Bryan Fischer
Elana Kagan: a dangerous judicial activist
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By Bryan Fischer
June 24, 2010

Next week, the Senate Judiciary Committee will hold hearings on President Obama's nominee to the United States Supreme Court, current Solicitor General Elana Kagan.

Americans who are concerned about the rule of law and a return to constitutional standards in our jurisprudence have every reason to by assertively, aggressively and unapologetically opposed to her nomination.

We share these reservations with 42% of the American people, according to Rasmussen Reports, while just 35% think she should be confirmed. The level of opposition is up nine points from the week the president announced her nomination and is at the highest level to date.

In other words, the more the American people find out about Ms. Kagan, the less they like her.

Americans are alarmed at her lack of actual legal experience. She served just two years in private practice, and never argued a case in federal court until she became President Obama's Solicitor General. She has argued a grand total of six cases in court.

Here are just some of the many other reasons her nomination ought to opposed, as Liberty Counsel has documented:

  • She is a judicial activist by philosophy, who agrees with former Justice Thurgood Marshall that the Constitution given to us by the Framers was "defective" and that it contained "outdated notions of liberty, justice and equality."

  • In her master's thesis, Kagan wrote that "judges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends. Such activity is not necessarily wrong or invalid."

  • Her "judicial hero" is former Israeli justice Aharon Barak, who said that judges should "adapt the law to life's changing needs" and said a judge "may give a statute a new meaning...[t]he statute remains as it was, but its meaning changes, because the court has given it a new meaning that suits new social needs." The language of the Framers will obviously have no meaning for a Justice Kagan. If the Constitution does not mean what the Framers intended it to mean, it can mean anything you want. At that point, we cease to be a government of laws and become a government of men.

  • She is anti-military and pro-homosexual. While dean of the Harvard Law School, she kicked military recruiters off campus, in defiance of a federal law which had been upheld by the Supreme Court on a unanimous vote. She said she "abhorred" the military's ban on open homosexual service, and called it a "moral injustice of the first order." It is folly to consider adding to the nation's highest court an individual who proudly broke the law because it didn't jibe with her personal prejudices and biases. Good luck getting equal justice in her courtroom.

  • She believes in the supremacy of international law over the Constitution. While dean at Harvard Law, she dropped the required course in the Constitution and replaced it with a required course on international law. Yes, you read that right. You can now graduate from Harvard Law without being required to study our own Constitution, thanks to Ms. Kagan. But you won't get out of there without knowing more than you need to know about international law.

  • She is pro-abortion and anti-life. She has contributed financially to pro-abortion groups, and believes that abortions should be taxpayer funded. When she served in the Clinton administration, she helped the president find reasons to veto a ban on partial-birth abortions.

  • She believes that the government may ban political pamphlets and books during an election season, in violation of the First Amendment's free speech protections.

  • She is anti-Second Amendment. She wrote once that she is "not sympathetic" to the claim that individuals have the right to keep and bear arms under the Constitution.

  • She is pro-Muslim. At the same time she kicked military recruiters off campus, she allowed Saudi Arabia to recruit lawyers for work on Shariah-Compliant Finance.

  • She is anti-capitalist and pro-socialist, once writing glowingly of "socialism's greatness."

  • Former Supreme Court nominee Robert Bork said that if Kagan is confirmed "you will have a court that is much more to the left than we have today." That's a cheery thought.

As Sen. Jeff Sessions, has pointed out, she is selectively outraged at institutions which frown on homosexual behavior. At the very same time she was booting the military off campus because of its opposition to homosexual service, Saudi Arabia was in the process of donating $20 million to Harvard University to establish a center for the study of Sharia law. Ms. Kagan raised not a peep of protest, despite the fact the Saudis cut the heads off homosexuals while our military just denies them a uniform.

Bottom line: Elana Kagan is not qualified to be a city attorney in Parma, Idaho let alone a sitting justice on the United States Supreme Court. Let's hope enough senators catch on in time to prevent this judicial catastrophe.

© Bryan Fischer

 

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