Senator Jon Kyl—who’s one of the most effective members of the Senate—just laid out a devastating case against Elena Kagan.
In addition to all the things we’ve rightly heard so much about—don’t ask don’t tell, military recruiters at Harvard, gun control, and terrorists’ rights—he highlighted that she failed to do her duty as solicitor general when it comes to the Defense of Marriage Act (DOMA).
Kyl did a masterful job of showing that, after she made the case that when a solicitor general gets involved in a case, it must vigorously defend any federal law that is challenged in court, she was fine with the Justice Department (DOJ) disavowing Congress’ justifications for DOMA in court in the ongoing challenge to DOMA. The DOJ brief in court said that the Obama administration regarded DOMA as discriminatory and supported its repeal, and that DOMA’s purported policy justification should not survive even the most deferential and permissive judicial review.
That’s not any type of legal defense. Instead, it’s sabotaging your client’s case.
Kyl then did a fantastic job addressing two other hot-button issues with profound implications across the spectrum of constitutional interpretation—how to interpret the Second Amendment right to bear arms and the limits of federal power under the Commerce Clause. Her take on both of those issues would have terrible applications for all sorts of important issues, including family issues.
And finally, he made the point that Kagan is not qualified under traditional criteria for the Supreme Court. Although we’ve had justices with no prior judicial experience, we’ve never had one who has no judicial experience and only two years total lawyers’ experience.
All in all, a compelling case for opposing Elena Kagan’s confirmation to the Supreme Court. Well done, Senator Kyl.