Day 1: Kagan not a Constitutionalist, she just plays one on TV
Dear JCN Members and Supporters:
The Senate Judiciary Committee just concluded the first day of Elena Kagan's hearings to replace Justice Stevens on the Supreme Court. Our summary of Day 1: She may not be a Constitutionalist, but she sure plays one on TV.
As we expected, Kagan followed in Justice Sotomayor's footsteps and disguised herself as the next John Roberts, and Democratic Senators did their best to help her hide from her record of extreme activism on abortion, 2nd Amendment rights, and the scope of government power. According to Kagan, "what the Supreme Court does is to safeguard the rule of law, through a commitment to even-handedness, principle, and restraint." In the immortal words of The Who, "Don't get fooled again."
We have seen this television show before. Just last summer, Justice Sotomayor starred in the hearings where she stated that "the task of a judge is not to make the law – it is to apply the law." But today she proved that we simply can't trust what President Obama's nominees say during confirmation hearings. The Supreme Court ended its term with several high-profile 5-4 decisions: McDonald vs. Chicago (the Second Amendment applies to state and local governments), Christian Legal Society v. Martinez (right of law school organizations to restrict membership to students who embrace core beliefs), and Free Enterprise Fund v. PCAOB (Public Company Accounting Oversight Board appointment/removal process is unconstitutional).
In each of the cases, Justice Sotomayor sided with Justices Stevens, Ginsburg and Breyer. That is noteworthy on its own, but it is especially noteworthy in light of the fact that the White House and its allies bent over backwards to sell Sotomayor as the next John Roberts. According to their story, Sotomayor was a restrained and non-ideological jurist who would faithfully apply the law and the original meaning of the Constitution. During her hearings, nominee-Sotomayor did her best to perpetuate “The Big Lie.”
Two excerpts from Sotomayor's testimony are illustrative.
On the use of foreign law, Justice Sotomayor stated "I will not use foreign law to interpret the Constitution or American statutes. I will use American law, constitutional law to interpret those laws, except in the situations where American law directs a court.'' But, as Senator Coburn has done a nice job of highlighting, that commitment did not stop her from siding with the liberal Justices in Graham v. Florida, citing foreign law to hold that it is unconstitutional to sentence a juvenile offender to life without parole for a non-homicidal crime.
On the Second Amendment, Justice Sotomayor took the absurd step of pointing out that "one of my godchildren is a member of the NRA. And I have friends who hunt. I understand the individual right fully that the Supreme Court recognized in Heller." According to Sotomayor, "I understand that how important the right to bear arms is to many, many Americans." But, as the McDonald decision demonstrates, she didn't understand it to be protected by the Constitution.
So what does this mean for the Kagan hearings? Expect a confirmation conversion, and don't buy it.
Senator Kyl deserves a round of applause from supporters of the Constitution because he didn't buy and he made it clear. Senator Kyl used his opening statement to unleash a torrent of criticisms against Kagan. He belittled her experience, making the accurate point that other SCOTUS nominees without judicial experience have had "actual" legal experience, as contrasted with Kagan's two years doing document review at a big law firm. He questioned her choice of judicial heroes, Aharon Barak and Thurgood Marshall, and accused her of embracing their activist philosophies. And he accused her of being precisely the sort of rubber stamp Obama was seeking for his domestic policy agenda.
I hope the MSM was watching. The White House has successfully convinced them that this nomination has created little traction for Republicans and Kagan opponents - that Kagan has successfully flown under the radar - because the Washingon Post hasn't had a daily item about some Macaca moment. But that's hard to square with the facts. As recent polls have shown, support for Kagan has dropped since her announcement. How do they explain that? Or how do they explain Senator Kyl's aggressive opening statement -- bearing in mind that he has been a proponent of deference to Presidential prerogatives?
Whether Kagan's boosters in the press like it, Kagan's decision to kick the military off the HLS campus has received widespread notice. The fact that she has no judicial experience and mostly political experience has penetrated. And the argument that she could be Obama's rubber stamp makes sense to the ordinary person. Does that mean her nomination will be rejected? Of course not. But this is not a moment of triumph for White House spinmeisters - their candidate would lose an election. It is impossible to listen to statements by Senators Hatch and Kyl, for instance, and not conclude that it is only because the deck is stacked 58 (for now) to 41 that Kagan has a prayer.
We must keep up the pressure.
PLEASE CALL YOUR SENATOR OR AND MEMBERS OF THE JUDICIARY COMMITTEE TODAY BY CLICKING HERE. TELL THEM TO AGGRESSIVELY QUESTION AND EXPOSE KAGAN’S AGENDA. REMIND THEM, THE EYES OF THE GRASSROOTS ARE ON YOU SENATOR. TELL SENATORS YOU EXPECT THEM TO ASK THE TOUGH QUESTIONS ABOUT HER PHILOSOPHY AND WHETHER SHE WILL FOLLOW JUDICIAL RESTRAINT OR BE ANOTHER RUBBER STAMP FOR OBAMA’S AGENDA.
Sincerely,
Gary Marx
Executive Director
Judicial Crisis Network
P.S. To read more about how Elena Kagan will be an inexperienced rubber stamp for Obama’s Agenda click here
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