Elena Kagan Is No Supreme Court Justice

During her tenure as the Dean of Harvard Law, Elena Kagan reportedly continued the general Harvard policy of being opposed to the “Don’t Ask, Don’t Tell” policy of the military developed under the Clinton Administration.  Kagan actually went beyond this position by attempting (wrong-headedly) to punish the military for this executive policy by denying the military campus access, with other hiring entities, to recruit Harvard students.  In an attempt to defend her anti-military position, Kagan wrote in her amicus brief before the Supreme Court, “We are deeply committed to a fundamental moral principle: ‘A society that discriminates based on sexual orientation–or that tolerates discrimination by its members–is not a just society.'”


Kagan and her associates in Harvard elitism not only decry a society that discriminates, but also a society that “tolerates” discrimination by its members.  In Kagan’s view, justice requires that any expression of “discrimination” be crushed:  If a Pastor reads from the Bible and tells his congregation that homosexuality is a sin, this will not be tolerated.  If the Boy Scouts refuse to appoint homosexuals as leaders, this cannot be tolerated.  If the Obama Administration’s policies are criticized, it is determined that the criticism is based on racism, and this dissent will not be tolerated.  Any form of “Hate Speech”, including pointing out the flaws of government, would be stifled.  By affirming her belief in this principle, Kagan takes a position of denying freedom of speech and the free practice of religion.


In addition, Kagan’s apparent lack of respect for the First Amendment was further evidenced when, as Solicitor General, she signed her name to a brief in United States v. Stevens [2010] making the disturbing argument that “[w]hether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs”.  Anyone who advocates abrogation of the Constitution and the Bill of Rights, as Ms. Kagan does, should not serve as a lower judge, let alone on the highest court of the land.


Kagan also holds the view that a liberal executive branch can accomplish a radical, socialist agenda through regulation and executive orders, bypassing the Congress and the will of the people entirely.  Anyone who advocates turning our Presidency into a dictatorship by denying Balance of Powers, is again seeking to abrogate the Constitution and should not be in any way a judge, especially on the Supreme Court.


During her tenure as Dean of Harvard Law, Kagan conspired with Harvard President Larry Summers to whitewash the admitted plagiarism of two Harvard Law professors where Kagan and Summers issued a statement that no investigation was necessary and no malfeasance was committed by the two professors.  Any Harvard student found to be plagiarizing in their writings would be suspended or dismissed from school.  Kagan decided, in her best judgment, not to pursue disciplinary action against these professors who stole other peoples’ writings in their published books.  We don’t need this kind of lapse of character and poor judgment on the Supreme Court.


In her graduate thesis Ms. Kagan expressed her view that it was “not necessarily wrong or invalid” for judges to “mold and steer the law” to achieve desirable, social justice.  According to Kagan, this form of judicial activism should be based on either “the Constitution or another accepted source of law” that is acceptable to the people.  Kagan’s view is that the law (the Constitution) should be molded and twisted by loose interpretation to serve as a rationale for judicial opinions that achieve social goals.  When the Constitution is inconsistent with Kagan’s social goals, “another accepted source of law” must be developed to take the place of the Constitution, so that the socialist opinion can be justified.  Many far-left legal authorities have fought for adoption of international law to overrule the Constitution and our national sovereignty and to serve as Kagan’s “other accepted source of law”.  That Kagan foresees undermining the Constitution and substituting international or some other source of law is no less than treason.  We do not need, and we must not install, such a traitor to the Supreme Court of the United States.


Elena Kagan supports the promotion of abortion, including taxpayer funding of abortion.  In her publications, she has disagreed with the Supreme Court decision in Rust v. Sullivan where the Court found that government did have the right to deny taxpayer funds to groups that promote or perform abortions.  In almost all of the cases where she has expressed an opinion, her opinion has ended up being contrary to Supreme Court rulings.  Kagan is out of synch with the Supreme Court and with the American people.  The Declaration of Independence guarantees “life, liberty and the pursuit of happiness”; Kagan’s pro-death position and favoring federal funding for abortion means that she is also out of synch with the Founding Fathers.  Kagan must not be confirmed to the Supreme Court bench.


While clerking for the Supreme Court in 1987, Kagan actively promoted gun licensing and registration.  During the 1990’s, Kagan prepared an executive order for the Clinton Whitehouse banning semi-automatic weapons.  As late as her Solicitor General hearings, Kagan told the Senate that, in her opinion, the Second Amendment did not deserve “unlimited protection against government regulation”.  Kagan continues to show her blatant disdain for the Constitution and Bill of Rights.  The Senate must take every action necessary to prevent her confirmation as she believes in subverting the Constitution rather than upholding or defending it as she should.


While there is little record of Kagan’s little experience with the law, what little we have reveals a radical far-left person who has a passion for achieving social justice goals.  Her plan to accomplish these social goals is to twist and mold the Constitution to such an extent that she feels she can justify accomplishing her socialist goals.  Because of her small record, questioning in the Senate must be comprehensive, penetrating and aggressive.  Despite exhaustive and concerted questioning, many nominees try to respond to the questions without answering them so they don’t have to reveal their current positions on vital issues, or they tell you what you want to hear, things that are calculated to be pleasing to you, even though the words are not based on beliefs but are an attempt to deceive.


Even though the President has the right to make nominations, part of the constitutionally prescribed balances of power is that the Senate has the equal right, even an obligation, to confirm or to deny confirmation based on what they have learned about the nominee and the free exercise of their conscience.  If the President nominates an inappropriate person for office, the Senate is obligated to deny confirmation.  Even if you are the only one who votes against confirmation, while your vote may not have made any real difference in the outcome, honor demands that you follow your conscience and vote accordingly (your constituents will be watching closely).  If all other Senators are corrupt and vote for the nominee against their better judgment, the inappropriate nominee gets confirmed, but you have kept your honor by following your conscience and the truth.


Mike Lee, a Constitutional Law specialist, currently in the Republican primary to run for the U.S. Senate discussed the Kagan nomination: “I am deeply disturbed by this nomination” he adds. “Her position on military recruiting at Harvard, in a time of war…is reason enough for me to have a strong inclination to vote her down.” It is possible that Kagan and one or two other Supreme Court nominees from Obama will make their way through the vetting process to confirmation, and the court will begin immediately to lurch widely to the left where it will remain unchanged for greater than 40 years.  Mike Lee tells us that in the Constitution, Article III, Section2, Congress has the authority to remove issues from the federal courts’ jurisdiction and “has prudently exercised that power…more often than people think.”  So at least we’re supposed to have checks and balances between Congress and the Supreme Court when the Court goes unconstitutional.  Of course, denying Kagan and her sort confirmation to the Court, such that the majority of our Supreme Court Justices will be adherent to the Constitution, is much easier and more practical than trying to repair damage to the Constitution after the fact.