In Day Three questioning of Supreme Court nominee Elena Kagan, conservative senators continued to press for clear, forthright answers to resolve the serious questions surrounding Kagan’s unlawful policy on military recruiting at Harvard Law School and her views on the reach of federal power to regulate details of American life, the constitutionality of state bans on partial-birth abortions, and the validity of recent Court precedent on the First and Second Amendments.
After a round of obscurantist answers on Day Two, Senators Sessions, Hatch, Grassley, Kyl, Graham, Cornyn, and Coburn labored to elicit direct answers from Kagan on her actual views and her past words and deeds. While doing so has proven quite difficult, conservative Senators have established key points that should disturb those who believe that Supreme Court nominees should demonstrate an unequivocal commitment to historic American constitutionalism and the rule of law:
1. Kagan can offer no plausible justification for her decision as dean of Harvard Law School to violate federal law by refusing to provide equal on-campus access to military recruiters, as required by the Solomon Amendment.
2. Kagan is unwilling to proscribe or even comment on what would represent appropriate limits on federal power under the Constitution’s Commerce Clause. In her view, the Constitution authorizes Congress to enact a federal law requiring every American to “eat three fruits and three vegetables each day.”
3. Kagan seems unwilling to comment on the reasonableness of the Citizens United (2010) opinion or dispute liberal mischaracterizations of the decision. She has refused to correct Senate liberals repeated misstatements that the recent decision “overturned 100 years of precedent.”
4. Kagan can offer no assurances that an individual’s right to bear arms is a fundamental and inalienable right independent of the Constitution and the Court’s Second Amendment decisions in Heller (2008) and McDonald (2010). Indeed, Kagan has at least twice refused to state that she agrees with Thomas Jefferson and the Declaration of Independence that all persons are “endowed by their Creator with certain unalienable rights.”
5. Kagan can provide no believable explanation of her role as a political operative in the White House in changing the official opinion of the American College of Obstetricians and Gynecologists (ACOG) on partial-birth abortion. ACOG initially opined that “in the vast majority of cases, selection of the partial birth procedure is not necessary to avert serious adverse consequences to a woman’s health.” After Kagan, a political appointee in the Clinton White House, got a hold of ACOG’s initial policy and expressed her view in writing that the opinion would be “disastrous,” ACOG changed its final policy to use the exact language that Kagan drafted: “An intact D&X [the medical term for the partial-birth abortion procedure], however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.”
From her decision to violate military recruiting law at Harvard, to her manipulation of a medical body’s official opinion on partial-birth abortion while serving in the Clinton White House, Kagan has continued her pattern of claiming nothing she has done or said in the past is what it obviously appears to be.
Co-authored by Ben Keane.