Mario Diaz

The hearings on the nomination of Elena Kagan to the Supreme Court are set to start on June 28. And although pushing the hearings until after the Fourth of July recess would be the sensible thing to do (since thousands of pages of documents about her have just recently been released, with more still to come), since when can we count on the Senate to do what is sensible or reasonable?

Nevertheless, there is much we already know about Kagan, contrary to the “blank slate” image the media wants to create. So here are the top 10 questions Kagan should be asked at the hearings. Each question is, of course, meant to spark more discussion on Kagan’s judicial philosophy and her view of the proper role of a judge.

10. Can you explain the error in reasoning in your memo to Justice Thurgood Marshall regarding Bowen v. Kendrick, and how can we be sure such a costly mistake will not happen again once you are at the Supreme Court?

In that memo to Justice Marshall, Kagan argued in favor of discrimination against religious groups based on their beliefs. She later recanted that position at her Senate hearings for U.S. Solicitor General, calling it “the dumbest things [she] had ever heard.”

We agree.

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But she must explain her troubling views. Would Kagan herself support someone to sit on the highest court of the land if they had argued for a legal position she considered “the dumbest thing she ever heard”?

9. Do you believe there is room for a judge to recognize a deity in law?

Giving Kagan’s Bowen memo, even if abandoned, senators must explore her views on religious liberty issues. This question should open what promises to be an in-depth discussion on this important issue. From where — or from Whom — do our “inalienable” rights come?

8. Where do you find guidance — or what is your authority — on what is moral, and what role does it play in the law?

As it is now famously known, as dean of the Harvard Law School, Elena Kagan barred military recruiters from campus. In a 2003 e-mail message to students, she said, “I abhor the military’s discriminatory recruitment policy. ... This is a profound wrong — a moral injustice of the first order.”

Kagan took her moral views and turned them into a legal argument in an amicus brief for Rumsfeld v. FAIR, where the U.S. Supreme Court upheld unanimously (8-0) the constitutionality of the Solomon Amendment, completely disagreeing with Kagan’s flawed logic.

7. Is it proper for an officer of the court to violate a law with which she does not agree?


Mario Diaz

Mario Diaz is the Policy Director for Legal Issues at Concerned Women for America.

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