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FIRST-PERSON: Is Kagan the right choice for the Court?

NASHVILLE, Tenn. (BP)–The U.S. Senate Judiciary Committee has begun confirmation hearings for Ms. Elena Kagan. Even though she lacks any judicial experience, her expressed views on such critical issues as the First Amendment, the role of the judiciary, the sanctity of human life, and homosexuality, among other matters, are alarming.

Throughout her career, Kagan has been very outspoken on her lack of respect for First Amendment rights.

Kagan believes speech may be regulated if the government’s motives are pure. This was clearly demonstrated in her oral arguments before the Supreme Court in Citizens United v. Federal Election Commission that the government has a right to limit interest group involvement in campaign finance. I am concerned about the impact this view would have on free speech cases that are bound to come before the court in the future.

Additionally, she has made it clear through associations and writings that she greatly admires activist judges. I, along with many others, am alarmed that she considers former Israeli Supreme Court Justice Aharon Barak to be her judicial hero. He is well known for his extreme views on judicial activism, even stating that “the constitution thus becomes a living norm and not a fossil, preventing the enslavement of the present to the past.” His affinity for international law trumping the U.S. Constitution is both dangerous and disturbing.

Kagan’s apparent lack of respect for unborn children is also troubling. As revealed in a memo she co-authored to then-President Clinton while serving as his legal advisor, she was instrumental in delaying enactment of a ban on the heinous practice of partial-birth abortion for several years, urging the president to support a Senate strategy that would advance what was regarded as a phony ban.

Kagan criticized the Supreme Court’s decision in Rust v. Sullivan, which upheld a law allowing the federal government to bar funding for health clinics that promote and encourage abortion as a method of family planning. Further, she agreed with a National Bioethics Advisory Commission report on cloning which found that creating embryos solely for research purposes was ethical. In other words, she had no problems with cloning embryos for the sole purpose of then killing them to harvest their fetal tissue — the so-called “clone-to-kill” legislation.

She has advocated, at times very strongly, for the expansion of homosexual rights. As dean of the Harvard School of Law, she barred military recruiters from campus in response to her personal objections with the military’s “Don’t Ask, Don’t Tell” policy. She called the policy a “moral injustice of the first order” and sent an e-mail message to students and faculty declaring, “I abhor the military’s discriminatory recruitment policy.”

In 2004 she signed an amicus brief when a coalition of law schools challenged the Solomon Amendment, which denied federal funds to schools that barred military recruiters. She then joined Harvard University and 39 fellow law school professors in calling for the Supreme Court to reject the Solomon Amendment. She and her fellow professors were rebuffed by an 8-0 Supreme Court decision in late 2006.

She also provided a weak defense of the Defense of Marriage Act while Solicitor General.

Ms. Kagan should be asked whether she agrees with fellow Obama nominee Georgetown law professor Chai Feldblum’s assertion that when the relative rights of Lesbian, Gay, Bisexual, Transgendered (LGBT) people and other people’s religious beliefs conflict and collide legally, “society should come down on the side of protecting the liberty of LGBT people.”

Professor Feldblum, given a recess appointment by President Obama to the Equal Employment Opportunity Commission in April, went on to state that, “Protecting one group’s identity liberty, may, at times, require that we burden others’ belief liberty.”

Does Ms. Kagan agree with her fellow nominee Feldblum’s views, as stated in “Moral Conflict and Liberty: Gay Rights and Religion” (Georgetown Law Faculty Publications, January 2010, originally published in Brooklyn Law Review, 2006), where Feldblum also declares that the law should “not privilege moral beliefs that are religiously based over other sincerely held core, moral beliefs”?

Every U.S. Senator given the opportunity should ask Solicitor General Kagan that question, a matter which tears at the heart of freedoms we all hold dear.

Until they receive an answer that repudiates Professor Feldblum’s First Amendment-denying legal philosophy, they should refuse to confirm her to the highest court in the land.

For a nominee who has not served as a judge, her record is nonetheless clear and very disconcerting. As the Senate considers Elena Kagan’s nomination as a Supreme Court justice, I am hopeful you will communicate your concerns to your senators, particularly if one of your senators is a member of the Judiciary Committee.

There is at least one thing we all can agree with Ms. Kagan on as it relates to her confirmation hearing — that these Judiciary Committee hearings should not be a “vapid and hollow charade,” in which a “repetition of platitudes” replaces a serious discussion of viewpoints and where “personal anecdotes” supplant “legal analysis,” as Kagan herself lamented about prior Supreme Court nominee hearings in a 1995 University of Chicago Law Review article.
Richard Land is president of the Ethics & Religious Liberty Commission. For an in-depth review of Elena Kagan’s professional background, as well as an outline of concerns raised in this commentary and more, see the ERLC’s fact sheet on Kagan. (http://erlc.com/article/elena-kaganfact-sheet)

    About the Author

  • Richard Land

    Richard Land, D. Phil, is the Executive Editor of the Christian Post, having previously served as president of the ERLC (1988-2013) and president of Southern Evangelical Seminary (2013-2021). He also serves as the chairman of the advisory board at the Land Center for Cultural Engagement at Southwestern Baptist Theological Seminary.

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