Stop Elena Kagan

Steven Mosher
and Colin Mason
PRI Weekly Briefing
29 June 2010
Vol. 12 / No. 17
Reproduced with Permission

The evening news cycle continues to be dominated by the Gulf oil spill and, more recently, by the firing of General McChrystal. But long after the war in Afghanistan has ground to a halt, and the clean-up of the Gulf Coast is complete, President Obama's latest Supreme Court nominee, Elena Kagan, may still be legislating from the bench. She is, after all, only 50 years old. If confirmed, she stands a good chance of outlasting all of the currently serving justices.

So, please America, pay attention to her confirmation hearings, which begin this week.

Like her sponsor, President Barack Hussein Obama, Kagan has left little in the way of a paper trail. Her judicial record is nonexistent - she has never served on the bench - and her position on most issues is murky. What we do know is this: Elena Kagan is bad - very bad - on the Life issues.

How do we know this? Because Kagan served President Clinton in two senior policy advisory roles - and was given specific responsibility for the abortion issue. In these roles, she was instrumental in blocking pro-life legislation. She consistently took an extremist position on this and related issues, and Clinton frequently took her advice.

According to an extensive, well-researched memo by Americans United for Life (AUL), Kagan "consistently promoted anti-life positions that at times extended beyond what President Clinton was inclined to do." In fact, AUL says, Kagan was instrumental in Clinton's opposition to the Partial-Birth Abortion Ban of 1996.She claimed that a ban on "pre-viability" abortions would be unconstitutional. Clinton, as a result of her influence, vetoed the bill.

Even more damning is AUL's finding that "Kagan later advised the President to support a phony late-term abortion 'ban' to give 'cover for pro-choice Senators' who did not want to support a real partial-birth abortion ban." Such actions are more befitting a political operative, not a Supreme Court nominee.

Kagan manifested this kind of extremism on other issues as well. Her response to a federal ban on physician-assisted suicide, for example, was that such a ban would be a "fairly terrible idea."

Everyone concerned about the rule of law should be particularly taken aback by her adulation of former Israeli Supreme Court Judge Aharon Barak. Kagan called Barak her "hero", effusing that "he is the judge who has best advanced democracy, human rights, the rule of law, and justice." In fact, Barak's self-proclaimed judicial theory undermined democracy and the rule of law, since he believed that a judge's job is not to apply existing laws to specific circumstances, but to give the law "a new meaning, a dynamic meaning." He was, in short, no impartial arbiter of the law. His American acolyte is cut from the same cloth.

From the evidence, it seems obvious that Kagan does not believe in the rule of law, or even in democratic rule, but in the rule of judges who "interpret" laws according to their own left-of-center prejudices, and then use clever but fallacious reasoning to defend writing their own biases into their decisions.

She would not be just an "activist judge," as bad as that is. She would be a judicial dictator, usurping the role of the elected legislature, ignoring our traditions, and spurning constitutional limits, all in an effort to enforce her own leftwing, anti-life views on the rest of us.

Her confirmation would be a disaster for the American experiment in representative government and for all Americans, past, present and future, both born and unborn. Her nomination must be opposed.

Contact your senator and urge him or her not to support the confirmation of Elena Kagan.