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Live Blogging the Kagan Confirmation: Day Four

Posted By Brian Walsh On July 1, 2010 @ 5:50 pm In Legal | Comments Disabled

7:30 Alt on Kagan’s Activism and Willingness to Interpret the Constitution based on Foreign Law
Robert Alt entered into the record a written statement in support of his testimony before the Senate Judiciary Committee this evening. Alt’s statement explains why Kagan’s activism calls into question her fitness for a lifetime appointment to the highest court in the nation.

The key question for any nominee is how will they approach the judicial process—what is their judicial philosophy. There is a reason that critics of the Roberts Court have chosen the nomenclature of activism, for that term embodies precisely how a judge should not carry out their duties. What a judge should do is interpret the Constitution and the law as it is written, not as they would have written it, nor according to how foreign nations would interpret it. To do so, a judge must seek to apply the text according to its plain and original meaning. This is not easy. There are sometimes real disagreements. But originalism and textualism are truest to the enacted law, and these interpretive methodologies reduce the risk that the judge will simply use the interpretive process as pretext for asserting preferred policy biases as law.

With this as a framework, Alt describes why Kagan’s expressed willingness to rely on foreign law to guide her interpretation of federal law and the U.S. Constitution illustrates her activism.

[T]here are a number of issues in Kagan’s record and hearings that are cause for concern. In the course of the hearings, Kagan has suggested that she would be open to consulting foreign law and virtually any other sources in interpreting text. In addition to seemingly embracing the Supreme Court’s illegitimate and regrettable ‘world opinion poll’ usage of foreign law in the Eighth Amendment context, this suggests that Kagan has rejected textual and originalist approaches in favor of more pragmatic ones. While pragmatism may be fine in the legislative sphere, in the judicial context it is often a source of activism.

6:47 – Alt Exposes Lies Regarding Citizens United – Supreme Court’s Recent Campaign Finance Decision

In Kagan’s confirmation hearing, liberal senators have routinely decried the current Supreme Court for its supposedly “activist” decision this January in Citizens United.  Supposedly, Citizens United reversed “long-standing precedent.”  Several liberal senators have claimed [1] that this precedent is “100 years old.”

Robert Alt set the record straight that the oldest case that Citizens United overturned was decided in 1990 – Austin v. Michigan State Chamber of Commerce.  “Congress implemented a statutory ban on direct corporate contributions to federal candidates in 1907,” Alt says, but this was “a ban that Citizens United did not disturb.”

Further, the 1990 Austin decision that the Court overturned this January “was truly an outlier that conflicted with the Court’s jurisprudence on independent expenditures.”  Austin itself was an activist decision.  In fact, Alt says, “Austin satisfied the very definition of judicial activism – it ignored the plain language of the First Amendment.”  None of the Court’s decisions before Austin and none that have followed it are consistent with Austin’s holding or rationale.

It should come as no surprise that the Court overruled such an opinion (which in any event was only 20 years old).  This is especially true seeing that Elena Kagan and one of her deputies in the U.S. Solicitor General’s office chillingly argued that the campaign finance restriction that the Court overturned permitted the federal government to ban books and pamphlets.

6:05 PM – Alt Corrects Senators’ Distortions of Recent Supreme Court Decisions

Heritage’s Robert Alt just led off his testimony by addressing the attempt by the liberal members of the Senate Judiciary Committee to refashion the hearing on Kagan’s nomination into a referendum on the current Supreme Court, led by Chief Justice Roberts. As Alt put it in his written statement to the Committee, the “story of a conservative, activist, pro-corporatist Roberts Court may sound compelling at first blush, particularly with its repetition and regrettable distortion of the cases involved, but it is a story – and a fictional one at that.

Not only has this tack distracted attention from Kagan’s record, Alt says that the liberal’s story “applies a flawed definition of judicial activism, a deliberately skewed sample of the business decisions of the Roberts Court, and misrepresentations of key decisions of the Roberts Court.” In his testimony, Alt is correcting Senate liberals’ systematic distortions of specific cases, especially Citizens United v. FEC (2010) and Ledbetter v. Goodyear Tire & Rubber Co. (2009).

5:35 PM – Heritage’s Robert Alt Now Testifying at Kagan Confirmation Hearing

Robert Alt, Senior Legal Fellow and Deputy Director of the Center for Legal and Judicial Studies at Heritage, is about to testify before the Senate Judiciary Committee on the Kagan nomination. Alt has written and lectured extensively on issues of constitutional law, with particular emphasis on civil rights law, election law, separation of powers, antiterrorism law, and the law of war. In addition to his Heritage duties, Alt is a Fellow in Legal and International Affairs at the John M. Ashbrook Center for Public Affairs at Ashland University in Ohio, where he has taught courses on constitutional law and on political parties and interest groups.

5:24 PM – Veterans Testifying before Senate Assail Kagan for Discriminating against Military Recruiters in Time of War

Three military veterans just delivered forceful testimony condemning Elena Kagan’s violation of federal law in denying full and customary access to military recruiters. The witnesses were Captain Flagg Youngblood, U.S. Army (ret.), Captain Pete Hegseth, Army National Guard, and Colonel Thomas N. Moe, U.S. Air Force (ret.).

Youngblood made it much clearer than Kagan had in her confusing testimony about her actions as dean of Harvard Law School that the federal law in question – the Solomon Amendment – required Harvard to provide access to military recruiters that was equal to the “most favorable access” afforded non-military recruiters. As dean of Harvard Law School, Kagan flatly excluded the military from accessing the law school’s Office of Career Services.

Captain Hegseth, who served two tours of duty in Iraq, said that while he appreciated Kagan’s expressions of support for the military as she seeks a seat on the U.S. Supreme Court, her “actions speak louder than words.” Having seen first-hand the enemy, Hegseth was justifiably indignant in his testimony that Kagan chose to undermine military recruitment during a time of war.


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URL to article: http://blog.heritage.org/2010/07/01/live-blogging-the-kagan-confirmation-day-four/

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[1] have claimed: http://specter.senate.gov/public/index.cfm?FuseAction=NewsRoom.NewsReleases&ContentRecord_id=843c38c2-e2ef-675e-d656-b6030065828d http://feingold.senate.gov/record.cfm?id=319214

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