Judging a Supreme Court Nominee: What Senators Should Ask Elena Kagan

Church & State, June 2010 | Go to article overview

Judging a Supreme Court Nominee: What Senators Should Ask Elena Kagan


Supreme Court nominee Elena Kagan's record on church-state separation is thin. It's important, therefore, that the Senate Judiciary Committee flesh things out by asking her some relevant questions.

Nominees to the high court aren't supposed to pre-judge cases; no one expects Kagan to do that. What she can do is answer some questions about her overriding philosophy of how religion and government should interact.

For example, Thomas Jefferson spoke of the importance of a wall of separation between church and state. Some justices, most notably the late William H. Rehnquist, former chief justice, were critical of that metaphor, asserting that the First Amendment erects no such wall.

It would be interesting to know what Kagan thinks about this. Is she more in line with Jefferson or Rehnquist--or is she somewhere in between?

Members of the committee could also ask Kagan about past church-state rulings. Does she agree with the 1962 and '63 rulings that struck down school-sponsored prayer and Bible reading? What does she think of the 1971 case Lemon v. Kurtzman that established a famous test for determining church-state violations? …

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