Elena Kagan Admits She Is an Activist

Elena Kagan admitted today that she will be a judicial activist. And she didn’t bat an eye.

Now, this should not surprise anyone. After all, Ms. Kagan has called Israeli Judge Aharon Barak, a man who believes that the role of the judge is to “help bridge the gap between needs of society and law,” her “hero.” She is a woman who learned at the feet of both Judge Abner Mikva, a known liberal, judicial activist and Obama supporter straight out of the Chicago machine – and Justice Thurgood Marshall, who said, “[y]ou do what you think is right and let the law catch up.” She worked for the Clinton administration where she advocated against guns and for partial birth abortion, and she now works for the Obama administration as Solicitor General where she found time to file briefs against Arizona immigration laws. She kicked the military off campus, has been dubbed a legal progressive by more than one of her friends and colleagues, and she wrote an ode to socialism for her Masters Thesis. And these are but just a few of the very loud signals that have been sent about who she is.


Today, however, she admitted it herself. In questioning before the Senate Judiciary Committee, she suggested that there are two ways to change the Constitution. First, the amendment process under Article 5 of the Constitution. Second, judicial activism. Now she didn’t use that term, but she did embark on a description of school segregation – that such segregation was acknowledged and accepted by the 14th Amendment drafters and/or ratifiers, then set in stone by the Supreme Court in Plessy v. Ferguson, but then that this was “changed” by the Court in Brown v. Board of Education – and, by implication, that this was not just ok, but good and an appropriate way to “change.”.

When challenged by Senator Cornyn about the original intent (he suggested, quoting 19th Century Senator Charles Sumner, that the drafters/ratifiers understood the 14th Amendment to condemn “separate but equal” education – and that, therefore, the Brown Court only realigned the law with the intent of the ratifiers), Kagan backed away and said that she had not said that Brown “changed” the Constitution, rather that Brown interpreted it differently. (See the transcripts below)

Here’s what bothers me. If you believe that the Plessy Court got the intent of the ratifiers wrong, as Senator Cornyn does, then the Brown Court simply got it right and restored the original intent, and thus, the will of the people – following the law. If you believe, however, as Ms. Kagan announced today, that the ratifiers believed in school segregation, then you must believe Plessy correctly interpreted the law as it was given them. But for Kagan it would seem, it was then up to the Court (as it would seem she believes the Brown Court did) to “do what you think is right and let the law catch up.”

I don’t think there is any doubt where Ms. Kagan is coming from. She literally could not have made her perspective more clear if she had jumped up and down and screamed “I AM AN ACTIVIST.”

But that wasn’t all.

When discussing international law with Senator Grassley, Kagan said something to the effect of “judges should look to good ideas wherever they can find them.” Then she again contradicted herself, this time when talking to Cornyn when she said Judges are constrained to “specifically legal sources.”


Later, when discussing the First Amendment, Ms. Kagan discussed her view that it was viewed much more narrowly by the Founding Fathers, so the only way to interpret it is to look at the volumes of Court cases on the subject. So, then, according to her, it is appropriate that we get our understanding of free speech, freedom of religion, freedom of the press and other important freedoms only by way of what the Court tells us, and not what the people told us by way of the ratification of the Constitution.

Finally, when asked about the right to privacy supposedly guaranteed in the Constitution – a total fiction that has been trumpeted to allow the murder of millions of babies – she not only defended it but articulated why it’s an appropriate interpretation.

There are many concerns about Elena Kagan – but the fact she all but screamed at the hearings that she is an activist at heart is something that should be sending alarm bells going off among Republicans in the Senate. There is no question that she believes the Constitution is no obstacle to achieving the policy ends of her choosing – but if Republicans don’t turn up the heat based on these unbelievable admissions, she will smile and joke all the way to a lopsided confirmation and the last laugh will be on the American people.

Highlights from Transcripts

Kagan and Leahy from 6/29/2010 AM:


Senator Leahy, before I answer that question, may I say a little bit more about what you started with, about constitutional changes?


But you — you said something which sort of triggered a thought in me, and I just wanted to — as you said, there are all these many changes that have happened to the Constitution.

And I think it’s important to realize that those changes do come in sort of two varieties. One is the formal amendment process. And I think it was Senator Cornyn yesterday who had talked about the formal amendment process. And that’s tremendously important.

So, you know, when Thurgood Marshall said that this was a defective Constitution, you know, he was talking about the fact that this was a Constitution that counted slaves as three-fifths of a human being, that didn’t do anything about that original sin of our country, and the 14th Amendment changed that. The 14th Amendment was an enormous break after the Civil War, and — and created a different Constitution for America. So partly the changes come in that way.


But — but partly, they — they come outside the formal amendment process, as well. And what you said about Plessy and — and Brown is absolutely right. That if you look at the specific intent of the drafters of the 14th Amendment, they thought that the 14th Amendment was perfectly consistent with segregated schools.

I mean, you just have to — you can’t really argue otherwise as an historical matter.

But in Brown, the court said otherwise. And, you know, step by step by step, decision by decision, in large part because of what Justice Marshall did, you know, we got to a place where the court said it’s inconsistent with the principle of equal protection of the laws that the drafters of the 14th Amendment laid down; is inconsistent with that principle to have segregated schools.

So — so that’s the way in which change can happen, as well.

Kagan and Cornyn from 6/29/2010 PM


In an earlier exchange with Senator Leahy, you stated that there are two ways to change the Constitution, obviously by Article V, and you said by, secondly, by court decision. And I want to ask you a little bit about that.

You cited Brown v. Board of Education as an example of a court decision that changed the Constitution, stating that the framers of the 14th Amendment believed it allowed segregation in its schools.

I believe — and I think a number of prominent legal scholars agree — that Brown did not change the Constitution. Rather, I believe Brown affirmed and restored the original meaning of the 14th Amendment by overturning the repugnant and constitutional separate but equal regime sanctioned by Plessy v. Ferguson.

And so I support Brown on originalist grounds. I would just refer to you, Senator Charles Sumner, a leading framer of the 14th Amendment, who said it’s easy to see that the separate school founded on an odious discrimination, and sometimes offered as an equivalent for the common school, is an ill-disguised violation of the principle of equality.

And between 1870 and 1875, both houses of the United States Congress voted repeatedly by significant margins, majorities, in favor of legislation premised on the theory that segregation of the public schools is unconstitutional.


So, in light of this history, I believe that Brown did not change the Constitution, but rather realigned the interpretation of the 14th Amendment with the intentions of the framers of the 14th Amendment. And so on this, you and I may disagree, but let me…


If I could, Senator Cornyn?




I think I didn’t say that Brown changed the Constitution. I think I said that Brown interpreted the Constitution in a different way than it had been interpreted theretofore.

I do think it’s hard to make the case that school desegregation was thought of as commanded by the 14th Amendment in 1868. And I think that there are a variety of other practices that similarly were countenanced in 1868 that are not now.

Now, that doesn’t mean that the Constitution has changed. In fact, the Constitution’s equal protection clause is a quite general provision. It speaks in broad terms. It lays down a general principle of equality.

And in writing the provision that way, I think that the drafters of the Constitution knew exactly what they were doing. They didn’t mean to constitutionalize all of their practices in 1868. They meant to set forth a principle of equality that would be applied over time to new situations and new conditions. And I think that’s exactly what has occurred.


I appreciate your answer. What I’m trying to figure out is whether you and I agree or disagree about how the American people can change their Constitution. Do you think the court can change the Constitution? Or do you agree with me that Article V has the sole means by which the Constitution can be modified, that is, either through a constitutional amendment or a constitutional convention proposing constitutional amendments, which are later ratified by three-quarters of the states?


I think the Constitution is a timeless document setting forth certain timeless principles. It’s the genius of the Constitution that not everything was set forth in specific terms, but that instead certain provisions were phrased in very general terms that enabled people — that enabled the courts over time to apply the principle to new conditions and to new circumstances.


And I think that that’s the continuing obligation of the court to do that, to ensure that the Constitution does apply appropriately and that the timeless principles set forth in the Constitution do apply appropriately for our posterity.


Do you believe in the idea of a living Constitution, that the Constitution itself has no fixed meaning?


You know, I — I think that — I — I don’t particularly think that the term is apt, and I especially don’t like what people associate with it. I think people associate with it a kind of loosey- goosey style of interpretation in which anything goes, in which there are no constraints, in which judges can import their own personal views and preferences. And I most certainly do not agree with that.

I think of the job of constitutional interpretation that the courts carry on as a highly constrained one, as constrained by text, by history, by precedent and the principles embedded in that — in that precedent.

So the courts are — are — are limited to specifically legal sources. It’s a highly constrained role, a circumscribed role. So — so to the extent that that term is used in such a way as to suggest that that’s not the case, I — I don’t agree with that.

But I do think, as — as I just indicated, that the Constitution, and specifically — not the entire Constitution, but the general provisions of the Constitution, that the genius of the drafters was — was to draft those so that they could be applied to new conditions, to new circumstances, to changes in the world.

Kagan and Grassley, 6/29/2010 PM


I said I didn’t disagree with you on the importance of international law. Let me go on, please.

Should judges ever looked to foreign law for, quote-unquote, “good ideas?” Should they get inspiration for their decisions from foreign law?


Well, Senator Grassley, I — I guess I’m in favor of good ideas coming from wherever you can get them, so in that sense I think for a judge to read a “Law Review” article or to read a book about legal issues or to read the decision of a state court, even though there’s no binding effect of that state court, or to read the decision of a foreign court to the extent that you learn about how different people might approach and have thought about approaching legal issues.


But I don’t think that foreign law should have independent precedential weight in any but a very, very narrow set of circumstances. So — so I would draw a distinction between looking, wherever you can find them, for good ideas, for — just to expand your knowledge of the way in which judges approach legal issues, but — but making that very separate from using foreign law as — as precedent or as independent weight.

Fundamentally, we have an American Constitution. Our Constitution is our own. It’s — it’s the text that we have been handed down from generation to generation. It’s the precedents that have developed over the course of the years. And except with respect to a very limited number of issues, that Constitution ought to — the — the fundamental sources of legal support and legal argument for that Constitution ought to be American.


Which foreign countries would you suggest we look to for good ideas?


Oh, Senator Grassley I — I guess I would say again what I started with, which is you can look to good ideas wherever they come from. You know, there is a — a brief that we filed recently in the Supreme Court. The solicitor general’s office filed it. It regarded a Foreign Sovereign Immunities Act case.

And in the course of that brief, we noted a number of different foreign precedents regarding what other nations do with respect to the immunity of foreign officials. So, you know, that’s the kind of way in which I think having an awareness of what other nations are doing, you know, might be — might be useful.


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