Over the past several weeks, I have been reviewing the record and testimony of President Obama's Supreme Court nominee, Elena Kagan. On Wednesday, I had the opportunity to sit down with Ms. Kagan and discuss some of my concerns surrounding her views and past statements.
We need to set the highest standards when confirming justices for lifetime appointments to the highest court in the nation. Ms. Kagan certainly has an impressive resume with extensive political and academic credentials, but her record also demonstrates a tendency to insert personal beliefs and lean toward judicial activism.
Protecting the Second Amendment
I have serious concerns about Ms. Kagan's view on the right to bear arms, a basic constitutional right. As a clerk to Justice Thurgood Marshall, Elena Kagan wrote a memorandum indicating she was "not sympathetic" to a Second Amendment challenge of the gun ban in Washington, D.C. Not only was Ms. Kagan's recommendation troubling, but the personal tone she used is even more disturbing. Rather than pointing to text and precedent, rooting her analysis in law, or looking to the Constitution, she chose to insert her personal beliefs saying, "I'm not sympathetic."
Ms. Kagan went on to serve as a key advisor to President Clinton on gun control efforts, where she advocated proposals to increase restrictions. She helped draft an executive order requiring all federal law enforcement officers to install locks on their weapons and another order limiting the importation of certain semiautomatic rifles.
The Supreme Court continues to hear many challenges to state and local gun control laws on the grounds that the laws violate the Second Amendment. The most recent case this year, McDonald v. Chicago, resulted in a 5-4 decision, demonstrating that the personal Second Amendment right of every American hangs by a single vote. I am concerned that Ms. Kagan's beliefs and political activism on gun control would influence the way she judges from the bench.
Kagan's Support of Partial Birth Abortion
Ms. Kagan, having neither served as a judge nor spent any significant time in a courtroom, lacks a judicial record to give us insight into her views on abortion. There are, however, several red flags raised by her actions on this issue during her days in the Clinton White House.
Memos from Ms. Kagan to President Clinton indicate that she believed partial birth abortion is constitutionally protected. Partial birth abortion is a truly reprehensible procedure, and I am disturbed that Ms. Kagan would find the prohibition of this act to be unconstitutional. I believe her views on this issue raise serious questions regarding how she would interpret the Constitution if confirmed to the Supreme Court.
Defying the Law
During her committee hearings, Ms. Kagan was questioned extensively about her record as Dean of Harvard Law School. When meeting with the nominee, I had the opportunity to ask her to clarify the events leading up to her decision to ban military recruiters from the campus. Unfortunately, I found her explanation troubling.
Ms. Kagan inherited a policy of open-access for military recruiters at Harvard but changed that policy in defiance of federal law and at a time when the United States was at war. Fortunately, Dean Kagan's position was rejected 9-0 by the Supreme Court. While she is free to have personal opinions on the military's "Don't Ask Don't Tell" policy, she should not be putting her views above the law of the land. This speaks to the larger question of whether she will interpret the law as written or as she would like it to be.
Kagan Not Right for Supreme Court
In her testimony before the Senate Judiciary Committee, Ms. Kagan acknowledged that it is "difficult to take off the advocate's hat and put on the judge's hat.' I do not have confidence that Ms. Kagan would be able to restrain her personal views and political advocacy from influencing her decisions if she were confirmed to a lifetime position on the Supreme Court. Americans want a justice who will apply the law impartially and without bias. The American people do not want Congress to confirm a nominee to the highest court that would serve as a rubber stamp for this White House or any future administration.
Her political advocacy on gun control and partial birth abortion, her deliberate defiance of the law banning military recruits, and her apparent belief that there is little limit to the federal government's power over the individual rights of Americans are reasons why I will vote against the nomination of Ms. Kagan to the U.S. Supreme Court.