Kagan in the Spotlight

Supreme Court nominee Elena Kagan has never been a judge — and lacks a paper trail — but her statements and decisions in other capacities give pro-lifers pause.

WASHINGTON — Supreme Court nominee Elena Kagan may provide activists with a vote to create a constitutional right to same-sex “marriage,” expand abortion rights and restrict religion’s role in public life.

The Senate Judiciary Committee is scheduled to begin hearings June 28 on her nomination by President Obama to replace retiring Supreme Court Justice John Paul Stevens. The Democrat-controlled Senate will likely confirm her.

Uncertainty has arisen about her interpretations of the U.S. Constitution because she has never served as a judge and lacks a trail of rulings to examine.

However, indications from her role as solicitor general for Obama and previous roles in the Clinton administration and as dean of Harvard Law School raise concern among some groups.

Americans United for Life and other pro-life groups have highlighted Kagan’s repeated public criticism of federal regulations that prohibited recipients of Title X family-planning funds from referring or counseling women for abortions, which she argued amounted to the subsidization of “anti-abortion” speech.

Richard Thompson, president and chief counsel for the Thomas More Law Center, echoed concerns that Kagan would support expanding abortion and highlighted her endorsement by the Planned Parenthood Federation of America as an indication of the nominee’s views.

Robert Destro, a professor of constitutional law at The Catholic University of America’s Columbus School of Law, said that Obama administration officials would have thoroughly explored Kagan’s views on abortion before offering her the nomination because that area is so important to Obama.

“President Obama would not nominate someone who is not pro-choice,” Destro said. “He’s said as much.”

Social-policy controversies likely to come before a future Supreme Court include laws related to homosexual rights regarding marriage, adoption and military service.

Kagan took on a leading role in the issue when she defended Harvard Law School’s ban on equal access for military recruiters while she was dean. The school’s ban was leveled in response to the “don’t ask, don’t tell” policy that bars homosexuals from openly serving in the military.

Religious Liberty Issues

Kagan justified the school’s recruiter ban — which ran counter to a federal law requiring access as a condition for receiving federal funding — on the basis that a sexual orientation-based ban on government service was “a moral injustice of the first order,” according to a memo she sent at the time to faculty and students.

Kagan’s critics view those actions as indicative of someone who will support the high court vastly expanding homosexual rights.

“As Christians and Catholics, we should be very concerned about those two major issues,” Thompson said, referring to future Supreme Court action on homosexual rights and abortion.

One area where Kagan may differ somewhat from Stevens is on the participation of religious groups in government programs. Stevens is seen by many legal experts as a proponent of extreme separation of church and state, while Kagan’s time as a legal adviser to Clinton indicates greater flexibility.

For instance, she recommended that the Clinton administration not challenge a provision of the 1996 welfare overhaul which clarified that churches and religious groups could receive contracts and vouchers to participate in welfare and other social-service programs without changing their religious nature.

“So that would put her to the right of Justice Stevens, who was against basically all aid programs” involving public funding for religious organization, said Thomas Berg, professor of law and associate dean at the University of St. Thomas School of Law in Minneapolis. “On religious liberty issues, you could not do any worse than Justice Stevens.”

The confluence of homosexual rights and religious liberty also appears likely to trigger future Supreme Court cases.

For instance, legal scholars cite the growing number of Christian ministers who have been jailed in Europe for preaching that homosexual actions are sinful. In the United States, an early phase of the religious and sexual orientation conflict is illustrated by a case before the Supreme Court in which a student arm of the Christian Legal Society is challenging the policy of the University of California’s Hastings School of Law that requires any officially recognized group to admit any student who wants to join.

The student legal group contends in Christian Legal Society v. Martinez that requiring it to allow homosexual students and nonbelievers into its leadership would be a renunciation of its core beliefs, which the school counters violates its inclusion policy.

“On the face of it, it’s a ridiculous argument,” Destro said. “NARAL certainly wouldn’t allow a pro-lifer to be president of NARAL.”

Instead, the rule is likely designed to drive off campus conservative groups that conflict with the political beliefs of liberal school administrators, he suggested. 

Activist Instincts Questioned

Kagan’s nomination is the latest to highlight Obama’s controversial approach to selecting jurists and predicting how they are likely to rule in future cases. When offering his previous Supreme Court nominee, Justice Sonia Sotomayor, the president cited her “empathy” for minorities and low-income Americans as a key qualification. In nominating Kagan, Obama said her confirmation would create “a court that would be more inclusive, more representative, more reflective of us as a people than ever before.”

Critics counter that such a focus on politically correct goals is inappropriate and could justify activist rulings that create rights and privileges based on minority status and economic need at the cost of the Constitution’s guarantee of equal protection under the law.

“Our Founding Fathers intended the court to serve as a neutral arbiter of disputes and to defend the public from the overreach of a distant ruling class in our nation’s capital,” said Sen. Jeff Sessions, R-Ala., a member of the Judiciary Committee, in a May 10 statement on Kagan. “When judges instead impose their own political and social views from the bench — as President Obama’s empathy standard would permit — they undermine democratic government and threaten individual liberties. To protect these important institutions, and to restore the proper check on government overreach, we must ensure that any individual nominated to the court is deeply committed to the words of the Constitution.”

It’s a criticism that others echo.

“The more serious concern is this notion that the president has that you are supposed to let your sense of what’s right govern the outcome,” instead of simply examining whether laws it reviews conform to the limits of the Constitution, said Destro.

Despite these concerns, the Senate is likely to confirm Kagan because she generally mirrors the views of her predecessor and Democrats have a nearly filibuster-proof majority. Moderate Republicans would not support a filibuster unless highly controversial evidence comes to light, Thompson said.

Destro challenged Republicans to unearth Kagan’s judicial philosophy by using the confirmation process to ask her how historic Supreme Court rulings comported with her approach to interpreting the Constitution.

Said Destro, “You could find out in about 10 minutes where she’s at on virtually anything without ever asking directly about it.”

Rich Daly writes from Washington.