Conservative Legal Experts React

by TheOflu | May 10th, 2010

President Obama is planning to nominate Elena Kagan to replace retiring Justice John Paul Stevens on the Supreme Court later this morning.  Here are some statements from prominent conservative legal experts, professors, and former Supreme Court clerks reacting to the nomination.

Check back here at JCN and a SCOTUSReport for continuing news on the nomination.

Carrie Severino, Chief Counsel, Judicial Crisis Network, former clerk to Justice Clarence Thomas:

“President Obama has nominated Solicitor General Elena Kagan to replace Justice John Paul Stevens on the Supreme Court.  Obama wants to pack the court with reliable liberal votes to rubber-stamp an agenda that he knows the American people would not accept.  What better way than to appoint a loyalist from his own Department of Justice with a thin public record to advance his leftist legacy through the Court.

“Ever since her efforts to get on the D.C. Circuit were stymied for fear of her extremist views, Kagan has bent over backwards to avoid taking public positions on hot-button topics.  Except when she can’t help herself, like when she banned military recruiters during wartime from Harvard Law School because their Democrat-initiated ‘don’t ask don’t tell’ policy was, in her words, ‘a moral injustice of the first order.’

“Senators have a solemn duty to thoroughly examine each nominee’s views and to reject those who would not fairly apply the law, but would redefine it to accommodate their own values and beliefs.  In the past Solicitor General Kagan has advocated Senate hearings that thoroughly examine a nominee’s judicial philosophy; senators must hold her to her own standard, particularly given the scant record of her personal viewpoints she has carefully maintained.  Nothing less than the Constitution itself is at stake.”

David McIntosh, co-founder of the Federalist Society and former congressman from Indiana:

“I’m deeply disappointed that President Obama has chosen to nominate an individual who has demonstrated a lack of adherence to the limits of the Constitution and a desire to utilize the court system to enact her beliefs of social engineering. Solicitor General Kagan has been nominated with no judicial experience, a mere two years of private law practice, and only a year as Solicitor General of the United States. She is one of the most inexperienced nominees to the U.S. Supreme Court in recent memory.

“Ms. Kagan’s public comments should be highly disturbing to all Americans as they show what kind of a Justice she will be. She has been a vocal opponent of military recruiters on the Harvard Law School campus, placing political correctness above national security in a time of war. Ms. Kagan abandonded the will of the American people and the Congress by challenging the Defense of Marriage Act, proving she will merely rule based on her personal political preferences and not the law.  President Obama has, once again, nominated an individual who places a higher premium on political progressivism than adherence to the set of laws that have made this country strong and free. For someone tragically inexperienced and activist, Ms. Kagan represents President Obama’s ideal of transforming the Supreme Court into a vehicle for social reform and judicial affirmative action.”

Ed Whelan, president of the Ethics and Public Policy Center, former law clerk for Justice Scalia, and former counsel to the Senate Judiciary Committee:

"Elena Kagan has written that the confirmation process for Supreme Court justices "takes on an air of vacuity and farce" when the Senate fails "to engage nominees in meaningful discussion of legal issues."  She's argued for "the essential rightness — the legitimacy and the desirability — of exploring a Supreme Court nominee's set of constitutional views and commitments."

"It's especially important that the Senate hold Kagan to the Kagan Standard.  Among Supreme Court nominees over the last 50 years or more, Kagan may well be the nominee with the least amount of relevant experience.  She's been extremely guarded about her views, with the exception of gay rights, where she has been vehement in opposing federal laws she doesn't like and has worked as Solicitor General to undermine those laws.  The Senate needs to explore carefully whether Kagan would indulge her own values and policy preferences as a justice."

Rick Garnett, professor of law and associate dean of University of Notre Dame Law School, and former law clerk for Chief Justice Rehnquist: 

"Elections matter, and the election of President Obama has turned out to matter a great deal for the future decisions and direction of Supreme Court.  With the nomination of Solicitor General Kagan, the President has taken a significant step toward reshaping the Court and its work for generations.  No one should think that this nomination is inconsequential, or that it changes little because it involves merely replacing one liberal justice with another.  A conservative might someday win back the White House, but any future Republican president will be playing defense with his or her Supreme Court selections.  With his second Supreme Court pick — and, to be clear, he will almost certainly have more — the President is on the way to having had more influence over the Court than any President since Reagan, and perhaps even Roosevelt.  Future elections might undo some of the President's policies, but his more liberal views about the Constitution, the powers of the national government, and the role of unelected federal judges, are now being locked in securely."