From The Heritage Foundation:

The Senate Judiciary Committee will begin its hearing today on [Obama's] nomination of Elena Kagan to be the next Associate Justice of the Supreme Court of the United States. Kagan is no stranger to the confirmation process; in fact, she devoted one of her few academic writings entirely to the subject,writing:

The Senate’s consideration of a nominee, and particularly the Senate’s confirmation hearings, ought to focus on substantive issues; the Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct.

Kagan’s law review article specifically criticized recent confirmation hearings as “a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis.” Instead, Kagan advocated that senators insist “on seeing how theory works in practice by evoking a nominee’s comments on particular issues – involving privacy rights, free speech, race and gender discrimination, and so forth – that the Court regularly faces.” Kagan even suggested that nominees with thin records (and Kagan’s record can definitely be considered “thin,” since she has no judicial experience, few academic writings, and virtually no litigation experience prior to her current post as Solicitor General), should face a heavier burden when answering senators’ questions. So what “substantive issues” should senators press Kagan on to see how her “theory works in practice”?

The First Amendment: As Solicitor General, Kagan asserted before the Supreme Court that government could ban political pamphlets. The core of the First Amendment is the protection of political speech. So not only does such a position therefore violate common sense, but its logic could be used to ban Thomas Paine’s Common Sense or other landmark political treatises, particularly if their authors were so foolish as to publish them through a non-profit corporation. Does Kagan believe that the First Amendment permits the government to ban pamphlets and books?

The Second Amendment: As a law clerk, Elena Kagan recommended that the Supreme Court not even hear a claim that the District of Columbia’s complete ban on handguns violates the Second Amendment — a claim that recently succeeded at the Court. The sole reasoning that she provided for denying the claim: “I’m not sympathetic.” Kagan was also intimately involved in gun-control policies in the Clinton White House, working to reclassify certain hunting rifles as assault weapons and to ban their importation. In Kagan’s notes obtained from the Clinton Library, she even lumped the National Rifle Association together with the KKK as “bad guy org[anization]s.” Does Kagan stand by her recommendation to reject access to the Supreme Court to someone denied his or her Second Amendment rights by a complete ban on handguns? Considering that she has argued that the government can ban political pamphlets, does she also believe that the Constitution permits the government to ban all guns, as well?

Social Issues vs. National Security: As dean of Harvard Law School, Kagan restricted military recruiters’ access to campus. Kagan’s actions, which were based upon a court of appeals decision that did not even apply to Harvard, violated the Solomon Amendment. It was only after the Department of Defense threatened to cut off Harvard’s funding that Kagan granted military recruiters customary access to campus. What legal authority did Kagan have to disregard the Solomon Amendment and restrict the access of military recruiters to campus? Does Kagan think it was appropriate to limit the ability of the military to recruit on campus at a time when the United States is fighting two wars?

Foreign Law vs. the U.S. Constitution: In a letter to Senator Arlen Specter (D–PA) during her Solicitor General confirmation hearings, Kagan wrote, “There are some circumstances in which it may be proper for judges to consider foreign law sources in ruling on constitutional questions,” such as the Eighth Amendment. This position seems consistent with Kagan’s approach as dean of Harvard Law School, where she led the effort to change the first-year curricula to mandate the study of international law while maintaining constitutional law as an elective course. This practice of looking at foreign law to change U.S. law raises grave questions about U.S. sovereignty and is frequently used selectively by justices who cite to practices that favor their desired outcomes.As a justice, would Kagan cite to foreign law in interpreting the U.S. Constitution?

When President Barack Obama outlined his criteria for appointing a replacement for retiring-Justice David Souter, he said he would seek: “someone who understands justice and isn’t about some abstract legal theory or footnote in a case book, it is also about how our laws affect the daily realities of people’s lives … I view that quality of empathy of understanding and identifying what people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.” Kagan has similarly written that it is the Supreme Court’s mission to “show a special solicitude for the despised and the disadvantaged.” At a time when this White House has shown an utter contempt for the rule of law in favor of their own political allies (e.g. Chrysler bailout, oil drilling moratorium, BP shakedown, etc.) it is now more important than ever that senators ensure Kagan is capable of putting aside her personal preferences, applying the law as it is written, and dispensing justice without regard to the parties before her.

Side Note: Robert Alt, Senior Legal Fellow and Deputy Director, Center for Legal and Judicial Studies at The Heritage Foundation, will testify before the Senate Judiciary Committee this week regarding Kagan’s nomination hearing. For more information, visit OrderInTheCourt.org.

Quick Hits:

• Sen. Robert Byrd (D-WV), the longest serving U.S. senator, died this morning at a Fairfax, Va., hospital at the age of 92.
• At a campaign stop outside of Milwaukee, Wis., on Friday, Vice President Joe Biden called the manager of a custard shop a “smartass” after the manager of the store asked him to lower taxes.
• At the G-20 summit in Toronto, President Obama urged other nations to increase their deficit spending while other nations pledged to halve their deficits.
• According to Gallup, conservatives not only maintained their historic gains from 2009 but added to it, with the percentage of Americans now describing themselves as either very conservative or conservative rising to 42% in the first half of 2010.
• Using the House Federal Aviation Administration reauthorization bill this week, UPS and its big labor allies in Congress will attempt to raise FedEx’s labor costs by making it easier for unions to organize FedEx employees.

More from The Heritage Foundation:

As the confirmation hearings of Elena Kagan got underway at 12:30, the ranking member of the Senate Judiciary Committee, Jeff Sessions (R-AL), lost no time getting to the heart of the concerns that are raised by Elena Kagan’s nomination by President Obama to the Supreme Court:

Ms. Kagan has less real legal experience of any nominee in at least fifty years. It’s not just that she has never been a judge. She has barely practiced law, and not with the intensity and duration from which real understanding occurs. Ms. Kagan has never tried a case before a jury. She argued her first appellate case just nine months ago. While academia certainly has value, there is no substitute for being in the harness of the law, handling real cases over a period of years…

What Ms. Kagan’s public record does reveal, however, is a more extensive background in policy and politics, mixed with law. Ms. Kagan’s college thesis on socialism in New York seems to bemoan socialism’s demise there. In her master’s thesis, she affirmed the activist tendencies of the Earl Warren Court, but complained that they could have done a better job of justifying their activism…

During her White House years, the nominee was the central figure in the Clinton-Gore effort to restrict gun rights—and, as the dramatic 5-4 decision today in McDonald shows, the personal right of every American to own a gun hangs by a single vote…

Ms. Kagan was also the point person for the Clinton Administration’s efforts to block Congressional restrictions on partial-birth abortions. Indeed, documents show she was perhaps the key person who convinced President Clinton to change his mind, from supporting to opposing legislation that would have banned that horrible procedure…

During her time as Dean of Harvard, Ms. Kagan reversed Harvard’s existing policy and kicked the military out of the recruiting office in violation of federal law. Her actions punished the military and demeaned our soldiers as they were courageously fighting two wars overseas…

In her first appellate argument, Ms. Kagan told the Court that the speech and press guarantees in the First Amendment would allow the federal government to ban the publication of pamphlets discussing political issues before an election. I would remind my colleagues that the American Revolution was—in no small part—spurred on by just such a political pamphlet, Thomas Paine’s “Common Sense.” To suggest that the government now has the power to suppress that kind of speech is breathtaking.

Also as Solicitor General, Ms. Kagan approved the filing of a brief before the Supreme Court asking that it strike down provisions of the Legal Arizona Worker’s Act, which suspends or revokes business licenses of corporations which knowingly hiring illegal immigrants, even though Federal law expressly prohibits such hiring. She did this even after the liberal 9th Circuit had upheld the law…

She clerked for Judge Mikva and Justice Marshall, each a well-known liberal activist judge. And she has called Israeli Judge Aharon Barak—who has been described as the most activist judge in the world—her hero. These judges don’t deny activism; they advocate it. And they openly oppose the idea of a judge as a neutral umpire…

In the wake of one of the largest expansions of government power in history, many Americans are worried about Washington’s disregard for limits on its power…Even today, President Obama advocates a judicial philosophy that calls on judges to base their decisions on empathy and their “broader vision of what America should be.” He suggests that his nominee shares that view…Americans want a judge that will be a check on government overreach, not a rubber stamp.

Today’s decision on the Second Amendment by the Supreme Court in McDonald v. Chicago, in which Justice Sotomayor joined with the minority in trying to deny the Second Amendment rights of the American people in direct contradiction to her sworn testimony at her confirmation hearing, shows how important the Kagan hearing is. At her own confirmation hearing, Sotomayor disingenuously claimed that she understood “how important the right to bear arms is to many, many Americans.” Senator Leahy, the Chairman of the Senate Judiciary, then said that he could “not see how any fair observer could regard her testimony as hostile to the Second Amendment personal right to bear arms, a right she has embraced and recognizes.” Unfortunately, Sotomayor appears to have forgotten how important the right is that she supposedly “embraced and recognizes” in the short time she has been on the Court and decided it was not quite fundamental enough to be a vital component of American liberty..

But this is just one example of why intensely questioning Kagan on all of these issues is vitally important to preserving this nation as a republic and protecting the liberties of its people. Confirming an activist, liberal judge who believes that the Supreme Court should act as super-legislature that imposes its view of social policy on the country would be an unmitigated disaster that would further imperil the Constitution and the rule of law.

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