. She replied, “I don’t have a view of what are natural rights, independent of the Constitution.” This is concerning to me, because as one commentator stated, “A legal scholar with no take on such a fundamental constitutional topic [of which individual rights qualify as natural or inalienable in character] seems at best disingenuous and at worst frightening. How can one effectively analyze and apply the Constitution without a firm grip on what basic freedoms underlie our founding documents and national social compact? How can one effectively understand the original intent of the Framers without any opinion on the essential place of certain liberties within the American legal framework?” Bottom line, the fact that Solicitor General Kagan refused to answer our questions about her personal opinions on the right to bear arms leads me to conclude that she does not believe people have a natural right of self-preservation.
I’m concerned about Solicitor General Kagan’s views on our constitutional right to bear arms not only because of her anti-Second Amendment work during the Clinton Administration, but also in light of her memo in the Sandidge case when she clerked for Justice Marshall. In her memo, she summarily dismissed the petitioner’s contention that the District of Columbia’s firearms statutes violated his Second Amendment right to “keep and bear arms.” Instead of providing a serious basis for her recommendation to deny certiorari, her entire legal analysis of this fundamental right consisted of one sentence: “I am not sympathetic.”
A further basis for my concerns about whether she will protect or undermine the Second Amendment if she is confirmed, is the decision of the Office of Solicitor General under her leadership not to submit a brief in the Second Amendment McDonald case. Solicitor General Kagan’s record clearly shows that she is a supporter of restrictive gun laws and has worked on numerous initiatives to undercut Second Amendment rights. So not surprisingly, as Solicitor General, she could not find a compelling federal interest for the United States to submit a brief in a case that dealt with fundamental rights and the Second Amendment of the Constitution. This was a case that everyone knew would have far reaching effects. It’s apparent that political calculations and personal beliefs played a role in Solicitor General Kagan’s decision not to file a brief in this landmark case to ensure that the constitutional rights of American citizens were protected before the Supreme Court.
With respect to the Constitution’s Commerce Clause, Solicitor General Kagan was asked whether she believed there are any limits to the power of the federal government over the individual rights of American citizens. Unfortunately, her response did not assure me that, if confirmed, she would ensure that any law Congress creates does not infringe on the Constitutional rights of our citizens. Specifically, Senator Coburn asked her whether she believed a law requiring individuals to eat three vegetables and three fruits a day violated the Commerce Clause. Though pressed on this and other lines of questioning on the Commerce Clause, she was unwilling to comment on what would represent appropriate limits on federal power under the Constitution.
I’m not sure that Solicitor General Kagan understands that ours is a limited government, and that the restraints on the federal government’s power are provided by the Constitution and the concept of federalism on which our nation is founded. The powers of the federal government are explicitly enumerated in Article 1, Section 8 of the Constitution; further, the Tenth Amendment provides that the powers not expressly given to the federal government in the Constitution are reserved to the States. The Founding Fathers envisioned that our government would be constitutionally limited in protecting the fundamental rights of life, liberty and property – and that the laws and policies created by the government would be subject to the limits established by the Constitution. As James Madison wrote in Federalist 45, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
I’m not convinced that Solicitor General appreciates that there are express limits the Constitution places on the ability of Congress to pass laws. I’m not persuaded by her non-answers to our Commerce Clause questions that she won’t be a rubberstamp for unconstitutional laws that threaten an individual’s personal freedoms.
With respect to marriage, I’m concerned with Solicitor General Kagan’s ability to disregard her own personal beliefs in order to defend the Defense of Marriage Act (DOMA). Under her supervision, the United States filed a brief stating that “the Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal.” At the hearing, she refused to say whether this was an appropriate statement to make, considering that it’s the duty of the Solicitor General to vigorously defend the laws of the United States. How are we to believe that she’ll uphold a law as a Supreme Court Justice when she disagrees with that law? When she was tasked as the government’s lawyer to vigorously defend the law, clearly she put her personal politics and beliefs first. It’s obvious that supporting the repeal of a law is not vigorously defending it.
There are other occasions where Elena Kagan’s personal beliefs rather than the law appear to have guided her decisions as Solicitor General of the United States. For example, with respect to her handling of the lawsuits attempting to overturn the Don’t Ask, Don’t Tell policy, she did not file an appeal in the Witt v. Department of the Air Force case to uphold the constitutionality of the law, even though there was a split in the Circuit Courts on this issue. I’ve already discussed Solicitor General Kagan’s actions at Harvard Law and how she thwarted our military’s recruitment efforts because of her deeply held views against the Don’t Ask, Don’t Tell policy. I can’t imagine that her personal opinions on this matter did not play a role in her decision-making at the Solicitor General’s Office with respect to the Witt case.
I’m also concerned about Solicitor General Kagan’s view of property rights. The Fifth Amendment states that the government “shall not take private property rights for public use without just compensation.” In 2004, the Supreme Court took an expansive view of “public use” in Kelo v. City of New London, allowing the government to take private property so that it could be transferred to another person to promote economic development. At the hearing, Solicitor General Kagan refused to comment on whether she believed the Court correctly had interpreted the text of the Constitution in the Kelo case. She also did not elaborate on any limits to the government’s ability to take private property. I’m concerned that she does not agree that the ruling in Kelo undermines citizens’ property rights contained in the Constitution.
Solicitor General Kagan’s view of the role of international law is also disturbing. At the hearing, she stated that a Justice could look to international law to find “good ideas” when interpreting the United States Constitution and laws. However, when I pressed her on which countries a Justice should look to in order to find those “good ideas”, she refused to give answers.
I’m unaware how international law can help us better understand the United States Constitution. That’s because international law shouldn’t be used to interpret our Constitution. When we begin to look to international law to interpret our own Constitution, we are at a point where the meaning of the United States Constitution is no longer determined by the American people.
The importance Solicitor General Kagan places on international law is made abundantly clear by her actions as Dean of Harvard Law School when she implemented a curriculum mandating that all first year law students take an international law course. She said that the first year of law school is the “foundation of legal education,” forming lawyers’ “sense of what the law is, its scopes, its limits, and its possibilities.” Yet United States Constitutional law, the class that teaches the founding document of our legal system – a class that almost every other law school in the country believes first year students should take – is not a mandatory first year course at Harvard Law.
I don’t disagree that it’s helpful for students to understand international law. But I question why it should be a first year requirement and thus mandatory to graduate – especially when United States Constitutional law is not required to graduate from Harvard Law School at all! Yes, hard to believe, a student can graduate from Harvard Law without having to take a single constitutional law class.
When Solicitor General Kagan was asked about this, she answered, “constitutional law should primarily be kept in the upper years where students can deal with it in a much more sophisticated and in-depth way.”
This may seem reasonable, but it does not address why a student is never required to take a constitutional law class to graduate. Because as Dean she never saw the need to make constitutional law a requirement to graduate, I’m led to believe that Solicitor General Kagan believes that international law is more important than United States Constitutional law. This is remarkable, or maybe I should say shocking, considering that the Constitution is the United States’ most fundamental law.
In conclusion, I’m deeply concerned that, if confirmed to the Supreme Court, Solicitor General Kagan will put her own strongly held personal beliefs above that of the Constitution and the law. Throughout her life, Solicitor General Kagan’s background has allowed her to work without having to check her political and ideological views. Her experiences throughout her life have allowed her to indulge, reinforce, and ultimately cement her deeply ingrained liberal beliefs. In my opinion, her record strongly suggests that she will not be able to act in an unbiased manner as a Justice. Her answers and evasions to our questions at the Judiciary Committee hearing also raise serious concerns about her ability to set aside her personal political goals when interpreting the Constitution. I’m convinced that once confirmed to the Court, her “finely tuned . . . political antennae” and her “political heart” will drive her judicial method, rather than judicial restraint.
At the hearing, Solicitor General Kagan tried to distance herself from her Oxford Thesis where she embraced judicial activism. In that thesis, she wrote, “it is not necessarily wrong or invalid” for judges to try to “mold and steer the law in order to promote certain ethical values and achieve certain social ends.” Our great American tradition and the United States Constitution soundly reject the notion of judges overstepping their constitutional role by implementing their personal political and social goals on the bench. I’m not convinced that, if confirmed, Solicitor General Kagan will actually be able to resist the temptation to do that. That’s because I believe her judicial philosophy is really nothing more than a political philosophy. This being the case, I’m not at all convinced that she’ll be able to apply the law impartially and not be a rubberstamp for the President’s or the left wing interest groups’ political and social agenda.
Solicitor General Kagan acknowledged that it’s “difficult to take off the advocate’s hat and put on the judge’s hat.” Yet, she could not show us that she had the ability to make the transition from an academic and political operative to a fair and impartial jurist. Her testimony did not disprove her far left record, or demonstrate that she would not let her political views dominate her approach to the law. I’m not persuaded that Solicitor General Kagan will be able to overcome that difficulty and transition into an unbiased judge, so I’m voting no.
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