What Kind of Justice Would Kagan Be?

Critique Comes Prior to Senate Hearings

Senate Majority Leader Harry Reid, D-Nev., greets Solicitor General and Supreme Court nominee Elena Kagan at his office on Capitol Hill in Washington.
Senate Majority Leader Harry Reid, D-Nev., greets Solicitor General and Supreme Court nominee Elena Kagan at his office on Capitol Hill in Washington. (photo: CNS photo/Jason Reed. Reuters)

WASHINGTON — As Capitol Hill braces for the Senate confirmation hearing on Elena Kagan, President Obama’s second nominee to the Supreme Court, critics have targeted her admiration for activist jurors, lack of experience on the bench, scant paper trail on key constitutional issues, and politicized stance on abortion and same-sex “marriage.”

Less than a week before the Senate hearings begin on June 28, Judge Robert Bork, the former Yale constitutional scholar whose 1987 nomination to the Supreme Court was blocked by an alliance of liberal groups, Gerard Bradley, a Notre Dame law professor, and William Saunders of Americans United for Life, argued that Kagan’s activist judicial philosophy would have negative consequences for the nation.

During a press conference organized by Americans United for Life, a pro-life legal group based in Washington, D.C., Judge Bork took aim at Kagan’s lack of judicial experience.

Bork suggested that a candidate’s judicial experience helped to moderate problematic legal theories spawned in the hothouse intellectual environment of the nation’s top law schools. The former dean of the Harvard Law School, Kagan was appointed the solicitor general by President Obama and has never served on the bench.

“It’s typical of young lawyers going into constitutional law that they have inflated dreams of what constitutional law can do, what courts can do,” Bork said. “That usually wears off as time passes and they get experience. But Ms. Kagan has not had time to develop a mature philosophy of judging. I would say her admiration for Barak, the Israeli justice, is a prime example. As I’ve said before, Barak might be the least competent judge on the planet.”

In 2006, while serving at her Harvard post, Kagan applauded Aharon Barak — then the chief of Israel’s Supreme Court — as one who “best represents and has best advanced the values of democracy and human rights, of the rule of law and of justice.”

Bork suggested that Kagan’s public support for Barak, during a ceremony at Harvard, was enough to disqualify her as a nominee for the nation’s highest court: “He has the most extravagantly activist record that I know of,” said Bork. “His prescription makes the Warren Court look like a restrained court.”

During the upcoming Senate confirmation hearing, it’s expected that Sen. Jeff Sessions, R-Ala., the senior Republican on the Senate Judiciary Committee, will probe Kagan’s views on a variety of topics and explore their implications for her reading of the U.S. Constitution.

Politicized Interpretation?

Despite Kagan’s popularity at Harvard, her willingness to hire “conservative” scholars at the generally liberal law school, and her limited public record, Bork predicted that she would embrace a politicized interpretation of sensitive constitutional issues that divide the nation. Originalist constitutional scholars contend that judicial activism leads jurors to “legislate from the bench” instead of allowing the democratic process to mediate potentially divisive political issues.

Bill Saunders, the senior vice president of legal affairs and senior counsel of Americans United for Life, echoed Bork’s judgment, and described the nominee as “quite extreme on the abortion issue.”

Saunders expressed concern about Kagan’s admiration for another controversial legal figure: Justice Thurgood Marshall, who consistently resisted restrictions on legal abortion, including the Hyde Amendment that banned federal funding of abortion and parental consent laws for minors seeking abortions.

Kagan clerked for Justice Marshall, and in a 1993 Texas Law Review article, she applauded his interpretation of the constitution as “a thing of glory,” in part because it revealed “a special solicitude for the despised and disadvantaged.”

The nominee’s supporters argue that her remarks reflect an understandable respect for a legal mentor. But Saunders suggested Marshall’s one-time clerk shared his commitment to judicial activism.

Revealing Memos

Pointing to memos issued during Kagan’s service in the Clinton administration, Saunders argued that the documents revealed a politicized interpretation of abortion rights: “Any time a woman wants an abortion, she has a right to an abortion paid for by the state.”

Kagan held several positions in the Clinton administration: associate White House counsel (1995-1996) and deputy assistant to the president for domestic policy and deputy director of the Domestic Policy Council (1997-1999). Recently, some of Kagan’s memos were released to the public, and experts have mined her record for further evidence of her legal views.

Beating back charges that the Clinton-era memos reveal a left-wing ideologue, the White House has characterized Kagan’s role as a politically neutral adviser who provided “legal and policy options that reflected the president’s well-established views.”

However, pro-life advocates have latched onto Kagan’s May 13, 1997, memo dealing with the politically explosive issue of partial-birth abortion. At the time, President Clinton rejected legislation providing an outright ban on the procedure. Kagan advised the president to “endorse the Daschle amendment in order to sustain your credibility on H.R. 1122 [Partial-Birth Abortion Ban Act] and prevent Congress from overriding your veto.”

While some media reports have characterized Kagan’s advice on partial-birth abortion as a “compromise” fashioned by a moderate, Saunders and other pro-life legal experts argue just the opposite: Kagan’s memo outlined a strategy that provided the president with political cover. The Daschle amendment included a variety of exceptions to the ban and was opposed by anti-abortion groups.

Kagan’s lack of experience on the bench and the limited number of academic writings she has published on sensitive topics have made it difficult for pro-life activists to review her opinions. The best solution to this problem, they suggest, is that the candidate provide full disclosure of her constitutional philosophy during the Senate hearings.

In fact, the nominee is already on the record supporting the Bork confirmation hearings as a model for future Senate deliberations. After Bork’s nomination was defeated, subsequent nominees have sharply limited their responses to often hostile Senate interrogations.

Notre Dame’s Bradley suggested that Kagan follow her own advice and return to a more transparent review process. “We feel it’s completely fair play that she should be questioned under oath before the American people on this issue,” he said.

The Senate should carefully review the basis of Kagan’s constitutional arguments dealing with abortion and same-sex “marriage,” said Bradley, “because of her politicized path to the Supreme Court and what we do know of her judicial philosophy.” The Senate should “withhold confirmation,” he contended, if Kagan “fails to provide answers to those questions.”

Ed Whelan, president of the Ethics and Public Policy Center, a Washington, D.C., think tank, and the director of its program The Constitution, the Courts and the Culture, agreed with Bradley, and pointed to Kagan’s 1997 statement: “The Bork hearings were the best thing that happened, ever happened, to constitutional democracy.”

Kagan’s role in preventing the ROTC from recruiting at Harvard Law School — a decision characterized as a response to the military’s “discriminatory” ban on homosexuals from openly serving in the military — has generated considerable debate. Harvard’s policy was ultimately struck down in a 2006 Supreme Court decision. Subsequently, Harvard’s president, Lawrence Summers, reportedly forced the law school to reverse its policy and welcome the military recruiters.

Whelan said he was especially concerned about Kagan’s role in shaping future court decisions dealing with the legalization of same-sex “marriage.” That issue, said Whelan, was likely to reach the court in the next two to four years. “Kagan is very likely to vote to invent a federal constitutional right to same-sex ‘marriage,’ and she may well provide the decisive fifth vote,” said Whelan.

Signaling the likelihood the conservative critique will frame Republican arguments during the upcoming confirmation hearings, Sen. Orrin Hatch, R-Utah, a member of the Senate Judicial Committee, repudiated judicial activism as a violation of the founders’ intentions.

“Rather than being accountable to the people by being subject to the people’s Constitution, activist judges often make the people accountable to them by seeking to control the people’s Constitution,” said Hatch, speaking from the Senate floor, this week.  “My objective in this confirmation process is to find out which kind of Justice Ms. Kagan would be.”

Joan Frawley Desmond writes from Washington.