The case against Elena Kagan

University of Colorado Law School Professor Paul Campos traces the bizarre ascent of Elena Kagan to the threshold of the Supreme Court. Campos suggests that she was, to borrow the expression from Death of a Salesman, “well thought of,” or at least well enough thought of. See, for example, Campos’s account of Kagan’s relationship with the University of Chicago Law School.
But why? Campos writes “that there is nothing extraordinary about her, other than the extraordinary combination of social privilege and the ability to exploit it that has put her in her current position.” One can infer from Campos’s account that it helps to have supporters on the Harvard faculty, but Kagan’s ascent remains something of a mystery.
I find it hard to get beyond Kagan’s treatment of military recruiters at Harvard Law School. She didn’t follow the law and, as Pete Hegseth explained in the Wall Street Journal, she has advanced a variety of fallacious arguments to support her conduct as dean. Paul Mirengoff aptly commented that Hegseth’s related testimony before the Senate Judiciary Committee “put Kagan to shame.”
I also find it hard to get beyond the fact that the brief Kagan signed when the military recruiters case — Rumsfeld v. FAIR — reached the Supreme Court garnered the vote of exactly zero justices. The argument she advanced was based on the language of the Solomon Amendment, not on some airy constitutional point.
The language of the Solomon Amendment at issue in the case is not difficult; this isn’t an enigmatic statute. Indeed, Kagan’s argument was summarily rejected by the Court. (I disparaged the brief Kagan signed while the case was pending before the Supreme Court in “JAGs not welcome.”)
Republican Senate staff have prepared a one-page summary of some of the leading points in the case against Kagan. Here it is:

Ms. Kagan’s resume for the high court is a troubling combination of legal inexperience and liberal political advocacy. The evidence suggests she will serve not as an objective defender of the Constitution but as a rubberstamp for President Obama’s big government agenda.
• LEGAL INEXPERIENCE: Ms. Kagan has less real legal experience than any nominee in 50 years, spending roughly two years in private practice as a young lawyer and 14 months as Solicitor General.
• POLITICAL OPERATIVE: Ms. Kagan has spent much more time in the practice of politics than the practice of law. By Kagan’s own account, “most of the time I spent in the White House, I did not serve as an attorney; I was instead a policy adviser.”
• LIBERAL VIEWS: From her second-class treatment of the military to her anti-gun record and her support of partial-birth abortion, Ms. Kagan’s documented views are well to the left of most Americans. Her friend / former colleague, Greg Craig, described her as “a progressive in the mold of Obama himself.”
Hostile to Gun Rights: She worked to advance President Clinton’s anti-gun agenda and even appears to have identified the NRA as a “bad” organization, comparing it to the KKK. As a Supreme Court clerk, she casually dismissed a petitioner’s argument that the D.C. handgun ban violated his constitutional rights, saying only, “I’m not sympathetic.” During her testimony, she would go no further than acknowledge that Heller and McDonald are precedent, using language similar to that used by now-Justice Sotomayor, who recently joined an opinion holding that the right to keep and bear arms is not a fundamental right. The NRA opposes Kagan’s confirmation.
Supports Elective Partial Birth Abortion: Memos reveal President Clinton first supported a partial birth abortion ban with a health exception, but Kagan successfully convinced him that the procedure should be widely available, including elective abortions for “non-health related reasons.” She later reviewed and called a “disaster” a draft statement by the American College of Obstetricians and Gynecologists (ACOG) concluding that partial birth abortion was never the only option to save the woman’s life or health. So she provided ACOG with new language, which they adopted, saying that partial birth abortion may be the “best” procedure in certain cases. Yet, Kagan testified that she “at all times” advanced “the President’s views,” not hers, and took no action to influence medical views.
Demeaned and Punished the Military at Harvard: Kagan kicked the military out of the campus recruitment office as our troops risked their lives in two wars overseas. She did so in defiance of federal law, the Solomon Amendment, which requires that the military receive “access…at least equal” to that of other employers. Kagan also participated in an anti-recruiting protest just yards from where officers were meeting with students and wrote a letter to the student body saying she understood how the “military’s presence on campus feels alienating.” Pentagon documents also show that recruiters were “stonewalled,” and that banning them from the recruitment office was akin to “chaining and locking the front door of the law school.” Remarkably, Kagan testified that recruiters had “complete” access to students.
Supports Big Government: At her hearing, Kagan was unable to identify a single limit on federal government power under the commerce clause and could identify no meaningful constitutional restraints on government authority.
Liberal Bias as Solicitor General: Kagan authorized a politically-driven challenge to an Arizona law barring employers from hiring illegal workers, even though it had been unanimously upheld by the 9th Circuit, the most liberal appeals court in the country. She also failed to fulfill her pledge to “vigorously” defend Don’t Ask Don’t Tell, when she refused to challenge an unprecedented 9th Circuit ruling against the law. Kagan was substantially involved in the Obama administration’s decision to abandon long-standing arguments in support of traditional marriage when the Defense of Marriage Act came under attack.

Republican Senate staff have also set up a Supreme Court YouTube channel. It contains excerpts from floor speeches, testimony, committee debate, and media appearances – all with a mind towards highlighting particular issues, which are fleshed out further in the notes for each video.

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