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  • The Kagan Confirmation: Day Two Summary

    Day two of the Elena Kagan confirmation hearings saw a little less posturing than yesterday’s opening salvos by Senators bent on diverting attention from Kagan’s record by excoriating the current Supreme Court and falsely characterizing it as a bunch of “conservative activists.” Unfortunately, there was the same lack of meaningful information regarding Kagan’s qualifications to be given a lifetime appointment to the U.S. Supreme Court. Kagan dodged probing questions on a wide range of important legal issues – the value of precedent, the role of the Court, the identification of fundamental rights, and the interpretation of key constitutional provisions.

    From the outset, Kagan ran away from every attempt to characterize her political and philosophical views. Senators Sessions (R-AL), Hatch (R-UT), Kyl (R-AZ), Grassley (R-IA), and Graham (R-SC) pressed Kagan on the nature of her political ideology and approach to legal analysis. She generally refused to admit any specific views and even went so far as to claim that she did not know what the term “progressive” meant.

    Despite these efforts to avoid categorization, Kagan clearly portrayed herself as a disciple of the liberal legal orthodoxy. At times she predictably embraced the value of precedent and rejected the notion of “judicial activism,” a term which of course is toxic because the American people understand that activists violate the law and Constitution to implement their own social and ideological agendas. She nevertheless made it clear that she would not consider herself bound by the original meaning or the text of the Constitution. In response to questioning by Senator Leahy (D-VT) and Senator Cornyn (R-TX), she also said that the Constitution can be changed by individual cases in order to adapt it to changing circumstances and changing times. The Article V amendment process is unique just insofar is it is the “only way actually to amend the text of the Constitution.”

    Further, Kagan said that she would look to a “variety of sources” to interpret the Constitution. Kagan said the sources to which she would look would vary from case to case. Senator Schumer (D-NY) got her to agree to a line of questioning in which he argued that looking to international law to interpret the Constitution is no different than using the Oxford English Dictionary to find the definition of a term used in the Constitution.

    A significant portion of today’s hearing also focused on Kagan’s decision to deny military recruiters equal access to Harvard Law School facilities during her tenure as Dean. The Solicitor General obscured the truth on the military recruiting issue. She refused to admit that she knowingly violated the demands of federal law during her time in Cambridge. Instead, she argued that it was more important to uphold Harvard’s non-discrimination policy than to follow clear law that the Supreme Court, which she hopes to join, upheld in a unanimous decision.

    Meaningful questioning of the nominee also occurred on the issue of First Amendment rights, specifically as they relate to political speech, campaign finance law, and the Court’s decision in Citizens United. Senator Hatch and others on the Judiciary Committee pressed hard on the validity of the Citizens United opinion and the liberals’ repeated mischaracterizations of the case and its free speech implications. Specifically, Senator Hatch (R-UT) simply asked Kagan to admit that the decision did nothing to change the law prohibiting campaign contributions from foreign corporations. Kagan refused to concede even that simple point.

    Discussion of the Court’s recent Second Amendment decisions protecting the right to keep and bear arms in every state of the nation also sparked serious debate. Conservative and liberal Senators alike asked Kagan to offer her opinions on the Heller and McDonald opinions regarding the fundamental nature of gun rights in America. Despite classifying the decisions as binding precedent for lower courts across the country, the Solicitor General refused to get into a serious debate about their broader implications for the definition of fundamental constitutional rights.

    Senator Grassley specifically asked Kagan to clarify her understanding of such rights in the context of the Second Amendment. Kagan refused to agree that the right to keep and bear arms is an inalienable right – or to accept Grassley’s invitation to agree with the Declaration of Independence that there are such things as inalienable rights that government does not give, and thus cannot take away.

    Hopefully on day three of the nomination hearings tomorrow these issues of paramount importance will continue to be raised and pressed by the Senate Judiciary Committee members. Let us also hope that Solicitor General Kagan actually begins to provide the public with some understanding of where she stands on each of the legal and constitutional issues that bear directly on her fitness to serve for life in the Supreme Court.

    Co-authored by Ben Keane.

    Posted in Legal [slideshow_deploy]

    20 Responses to The Kagan Confirmation: Day Two Summary

    1. SHARON LOUGH says:


    2. LibertyAtStake, Alex says:

      She doesn't know what the term "progressive" means?! More proof progressives will say or do anything to achieve their political aims. More proof she is a danger to the republic and must not be confirmed. Only about 150 days or so to run out the clock …

      [For a light hearted take on our present peril]

    3. Pingback: Townhall.com Staff: Kagan May Well Become “The Liberal Scalia” | MorallyRight.org

    4. Don C. Hayward Monum says:

      Kagan saying that she didn't know what the term "progressive" meant is identical to the head of a Mafia family saying that he didn't know what the term Mafia meant.

      "We have met the enemy and he is us."

      The cancer of Marxisim is upon the highest levels of government.

      God will help the Republic only if we help ourselves.

    5. G-Man, Chesapeake, V says:

      The Senate confirms this radical appointee at risk of their office. Senators, you are no lover of freedom if you vote in favor Elena Kagan. I can't wait until November, and I can't wait until 2012 when I can vote against Senator Webb; he has failed Virginians, and so has Warner


      Those who can make you believe absurdities, can make you commit atrocities.

    6. Bill White says:

      Ms. Kagan is clearly a Progressive, and she acknowledged as much. You seem to ignore any of her comments that refute your pre-determined idea of who and what she is. Her exchanges with Senators Graham and Hatch made it clear that she is a Democrat and a Progressive in her personal beliefs, as Justices Alito, Roberts, Thomas and Scalia are clearly Republicans and Conservatives. You label her an "activist," while not recognizing that the conservative wing of the Court is actively trying to bind the Constitution to horse and buggy rules and interpretations that have been rejected by the people and by history.

      The Heritage Foundation uses the term "Liberal" in a pejorative sense. I would like to use the term "Reactionary" whenever you would say "Conservative." It would be a more honest description of what the HF stands for.

    7. Dr. White, PA says:

      I find Kagan's claim that she didn't know what the term "progressive" meant to be specious, and quite telling. My experience of liberal progressives is that they truly believe their way is best, and that gives them the right to impose their values on others. The ends justify the means, so it is ok to obfuscate, mislead and mis-characterize your position in order to achieve your goal. If Miss Kagan truly believes that our Constitution is outmoded, and a socialist or communist system of government would be a kinder, fairer, more empathic, and more "modern" choice, why doesn't she clearly state that and back her assertions? I am curious to know which "horse and buggy" aspects of our Constitution the liberals and progressives object to. The First and Second Amendments were specifically referenced in the hearing. Are they too old-fashioned for our modern way of life? I wonder if those who object so strenuously to our Constitution have actually read and studied it themselves so they would personally know what is in it. I suspect far too many are content to absorb other people's interpretations and opinions about our founding documents without going through the effort of educating themselves.

    8. West Texan says:

      Kagan showed her judicial weakness when she essentially stated that being a Supreme Court Justice meant supporting the constituion while listening to what people want. She started out fine but isn't the latter a political concern? Sorry Kagan, following popular polls is for Congress and the President. Your job, if confirmed, is to uphold the spirit and inherent protections prescribed by the U.S. Constitution. Nothing more.

    9. Pingback: Larwyn’s Linx: Elena Kagan — Lawyer by Day, Obstetrician by Night | MorallyRight.org

    10. Val Karie, Seattle says:

      Health Care and Supreme Court nominations are going the same route as Health Care: you have to swear in the candidate (pass the bill) to see how they'll defend the constitution (see what's in it).

      This isn't a nomination process of meaningful debate, but more like 3-card monte!

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    14. Drew Page, IL says:

      The Constitution was our first 'Contract with America'. It was set to writing, as most contracts are, for the protection of the people the government was to govern. It provided for the three branches of government as a system of checks and balances among those branches. It delineated the rights and responsibilities of those branches and provided that those rights not expressly granted to the federal government would be retained by the several states and the people. Now who in their right mind wouldn't want something that important put in writing?

      I find the above comment by Bill White, "The conservative wing of the Court is actively trying to bind the Constitution to horse and buggy rules and interpretations that have been rejected by the people and by history." to be both insulting and irresponsible. Just exactly what "horse and buggy rules" rejected by the people and history are you talking about? When you can tell us what "horse and buggy" rules you are talking about you can then tell us who exactly the people are who rejected them and show us where history has rejected them.

      I for one feel a whole lot more comfortable living under a written Constitution where my rights as a citizen are clearly defined and the rights of the government are clearly limited. I don't want to appear in a court of law one day arguing that I had the right to express my opinion only to have some prosecutor or judge say, "Oh yeah, where does it say that?"

    15. Billie says:

      I don't like government bias. She clearly exemplifies it.

    16. Steve, Los Angeles says:

      What's the point, Heritage Foundation? She's going to be confirmed, and we already knew she was unqualified the minute Obama endorsed her.

      It irritates me when you guys spend so much time bitching about something you have no power to overturn (or do you know something we don't? If you do then tell us! Give us some hope). How about getting something going that will really stop the Obama takeover, not just more hand wringing about how awful this all is.

      The information you provide is top notch, but the plan of action is glaringly missing.

      I am tired of all the bitching, what is your plan to stop this?

    17. mikesigns, salinas,c says:

      There is really no point in having these hearings because the gutless Republican politicians will work to illustrate how incapable and unqualified she is, and then vote for her anyway.As long as they get their 20 minutes of facetime, they will be happy to "get along" with the president and this appointee by forsaking the filibuster and enough of them voting for her to guarantee that we are stuck with this obama clone, long after he has done his damage and skated off. Assuming that there is anything left when he is done.

    18. foxnews.com says:

      Another nail in America's coffn. Her repulsiveness exemplifies the type of human swine the anti-Christ surrounds himself with. Far and away above the law, with no regard to our heritage, this pompous radical, activist will wreak havoc on decisions that we change the course of freedom in America. God help us, and may God lead the charge in the upcoming 2010 Second American Revolution.

    19. TERRENCE...Morristow says:

      Another nail in America's coffin. Her repulsivness exemplifies the kind of human swine the anti-Christ surrounds himself with. Her disgraceful disregard for our constitution, and radical and activist idealogy will ultimately change the course for freedom and justice in America. God help us, and may God lead the charge for the upcoming 2010 Second American Revolution.

    20. ckirkland says:

      How scary is this woman who wants to be seated on the highest court in the land? Will Pres. obama stop at nothing to ruin this country??? Just asking.

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