Elena Kagan Should Be Rejected

Elena Kagan Should Be Rejected
Phyllis Schlafly
6-29-10

Barack Obama revealed his goal for the Supreme Court when he complained on Chicago radio station WBEZ-FM in 2001 that the Earl Warren Court wasn't "radical" enough because "it didn't break free from the essential constraints placed by the Founding Fathers in the Constitution" in order to allow "redistribution of wealth." Now that Obama is president, he has the power to nominate Supreme Court justices who will "break free" from the Constitution and join him in "fundamentally transforming" America.

That's the essence of his choice of Elena Kagan as his second Supreme Court nominee. She never was a judge, and her paper trail is short. But it's long enough to prove that she is a clear and present danger to the Constitution.

When Kagan was dean of Harvard Law School, she presented a guest speaker who is known as the most activist judge in the world: Judge Aharon Barak, formerly president of the Israeli Supreme Court. The polar opposite of the U.S. Constitution, which states that "all legislative powers" are vested in the elected legislative body, Barak has written that a judge should "make" and "create" law, assume "a role in the legislative process," and give statutes "new meaning that suits new social needs."

Barak wrote that a judge "is subject to no authority" except himself, and he "must sometimes depart the confines of his legal system and channel into it fundamental values not yet found in it." Channel? Does he mean he channels in a trance, as Hillary Clinton supposedly channeled discourse with the long deceased Eleanor Roosevelt?

Despite Barak's weirdo writings, or maybe because of them, Kagan called him her "judicial hero." Judge Robert Bork, a man careful with his words, says that Kagan's praise of Barak is "disqualifying in and of itself."

Bork said that Barak "establishes a world record for judicial hubris." Bork wrote that Barak embraces a judicial philosophy that "there is no area of Israeli life that the court may not govern."

During Kagan's confirmation hearing for solicitor general, Sen. Arlen Specter asked her views on using foreign or international law or decisions to interpret our Constitution and laws. She wrote in reply that she approves using "reasonable foreign law arguments."

Au contraire. The U.S. Constitution states that our judges "shall be bound" by "the Constitution, and the laws of the United States which shall be made in pursuance thereof."

Federal law requires all educational institutions receiving federal funds to present an educational program on the U.S. Constitution on every Constitution Day, September 17. Kagan thumbed her nose at Constitution Day 2007 by hiring a transnationalist to the Harvard faculty, Noah Feldman, and featuring him for two days of speeches.

Transnationalists are lawyers who advocate integrating foreign and international law into the interpretation of the U.S. Constitution and laws. In his Harvard Constitution Day address, Feldman urged the "use of international legal materials in constitutional decision-making ... to help actually decide cases," and opined that "international tribunals' rulings must be treated as law."

Kagan's hero is also a transnationalist. In his book "The Judge in a Democracy," he sharply criticizes the U.S. Supreme Court for failing to cite foreign law, and he praises Canada, Australia and Germany for their "enlightened democratic legal systems."

Kagan is particularly inappropriate because this anti-military woman would replace the only veteran on the court, John Paul Stevens. As Harvard Law School dean, Kagan signed a brief asking the Supreme Court to overturn or rewrite the Solomon Amendment, which she called "profoundly wrong."

That popular federal law denies federal funds to colleges that bar military recruiters from the campus. The Supreme Court unanimously rejected Kagan's argument, which proves what an extremist she is.

Kagan demonstrated her feminist extremism when she served as the lead White House strategist advising President Bill Clinton to veto the Partial-Birth Abortion Ban Act. Ten years later, substantially the same act was passed by Congress, signed by President George W. Bush and upheld by the Supreme Court.

Feldman has just published a long New York Times magazine article in which he worries about how the Supreme Court will rule on lawsuits over Obamacare, Obama's takeover of big corporations and the cronyism in stimulus spending. Feldman hopes the Kagan appointment means that "the moment has arrived for progressive constitutional thought" to take over the courts.

The left is counting on Kagan to play a major role in getting the Supreme Court to uphold Obama's transformation of our exceptional private enterprise system to a socialist economy. The New Republic magazine is salivating at the prospect that Kagan will reassert the discredited doctrine of the "living Constitution."

A Rasmussen poll reports that 42 percent of Americans oppose Kagan's confirmation, and only 35 percent favor her. Are senators listening?
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Would Kagan Defer to Foreign Law?
Deborah O'Malley
6-29-10

With Elena Kagan’s confirmation hearings well underway, her approach to foreign law remains an important concern.

In recent years, Supreme Court justices have increasingly looked to the laws of other nations when interpreting the United States Constitution -- a practice detrimental to the American principle of self-government. Senators should vigorously question Kagan to determine whether she too would sacrifice our sovereignty to the whims of foreign opinion, especially selective foreign opinion.

Kagan’s statements so far are troubling. In a letter written to Senator Arlen Specter before her Solicitor General confirmation, she wrote, “There are some circumstances in which it may be proper for judges to consider foreign law sources in ruling on constitutional questions.” As an example, she discussed the Eighth Amendment “cruel and unusual punishment” line of cases.

But she did not clarify when it might be appropriate to look to foreign law and when it wouldn’t be. In fact, neither has the Supreme Court. The justices who cite it have been curiously selective in their use of it and have never even hinted at a principle behind their cafeteria counter approach.

Yet it’s clear from their jurisprudence that the principle is a political one: some justices look beyond our borders only when doing so would bolster their desired result.

The Court’s habit of looking to world opinion when interpreting the Eighth Amendment’s prohibition on cruel and unusual punishment is a troubling example of things to come. In 2005, the Court used foreign standards as one of three factors leading to its conclusion that executing a 17-year old murderer amounts to cruel and unusual punishment. Foreign laws were considered in the Court’s misguided evaluation of the “evolving standards of decency that mark the progress of a maturing society.” Contemporary foreign laws were apparently more relevant than the Clause’s text or original public meaning in America, to which the Court did not dedicate even a sentence.

The Court looked to foreign law again -- albeit to a lesser degree -- in an Eighth Amendment case this term to determine that juvenile non-homicidal offenders cannot receive life without parole sentences. Before the Supreme Court imbued the Eighth Amendment with foreign law, both of these purely domestic criminal justice issues were decided by the people of the United States through the democratic process.

It’s interesting that the judges find foreign law to be indispensable in the Eighth Amendment criminal law context, yet completely irrelevant in other areas of criminal law. For example, our Exclusionary Rule, the mandatory omission of illegally obtained evidence in court, has almost no parallel in the rest of the world. Yet the justices did not see fit to consider this foreign consensus when they ruled that all states must enforce the Rule. If the Court was “guided” to abolish the death penalty for juveniles based in part on foreign law, then why not the Exclusionary Rule? The answer is that justices don’t turn to foreign law for “guidance;” they turn to it for justification.

Justice Stephen Breyer, a regular defender of the practice of citing foreign law, says it’s particularly useful to do so when considering human rights issues. In fact, “advancing human rights” is often the siren song of other justices who defend the practice. Yet these justices do not always put this supposed principle into practice.

Take the issue of abortion -- a human rights issue to those on both sides of the debate. Justice Antonin Scalia has pointed out that the Court said “not a whisper” about foreign law in its recent abortion cases. Perhaps this is because the United States is one of only six countries that have embraced a right to abortion on demand at any point prior to viability.

At the heart of this practice is an unsettling disregard for the bedrock American principles of separation of powers and self-government. The people’s representatives may look to foreign countries while crafting laws in order to see how other nations have addressed similar policy problems. Judges, on the other hand, shouldn’t try to devise solutions for such problems. Their role is to apply the laws and hold them accountable to the Constitution.

In order to determine whether Elena Kagan might be the next justice to wield the tool of foreign law, senators must dedicate considerable efforts to probing her views on this most important issue. Their duty to uphold and defend the Constitution requires nothing less.