Mr. Chairman, after a thorough review of her record and Committee testimony and much deliberation, I’ve concluded that I cannot support the nomination of Elena Kagan to be an Associate Justice on the United States Supreme Court.
When determining whether an individual should be confirmed to be a Justice on the Supreme Court, we should look at their impartiality, commitment to the rule of law and legal expertise. In my opinion, judicial experience is not an absolute prerequisite for serving as a judge. However, since Solicitor General Kagan lacks any judicial experience and has extremely limited experience as a practicing attorney, we don’t have any clear substantive evidence to demonstrate her ability to transition from a legal scholar and political operative to a fair and impartial jurist.
Unfortunately, Solicitor General Kagan’s testimony before the Judiciary Committee did not persuade me that she would be able to make this crucial transition. In her testimony, she failed to answer many of the questions posed to her. She was not forthcoming in discussing her views on basic principles of Constitutional law.
This was extremely disappointing, especially since she’d previously taken the position that Supreme Court nominees should be especially forthcoming in their answers on constitutional issues. Candid answers to our questions were essential to ascertain whether she has the appropriate judicial philosophy for the Supreme Court.
Solicitor General Kagan’s record has not been a model of impartiality. In fact, throughout her career, she has shown a strong commitment to a far left ideological belief system. Solicitor General Kagan’s upbringing steeped her in deeply held liberal principles that at one point she stated she had “retained . . . fairly intact to this date.” In addition, while clerking for Justice Marshall, her liberal convictions rather than the law seemed to guide her recommendations. Her Marshall memos clearly indicate a liberal and seemingly outcome-based approach to her legal analysis. In several of her memos, it’s apparent that she had a difficult time separating her deeply held liberal views and political beliefs from the law.
During her tenure at the Clinton White House, she worked on politically volatile issues. For example, Solicitor General Kagan led the fight to keep partial birth abortion legal. Documents show that she inserted her own personal beliefs in the place of science when promoting her own extreme agenda – she re-drafted language for a non-partisan doctor’s group to override scientific findings against partial birth abortion.
In addition, she worked on a number of initiatives to undermine Second Amendment rights. She worked closely with Jose Cerda on the Clinton Administration’s plan to ban guns by “taking the law and bending it as far as we can to capture a whole new class of guns.” For example, after the Supreme Court struck down parts of the Brady handgun law in Printz v. United States, Solicitor General Kagan worked to find legislative and executive branch initiatives to circumvent the Court’s decision to protect Second Amendment rights.
Even in academia, Solicitor General Kagan took positions that were based on her strongly held personal beliefs, rather than an even handed reading of the law. As Dean of Harvard Law School, she actively defied federal law by banning military recruiters from campus while the nation was at war. She interpreted the law in accordance with her own beliefs, not the law as written. The Supreme Court unanimously rejected her legal position on the Solomon Amendment and upheld the military’s policy.
I’m concerned that Solicitor General Kagan will continue to use her personal politics and ideology to drive her legal philosophy if she is confirmed to the Supreme Court, especially since her record shows she has worked to bend the law to fit her political wishes.
For example, with respect to the Second Amendment, at the Committee hearing, Solicitor General Kagan testified that Heller and McDonald were precedent and due all the respect of precedent. However, I worry that if confirmed, her deep set personal beliefs will cause her to overturn this precedent because she does not personally agree with those decisions. I’m concerned not only because of her anti-Second Amendment work during the Clinton Administration, but also in light of her memo in the Sandidge case when she clerked for Justice Marshall. Instead of providing a serious basis for her recommendation to deny cert, her entire legal analysis consisted of one glib sentence: “I am not sympathetic.”
With respect to the Commerce Clause, Solicitor General Kagan was asked whether she believed there are any limits to the power of the federal government over the individual rights of American citizens. Unfortunately, her response did not assure me that, if confirmed, she would ensure that any law Congress creates does not infringe on the Constitutional rights of our citizens. I’m not persuaded that she won’t be a rubberstamp for unconstitutional laws that threaten an individual’s personal freedoms.
With respect to marriage, I’m concerned with Solicitor General Kagan’s ability to disregard her own personal beliefs to defend the Defense of Marriage Act (DOMA). Under her supervision, the United States filed a brief stating that “the Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal.” At the hearing, she refused to say whether this was an appropriate statement to make, considering that it’s the duty of the Solicitor General to vigorously defend the laws of the United States. How are we to believe that she’ll uphold a law as a Supreme Court Justice when she disagrees with that law?
Solicitor General Kagan also stated that a Justice could look to international law to find “good ideas” when interpreting the Constitution and U.S. laws. I’m unaware how international law can help us better understand the Constitution. When we begin to look to international law to interpret our own Constitution, we are at a point where the meaning of the United States Constitution is no longer determined by the American people.
At the hearing, Solicitor General Kagan tried to distance herself from her Oxford Thesis where she endorsed the “mold[ing] and steer[ing]” of the law to implement a judge’s personal political and social agenda on the bench. I’m not convinced that, if confirmed, she’ll actually be able to resist the temptation to do that. Solicitor General Kagan also acknowledged that it’s “difficult to take off the advocate’s hat and put on the judge’s hat.” Because I’m not persuaded that she’ll be able to overcome that difficulty and transition into an unbiased judge, I must vote against her nomination.
