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.”
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?
What is perhaps most disturbing about Kagan’s decision to kick the military out of Harvard is the fact that she was in direct violation of federal law. Kagan could have complied with that law, even as she fought for what she believed to be the right legal principles through the courts, but she chose instead to put personal preference above the law. That attitude could be devastating for our freedoms if she were to be confirmed to a lifetime appointment to the Supreme Court.
6. Do you believe it is okay for an officer of the court to support the passage of a law he believes to be unconstitutional?
Elena Kagan advised President Bill Clinton to support “compromise” language on the partial birth abortion bill that she believed to be unconstitutional. At the time, Kagan was worried about the President’s “credibility,” the threat of a veto override, and even the fact that pro-abortion groups would “go crazy.” But what about her oath as an attorney to support the Constitution?
5. Would you agree that if confirmed you should recuse yourself from cases having to do with restrictions on a woman’s “right” to choose?
Again, putting personal policy preferences above legal precedent, Kagan has publicly and repeatedly criticized Rust v. Sullivan, a Supreme Court decision that upheld regulations that ensured Americans’ tax dollars did not support programs that promote or counsel for abortion. She even argued the regulations amounted to the subsidization of “anti-abortion” speech.
Her hostility towards those who believe life begins at conception was very evident in her article for the Daily Princetonian, where she called them the “avengers of ‘innocent life.’”
4. Does the government have the power to ban political books?
As Solicitor General, Kagan argued that it does, although they probably would not use it. In oral arguments for Citiziens United v. FEC, Kagan affirmed that political pamphlets could run afoul of the law as examples of “classic electioneering.” Chief Justice Roberts ultimately said Kagan’s view would even “empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations.”3. Can international law or norms help us determine the constitutionality of a statute passed by our legislature?
As dean at Harvard, Kagan made International law a required first-year course for every law student, while ignoring Constitutional law as a requirement altogether. And as Solicitor General, she said she believed she should use international law in arguing domestic cases to persuade those justices that look at international law for guidance. Will she be looking at international law to decide domestic cases at the Supreme Court?
2. Do you agree with President Obama that the law will direct 95 percent of cases, but then there are those really difficult ones that must be decided “on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy”?
President Obama voted against Chief Justice John Roberts based on this logic. He knew Judge Roberts was absolutely qualified. Here is what he said:
It is absolutely clear to me that Judge Roberts truly loves the law. He couldn’t have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court — adherence to precedence, a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system. All of these characteristics make me want to vote for Judge Roberts. [Emphasis mine].
Yet Obama voted against him because he would not go outside the law and use his empathy to steer the law. Here is the exchange between Senator Jon Kyl (R-Arizona) and then-Supreme Court nominee Sonia Sotomayor on the issue:
Sen. Kyl: Let me ask you about what the president said — and I talked about it in my opening statement — whether you agree with him. He used two different analogies. He talked once about the 25 miles — the first 25 miles of a 26-mile marathon. And then he also said, in 95 percent of the cases, the law will give you the answer, and the last five percent legal process will not lead you to the rule of decision. The critical ingredient in those cases is supplied by what is in the judge’s heart. Do you agree with him that the law only takes you the first 25 miles of the marathon and that that last mile has to be decided by what’s in the judge’s heart?
Sotomayor: No, sir. That’s — I don’t — I wouldn’t approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can’t rely on what’s in their heart. They don’t determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it’s not the heart that compels conclusions in cases. It’s the law. The judge applies the law to the facts before that judge. …
Kyl: Have you always been able to have a legal basis for the decisions that you have rendered and not have to rely upon some extra-legal concept, such as empathy or some other concept other than a legal interpretation or precedent?
Sotomayor: Exactly, sir. We apply law to facts. We don’t apply feelings to facts.
1. Do you believe it is wrong for judges to promote a social agenda through the law?
Kagan wrote in her Oxford thesis:
As men and as participants in American life, judges will have opinions, prejudices, values. Perhaps most important, judges will have goals. And because this is so, judges will often try to mold and steer the law in order to promote certain ethical values and achieve certain societal ends. Such activity is not necessarily wrong or invalid. The law, after all, is a human instrument — an instrument designed to meet men’s needs. [Emphasis mine].
This view is dangerous and should be disqualifying. Let’s hope this becomes a major issue during the hearings so we can engage in a vigorous debate about the proper role of a judge.