What Did We Learn About Elena Kagan?

What did we learn about Elena Kagan following her confirmation hearings to be a Supreme Court Justice? Not very much! But there were some subtle clues that suggest Kagan will indeed be a very liberal judge. Kagan, like all nominees, was very crafty at failing to answer questions about her ideologies and law opinions. This is very worrisome because there was already very little information about Kagan’s law opinions since she had no prior experience as a judge. Thus, we knew very little about Kagan before the confirmation hearings started and really nothing more after the hearings finished.

Kagan faced some intense questioning about her thesis that had two misguided premises. First, it stated her concerns over the decline of socialism in the United States and secondly, she claimed to value the art of judicial activism. Kagan was quick to state that she wrote this a long time ago, before she entered law school, and it should be thrown in the trash. Kagan was just as quick to dismiss her law review article entitled “Confirmation Messes”. In this article Kagan rightfully bashed the Supreme Court confirmation process as being a complete farce. She claimed the process did not allow for the Senate, or the public, to attain any pertinent information about nominees legal beliefs. Kagan was also quick to distance herself from her proclaimed hero, Ahoron Barak, an Israeli Supreme Court Justice. Barak was famous for being an activist judge who based his decisions on shaping society through his ideology and not the law. In fact, Kagan also repudiated Obama’s belief that empathy has a place in the law.

As Solicitor General for the Obama administration it was Kagan’s job to defend White House policy in front of the Supreme Court. However, Kagan was quick to point out that even though she defended White House policy, it did not automatically suggest that she favored these views.

When faced with questions about past Supreme Court decisions she proclaimed that all rulings were correct and were therefore, the legal precedent. She did not disagree with one decision. Is that even possible? She said the only way precedent can be overturned is if new information becomes available, but failed to give any examples.

Kagan faced her stiffest questioning about her decision to ban military recruiters from Harvard University when she was the Dean of the Harvard Law School. Kagan’s actions were overturned by the Supreme Court unanimously 8-0. Despite this, Kagan insisted during the hearing that military recruiters had sufficient access to Harvard University and students. Kagan’s ban on the military was obviously initiated because of her belief that the Don’t Ask Don’t Tell (DADT) law was discriminating against homosexuals serving in the military. Still, Kagan would not suggest that any law, including DADT, should be overturned.

All of this said, Kagan made some subtle admissions to show her true liberal ideology. She said that the Declaration of Independence (DOI) has no role in the judgment of cases in the Supreme Court. However, she agreed with all prior Supreme Court precedent that used external documents and even scientific studies. So why can’t the DOI (arguably the most important document in our history) be cited to decide cases? Furthermore, Kagan did not rule out citing Foreign Laws as a basis to rule on cases, which should have no relevance to the Constitution. Moreover, Kagan clearly did not have a good grasp about originalism and what it meant, meaning her ideology would be more of an objectivist ideology favored by retired Justice David Souter. Most importantly, when asked about a hypothetical case where every American would be forced to eat so many servings of fruit and vegetables per day, Kagan never said this was unconstitutional. Kagan said it would be a “dumb law” but “courts would be wrong to strike down laws simply because they are senseless”. The fact that Kagan did not say this was unconstitutional clearly shows she has a very broad view of the commerce clause and the role (size) of government in our lives. We also know from previous writings that she is a proponent of abortion rights and believes in constraining our second amendment rights.

Elections have consequences. Obama’s victory gives him the right to select Supreme Court Justices. Thus, we have to live with the lifetime consequences of having both Kagan and Sotomayor deciding Supreme Court cases using their political ideology and not the law.