May 10th, 2010
Curt Levey, The Committee for Justice
Realizing that the retirement of Justice Stevens threatened to leave the Supreme Court without a military veteran, the Committee for Justice and others urged President Obama to replace Stevens with someone who has “the military experience necessary to understand and evaluate the government’s national security arguments.” Most importantly, Justice Stevens himself talked recently about the importance of having “at least one person on the Court who had military experience.” It was disappointing enough when the President showed no interest in this important concern. But in selecting Elena Kagan, Obama has chosen to replace the Court’s last veteran with a nominee who essentially spit in the eye of America’s armed forces. Kagan banished military recruiters from the Harvard Law School campus during a time of war, after pronouncing our armed forces guilty of “a moral injustice of the first order” for carrying out the Clinton Administration’s “don’t ask, don’t tell” policy.
Millions of Americans will be outraged when they learn that Obama has picked a Supreme Court nominee with a demonstrated hostility to the very armed forces that make our freedom and constitutional rights possible. But that’s just one reason why President Obama is in for a more difficult confirmation fight than he bargained for when he chose Kagan.
Kagan starts out with more than thirty votes against her confirmation to the High Court. Only seven Republican senators voted to confirm her as Solicitor General 14 months ago. Now she faces the less deferential standard applied to lifetime Supreme Court appointments, an emboldened Republican Party, nervous red state Democratic senators, and a public concerned about the nation’s leftward drift.
Added to that mix will be scrutiny of Kagan’s out-of-the-mainstream views on gay rights, which are sure to generate controversy and vigorous opposition. Kagan’s argument that “don’t ask, don’t tell” justifies kicking the military off campus was unanimously rejected by the Supreme Court in 2006, placing her to the left of even the Court’s most liberal Justices on the issue of gay rights and the First Amendment. Moreover, Kagan allowed her obviously strong feelings about gay rights to interfere with her duties as Solicitor General. At least twice during the last year, in cases involving challenges to the Defense of Marriage Act and the “don’t ask, don’t tell policy,” Kagan failed to vigorously defend federal law despite her institutional obligation and promise to senators to do so.
At a time when the number one goal of the purveyors of judicial activism is the discovery of a right to gay marriage in the U.S. Constitution, the American people should be worried about this nominee’s views on gay rights. However, in light of speculation and White House denials concerning Kagan’s sexual orientation, let me be clear that it is Kagan’s constitutional orientation and not her sexual orientation that is a legitimate cause for concern.
President Obama’s selection of Kagan is particularly disappointing given that the potential nominees he considered included at least two highly respected judges with a proven track record of moderation – Merrick Garland and Leah Ward Sears. Conservatives made it clear that they would have a hard time opposing either nominee. While no nominee would silence all the President’s critics, Garland or Sears would have been widely seen as a bipartisan, non-ideological choice and either would likely have been confirmed by an overwhelming margin in the Senate. Instead, the President chose to pick a fight with Republicans.
Perhaps picking a fight is part of the President’s reported strategy of using the confirmation debate to portray Democrats and the judges they chose as protectors of the “little guy.” If so, Elena Kagan is a strange choice because her background is far more elitist than humble. In addition to heading Harvard Law School, one of the most elite schools in the world, and serving as a Clinton Administration politico, Kagan was a paid member of a Goldman Sachs board during the height of Wall Street’s excesses.
It’s not clear how the White House can portray Elena Kagan as a woman of the people, but it is apparent that the Administration plans to portray Kagan as a moderate by calling the press’s attention to the concerns of some on the Left that she is not a genuine liberal. It is hard to know if concerns expressed on the Left are borne of disingenuousness or just a propensity to worry. However, the bottom line is that it’s downright silly to imagine that a fervent supporter of gay rights who thrived on the Harvard Law School faculty and in the Clinton Administration and embraces Justice Thurgood Marshall’s approach to judging will turn out to be a closet conservative once on the High Court.
Specifically, Kagan described Justice Marshall’s view of the judiciary – that its primary mission is to “show a special solicitude for the despised and disadvantaged” and “to safeguard the interests of people who had no other champion” (Kagan’s words) – as “a thing of glory.” The Kagan / Marshall judicial philosophy sounds an awful lot like President Obama’s promise to appoint judges with “the empathy to recognize what it’s like to be a young teenage mom [or] poor, or African-American, or gay, or disabled, or old,” a view of judging that even the very liberal Sonia Sotomayor rejected last summer.
Particularly because the American people are concerned like never before about unrestrained federal power, Elena Kagan’s view of a judge’s role is a real threat to her confirmation, as Judiciary Committee Ranking member Jeff Sessions has noted. After all, a Supreme Court that is free to ignore the law in order to “show a special solicitude” for the interests of certain groups or to discover new rights in the Constitution – such as a right to gay marriage – is an insitution whose power is essentially limitless.
For example, when the constitutionality of ObamaCare comes before the Supreme Court, as is inevitable, will a Justice Kagan decide that “special solicitude” for the disadvantaged is served by okaying Obama’s federalization of health care or, instead, by protecting the rights of those who do not want to be coerced into purchasing health insurance? In other words, it is hard to see how the Kagan / Marshall standard puts any limits on a Justice’s indulgence of their personal policy preferences.
Kagan’s troubling statements about judicial philosophy will take on added significance given her thin record, which includes a puzzling dearth of academic scholarship after more than a decade in academia. Her thin record also makes it vital that the White House release, in a timely manner, the documents Kagan produced while serving as President Clinton’s associate counsel and domestic policy advisor.
Finally, given her thin record, Kagan owes it to the American people to engage in an open and honest debate with senators about her judicial philosophy and other controversial views. One hopes that Kagan agrees, given her assertion that “when the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce.”