5 Reasons to Oppose Elena Kagan's Supreme Court Nomination

Kagan's wrong on the military, abortion, terrorists, guns, and liberalism.

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By Ron Bonjean, Thomas Jefferson Street blog

The Supreme Court nominee Elena Kagan's testimony before the Senate Judiciary Committee next week will heat up her confirmation process in the media. Without her lack of judicial experience producing little information about her, there has been a sense among inside-the-beltway pundits that Kagan is on cruise control for Senate confirmation. However, this hearing could gain a lot more attention if she provides any inkling of what her judicial philosophy would be on the Supreme Court.

From what evidence we have so far, here are five reasons why conservatives should rally and oppose the nomination of Elena Kagan:

1. Her Record on the Military. As dean of Harvard Law School, Kagan praised the university’s decision to ban military recruiters from Harvard’s campus over the military’s ban on openly gay service members. “This return to our prior policy will allow [the Office of Career Services] to enforce the law school's policy of nondiscrimination without exception, including to the military services," Kagan wrote. "I am gratified by this result, and I look forward to the time when all law students will have the opportunity to pursue any legal career they desire.” However, the United States Supreme Court ruled unanimously against the decision, rejecting the school’s argument that being forced to allow the recruiters on campus violated their First Amendment rights.

[Check out our editorial cartoons on Elena Kagan's Supreme Court nomination.]

2. Her Record on Abortion. Kagan helped President Clinton successfully navigate through the partial birth abortion debate in the U.S. Senate. Then-Sen. Rick Santorum’s partial birth abortion bill had significant support, so a weak alternative bill was developed by then-Sen. Daschle of South Dakota to peel off Democratic Senators. The Clinton library documents clearly demonstrate that Kagan was urging the president to support the Daschle “alternative,” not because she wanted him to support a middle ground as some in the media/White House have claimed, but specifically according to her memos, “in order to sustain your credibility" on the tougher bill and "prevent Congress from overriding your veto.” Her strategy worked. While Daschle’s amendment failed, 64-36, he was able to secure 36 votes, three more than necessary to block a veto override. Senator Santorum’s legislation passed 64-36 on May 20 and as expected, Clinton vetoed it on October 10, 1997.

3. Her Record on Terrorist Detainees. In a 2005 letter to Sen. Patrick Leahy, Kagan and three other law school deans opposed an amendment to the Defense Authorization Bill by Sen. Lindsey Graham that would have denied federal courts jurisdiction to consider habeas corpus petitions filed by prisoners at Guantanamo Bay. The amendment also would have limited the judicial review of decisions of the Combatant Status Review Tribunals and Military Commissions. Kagan argued that non-citizen detainees must be able to appeal military commission decisions to a civilian court, making the military commissions irrelevant. “As professors of law who serve as deans of American law schools, we believe that immunizing the executive branch from review of its treatment of persons held at the U.S. Naval Base at Guantanamo strikes at the heart of the idea of the rule of law and establishes a precedent we would not want other nations to emulate," Kagan and her colleagues wrote. "Curiously, the Graham Amendment recognizes the need for judicial review of the determination of enemy combatant status, but then purports to bar judicial review of far more momentous commission rulings regarding determinations of guilt and imposition of punishment.” [ See which industries donated the most to Leahy.]

4. Her Record on Guns. In a memorandum Kagan authored during her clerkship for Justice Thurgood Marshall, she counseled against granting review to a case challenging the gun control laws in the District of Columbia under the Second Amendment. According to one report, Kagan wrote that the petitioner’s “sole contention is that the District of Columbia’s firearms statutes violate his constitutional right to ‘keep and bear arms,’” and concluded with the remarkable statement, “I’m not sympathetic.” In addition, National Review recently reported that “in 1996, Kagan apparently tied the NRA to the KKK--yes, the KKK--while debating the Clinton administration’s position on a bill.”

5. Her Record on Liberalism. Writing for the Daily Princetonian, Kagan wrote about "real Democrats" who are "committed to liberal principles and motivated by the ideal of an affirmative and compassionate government." She added: "Where I grew up--on Manhattan's Upper West Side--nobody ever admitted to voting Republican. The real contests for Congress and the state legislatures occurred in early September, when the Democratic primary was held. And the people who won those races and who then took the November elections with some 80 per cent of the vote were real Democrats--not the closet Republicans that one sees so often these days but men and women committed to liberal principles and motivated by the ideal of an affirmative and compassionate government."

  • Check out our editorial cartoons on Elena Kagan's Supreme Court nomination.
  • See which industries give the most to Congress.
  • See a slide show of the members of the Supreme Court.