Elena Kagan — Obama’s Political Operative on the Supreme Court?

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June 25, 2010

Confirmation hearings for Obama Supreme Court pick Elena Kagan are set to begin on Monday and the debate over her nomination is about to hit fever pitch. According to the Associated Press:


Opponents and backers of President Barack Obama’s choice to replace retiring Justice John Paul Stevens stepped up their efforts with Senate Judiciary Committee hearings on Kagan’s less than a week away. Republicans are increasingly under pressure from conservative activists to oppose Kagan or block a vote to confirm her, while the White House is working with Democrats to dispel doubts that could mar her so-far smooth path to a lifetime spot on the nation’s highest court.

Of course, we already know Kagan is a liberal activist with a thin resume, little legal experience and no judicial experience. But what other doubts might the White House need dispel?
Well, let’s start with documents released by the Department of Defense that clearly show Kagan’s unlawful mistreatment of our nation’s military while she served as Dean of Harvard Law School. Sen. Jeff Sessions (R-AL) called attention to these outrageous documents in a statement earlier this week.

As you may recall, Kagan kicked military recruiters off the campus of Harvard Law School, allegedly in opposition to the military’s “don’t ask, don’t tell” policy (a policy crafted by her former boss President Bill Clinton). The Obama White House has claimed from the beginning that Kagan followed the law and did what she could to accommodate the U.S. military. But the documents tell a different story.

According to Sessions: “The documents show that Ms. Kagan reversed Harvard’s policy, without basis or notice, in order to block the access of recruiters—not to accommodate them. They show that she defied federal law, forcing the Department of Defense use [sic] its legal authority to bring Harvard into compliance. They show that she did not ensure access to military careers, but that the Office of Career Services prevented the military from even posting a job opening. They show that she sanctioned a demeaning, second-class entry system for the military that the Department of Defense made clear was intolerable.”

And then there’s this related piece from columnist and president of the Center for Security Policy Frank Gaffney. Gaffney notes that Harvard Law School accepted $20 million from members of the Saudi Royal Family to establish a Center for Islamic Studies and Sharia Law while Kagan served as Dean.

For those who practice it, Sharia, known as the “path” in Arabic, is a set of controversial laws that guide all aspects of Muslim life. Some interpretations have been used to justify cruel punishments such as amputation, female genital mutilation and stoning. Homosexuality, by the way, is punishable by death or flogging under Sharia law, which is an interesting contradiction to note regarding Ms. Kagan. While she was busy fighting for gay rights in the military she was openly courting a brand of radical Muslim law that condones the execution of homosexuals.

There were other “doubts” regarding Ms. Kagan raised in the press this week. Say, for example, the video that surfaced this week showing Kagan in 2006 praising retired Judge Aharon Barak during a ceremony at Harvard when she was Dean of the Harvard Law School. Judge Barak, described by Judge Robert Bork as perhaps “the worst judge on the planet,” was a radical activist during his time on the court.

In fact, here’s what he wrote in his 2006 book The Judge in a Democracy: "a good judge is a judge who, within the bounds of legitimate possibilities, makes law that, more than other law he is authorized to make, best bridges the gap between law and society and best protects the constitution and its values.” He also says that judges should go "beyond actually deciding the dispute."

Translation: A good judge legislates from the bench. Kagan described Barak as her “judicial hero.”

The AP reported this week that Kagan is taking part in grueling mock hearings where she is asked the “hard questions in the nastiest conceivable way, over and over and over.” No doubt she will be well rehearsed by the time she takes her spot on center stage.

Of course, the AP also notes the irony of Kagan’s rigorous preparation: “Kagan herself has written scathingly of the confirmation hearings, calling them a charade in which nominees work hard to evade important questions. Now she is probably practicing effective ways to do precisely that.”

Let’s hope the Senate Judiciary Committee doesn’t let her get away with it. Justice Sotomayor ran from her liberal record during her confirmation hearings and pretended to be as conservative as Justice Scalia. Sure enough, her first term on the High Court shows that she is one of its most liberal, activist members.

I trust President Obama to have picked another nominee who meets his lawless standards for judicial nominations — which means nominating judges who are results-oriented, are biased in favor of liberal causes or favored groups, and substitute their personal opinions and political views for the plain words of the U.S. Constitution.

With looming constitutional battles ranging from Obamacare to illegal immigration, the United States Senate should ensure that only a nominee who will strictly interpret the U.S. Constitution is approved. There’s no reason to believe that the inexperienced, political lawyer Ms. Kagan meets this standard.

To be clear: Ms. Kagan is Obama’s political plant for the Supreme Court. I’ve called her Obama’s Supreme Court “czar.” Senators ought to demand better. Judicial Watch, as part of our Judicial Nominations Project, which monitors judicial nominations and opposes judicial activism, was pleased to present earlier this week an educational panel that was an excellent conservative overview on the Kagan confirmation battle. If you missed it, it is available here — http://www.youtube.com/user/JudicialWatch.

In the meantime, I encourage you to contact members of the Senate Judiciary Committee to express any views you have on Kagan’s nomination. A list of the members is here.