The Case against Kagan; Radical Obama Nominee Answers to Politics, Not the Law

The Washington Times (Washington, DC), June 25, 2010 | Go to article overview
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The Case against Kagan; Radical Obama Nominee Answers to Politics, Not the Law


Solicitor General Elena Kagan is too political, too leftist, too inexperienced and too disrespectful towards existing law to be confirmed for the U.S. Supreme Court. As Ms. Kagan's nomination hearings begin on Monday, what we now know about her should disturb fair-minded Americans, and should embolden moderate senators of both parties to avoid rubber-stamping her for a lifetime appointment. The pressure should be most intense not on Republicans, but on Democrats who claim moderation and yet try to explain away Ms. Kagan's history of leftist proselytizing.

No amount of personal charm on Ms. Kagan's part should obscure her actual record. Here's what we know about this former dean of Harvard Law School:

We know she is remarkably lacking in courtroom experience. Until Ms. Kagan became solicitor general, she not only had never been a judge, but she also had not even argued a single appeals case in her entire career. Her few arguments as solicitor general have been undistinguished. In one, the justices had to remind her that she was to answer their questions, not ask them questions of her own.

We know she deliberately ignored the law while at Harvard, and unfairly besmirched our military in time of war. The facts are simple. A law known as the Solomon Amendment made it illegal to keep military recruiters off of college campuses. An appeals court ruled that the law should be overturned but immediately made its own ruling inapplicable until it could be reviewed by the Supreme Court. Then-Dean Kagan barred the recruiters from campus anyway, thus flouting the law. She called the military's Don't Ask, Don't Tell rule on homosexual practices a moral injustice of the first order, even though she herself had served in the Clinton White House that developed the Don't Ask, Don't Tell rule in the first place. Then, when she supported a challenge to the Solomon Amendment, the Supreme Court ruled against her position 8-0 - an overwhelming rejection of her anti-military stance.

Somebody who openly flouts the law should not be one of the law's ultimate arbiters.

We know she cut corners in order to preserve partial-birth abortions. Vast majorities of the American public oppose partial-birth abortion, which involves crushing the skull of a partially born baby and which the late Sen. Daniel Patrick Moynihan characterized as, for all intents and purposes, open infanticide. Yet when serving as a legal adviser to former President Bill Clinton, Ms. Kagan deliberately withheld from the president a finding by the American College of Obstetricians and Gynecologists that partial-birth abortion is virtually never the least risky, let alone the 'necessary,' approach. As accurately summarized by the National Right to Life Committee, the result was this: Ms. Kagan played a key role in keeping the brutal partial-birth abortion method legal for an additional decade.

We know she is willing to undercut First Amendment free speech for political purposes. Ms. Kagan argued before the Supreme Court that the law should be read to allow the government to prohibit the publication of political pamphlets. In a nation stirred to its own founding by political pamphlets such as Common Sense and The Federalist Papers, this is an extremely disturbing position. Ms. Kagan also has written of the benefits of redistribution of expression, and has written that speech rights are to be dol[ed] out as a favor from government rather than being pre-existing rights that government cannot take away.

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The Case against Kagan; Radical Obama Nominee Answers to Politics, Not the Law


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