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The Kagan Hearings: Grill, Baby, Grill


| Posted 5/14/10 at 10:40 AM

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Barack Obama wanted to be a transformative president. One way he is doing so is by the kinds of appointments he has been making.

So the nomination of Elena Kagan as a justice of the Supreme Court bears close scrutiny. At age 50, she could serve on the court for decades, leaving a legacy for good or for ill for generations to come.

Kagan, whom Obama nominated May 10, would if confirmed be the first Supreme Court justice in 40 years to come to the high court without prior judicial experience. That’s not necessarily a bad thing, though the lack of a “paper trail” makes it a little more difficult to know how such a nominee would vote in cases that come before the court.

We do know from other evidence, though, that the solicitor general and former Harvard Law School dean is pro-abortion and sympathetic to the homosexual-rights cause.

Americans have a right to know how she would decide on issues that impact the future of people’s lives, especially unborn lives.

Issues that may come before the court over the course of the coming decades include same-sex “marriage,” and Kagan seems sympathetic to that cause. It’s foreseeable that the challenge to California’s Prop. 8, which restricts marriage to one man and one woman, could soon make its way to the Supreme Court.

As solicitor general, Kagan defended the Defense of Marriage Act. But that tells us little, since it is the job of the solicitor general to defend American law before the Supreme Court.

She also said, during her confirmation hearings for that position, that she didn’t believe there was a constitutional right to same-sex “marriage.” She later clarified what she meant.

“Constitutional rights are a product of constitutional text as interpreted by the courts and understood by the nation’s citizenry and its elected representatives,” she wrote to Sen. Arlen Specter, R-Pa., March 18, 2009.

As National Review legal blogger Ed Whelan pointed out, “Kagan was saying only that the courts haven’t yet invented a federal constitutional right to same-sex ‘marriage.’”

Of course, earlier in her career, she was under no obligation to defend U.S. law, so it’s revealing that she took the audacious step of banning military recruiters from the campus of Harvard Law because she found the Clinton-era policy of “don’t ask, don’t tell” in the U.S. military discriminatory. In a letter to students in 2003, she called the policy “a moral injustice of the first order.”

On the right to life, there is plenty of cause for concern. Pro-abortion organizations Planned Parenthood and Emily’s List have endorsed Kagan, and she has contributed financially to the pro-abortion National Partnership for Women and Families. Kagan “listed membership in” the partnership in a questionnaire she submitted in connection with her 1999 nomination to the U.S. Court of Appeals for the District of Columbia Circuit, a nomination that ended when the Senate Judiciary Committee’s Republican chairman Orrin Hatch scheduled no hearing.

Kagan has criticized federal regulations that prohibited recipients of Title X family-planning funds, taxpayer dollars, from counseling women to get abortions — arguing they amounted to the subsidization of “anti-abortion” speech.

As several states’ attorneys general have brought lawsuits against Obamacare, it’s worth wondering how a Justice Kagan might vote on the crucial issue of taxpayers being forced to subsidize immoral practices such as abortion.

Kagan is used to being grilled. Now, instead of testifying before the Supreme Court, she’ll go before the Senate Judiciary Committee. But will that panel ask the questions you want them to ask?

This editorial will appear in the May 23 print edition of the Register. To subscribe, please call (800) 421-3230.