• The Heritage Network
    • Resize:
    • A
    • A
    • A
  • Donate
  • The Kagan Confirmation: Day Three Summary

    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.

    Posted in Legal [slideshow_deploy]

    11 Responses to The Kagan Confirmation: Day Three Summary

    1. Bannon - Southeast T says:

      Kagan has no concept of what "being an American" means. She is an unflappable Leftist-Socialist. God help us! It is time for this country to divide. Let the Socialist, Liberals, Communist, et al. have there country and let those of us who still believe in America and its' Constitution have ours! Give the Northern cities and states along with California to the Socialists! We will see who survives!

    2. BOB DEBIASE , MARINA says:

      Kagan is not good for America , period . It is about time that Middle America stand up and take a stand against these lawyers that would try and destroy our Constitution . She has no place in the Supreme Court . All of the evidence is before you . Knock her out . Give her a one way ticket back to liberal Harvard .

      Bob DeBiase

      Marina Del Rey Ca

    3. Homer N. Jethro says:

      I hope the conservatives in the confirmation process have the courage of their convictions to filibuster this appointee to the Supreme Court… They have been very weak and vacillating on key issues in the past and this is not time to loose heart! Let me encourage all who read this to call and email their offices, their names are listed in the above article, google will do the rest!

    4. Mike, Wichita Falls says:

      The worst part about the ACOG PBA report is that her political manipulation of it was unknown to the district court whose ruling against Nebraska's PBA ban was based on the assumed scientific purity of it. Even if she never hears an abortion case, which is unlikely, can we the people or even any litigant coming before her count on her integrity on any other matter?

    5. R, Boston says:

      Republicans and any others with a love for our freedoms and the Constitution must block this woman's appointment. For the love of God, I'm begging you to stand!

    6. Lynn Bryant DeSpain says:

      It has been said that more people in America die from bee stings than from lightening. If enough of the questioners are stung by their electorates, perhaps the lightning will be brought down on that abortion attempting to become a seated Supreme Court Judge.

    7. Stephanie says:

      Kagan will be the first bona fide weasel to sit on Supreme Court. The others may be true blue died in the wool liberals, but she has shown by her political operations in the past, her refusal to defend any liberties and her flat out lies and distortions during the hearings that she is a weasel.

    8. Drew Page, IL says:

      Kagan should be rejected because she has no experience as a judge and no written opinions upon which to base a determination of her qualifications. Second, she has been less than honest in her responses to questions and has been very evasive with her questioners. Why?

      Is there a single Republican in the Senate with the guts to filibuster her appointment? Are they afraid if they do filibuster they are going to called racist, sexist, homophoebic, old fashioned, nasty, etc? Well guess what all you republicans in the Senate, the opposition is already calling you that and will continue to do so regardless of how you vote on Kagen.

    9. Richard Vettraino,Ph says:

      I'am afraid that all of the [fuss] questioning of Kagan is useless,she will be appointed to the Supreme Court,because our politicians really do not care or are powerless to stop Kagan's confirmation.Obama will be wielding more power to disregard our Bill of Rights and the Constitution.He truley wants to turn the USA into a Socialist State,like the USSR was once.

    10. Roger C. Fike, Va.Be says:

      I along with those already commenting have come to the conclusion that only the American people who love this country and uphold the Declaration of Indepence and the Constitution of the United States will stop this destruction of our country. Two things must happen, this woman must not be allowed on the Supreme Court, which would make the High Court so progressive and liberal, that it will take 2 generations to recover and we must bring back a check and balances in the government, by electing those in November whether Republican or Democrat who support and defend the rights of all Americans.

    11. Gary Johnson Washing says:

      Elena Kagan, should not be seated on the Supreme Court of the United States of America as she has no jurisprudence, experience her mirrored qualities of being law clerk at Harvard are simple at best and should be stopped before America is tied, bounded and thrown into the trash. Kagan has no right to re-write the constitution of the United States of America has she has given all of us a mirrored look as to how she would be. To me it is too ugly to contemplate.

    Comments are subject to approval and moderation. We remind everyone that The Heritage Foundation promotes a civil society where ideas and debate flourish. Please be respectful of each other and the subjects of any criticism. While we may not always agree on policy, we should all agree that being appropriately informed is everyone's intention visiting this site. Profanity, lewdness, personal attacks, and other forms of incivility will not be tolerated. Please keep your thoughts brief and avoid ALL CAPS. While we respect your first amendment rights, we are obligated to our readers to maintain these standards. Thanks for joining the conversation.

    Big Government Is NOT the Answer

    Your tax dollars are being spent on programs that we really don't need.

    I Agree I Disagree ×

    Get Heritage In Your Inbox — FREE!

    Heritage Foundation e-mails keep you updated on the ongoing policy battles in Washington and around the country.

    ×