After studying Elena Kagan’s record, actively participating in her hearing, and listening to the views of folks in Utah and across the country, I do not believe that she meets the standards we should require of federal judges — especially Supreme Court justices.
The first important standard is experience. Ms. Kagan has never before served as a judge — and, in addition, has little legal experience of any kind. Over the Supreme Court’s long history, justices who were nominated without past judicial experience have had an average of 21 years of legal practice. Ms. Kagan has two. Her experience is instead academic and political.
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Ms. Kagan’s lack of experience puts even greater emphasis on the second standard: an appropriate judicial philosophy. America’s founders gave us some principles that establish this standard. James Wilson, who signed the Declaration of Independence and was one of Pres. George Washington’s original Supreme Court appointees, said that in America, “the people are masters of the government.” To be masters of the government, the people must control the Constitution that created government. President Washington said in his farewell address that the very “basis of our political systems is the right of the people to make and alter their constitutions of government.” Controlling the Constitution means not only selecting its words but determining the meaning of those words. Thomas Jefferson warned that our written Constitution can help secure liberty only if it is not made a “blank paper by construction.”
The law that federal judges interpret and apply to decide cases is written law — the Constitution and statutes. The Constitution must not only say what the people said when they made it, but it must mean what the people meant. Judges who take control of the Constitution’s meaning take away the people’s control over their Constitution and destroy this essential ingredient for liberty.
Will the Constitution control Elena Kagan, or will she try to control the Constitution? Does she believe that judges may change the meaning of the Constitution, and of the law generally? Is there any evidence that her personal or political views drive her legal views?
Ms. Kagan told the Judiciary Committee that “I think you can look to my whole life for indications of what kind of a judge or justice I would be.” That review provides several important categories of evidence. First, she has written and spoken generally about the role judges play in our system of government. In her Oxford University master’s thesis, for example, Ms. Kagan wrote that “new times and circumstances demand a different interpretation of the Constitution” and that judges may “mold and steer the law in order to promote certain ethical values and achieve certain social ends.” Several years later, as a law professor, she wrote that “the judge’s own experience and values become the most important element in the decision” of most Supreme Court cases. “If that is too results oriented,” she wrote, “so be it.”
Ms. Kagan served as a law clerk to Supreme Court justice Thurgood Marshall. In a tribute she wrote after his death, she described as a “thing of glory” his belief that the role of the courts and the purpose of constitutional interpretation is to “safeguard the interests of people who had no other champion.” In 2006, while dean of Harvard Law School, Ms. Kagan introduced Israeli Supreme Court justice Aharon Barak as “the judge or justice in my lifetime whom I think best represents and has best advanced . . . the rule of law.” Justice Barak is widely credited as perhaps the most activist jurist in the world; for him, as Judge Richard Posner has described it, “the judiciary is a law unto itself.”
The second category of evidence comes from the actions she took and the decisions she made while serving in the Clinton administration and as dean of Harvard Law School. Ms. Kagan played a central role in developing and advancing the Clinton administration’s extreme position on abortion, including the barbaric practice of partial-birth abortion. In a 1996 legislative-strategy memo, she labeled a “disaster” a proposed statement by a key medical group that there exist “no circumstances” in which partial-birth abortion is the only option. She drafted, and persuaded the group to adopt, language with a much more positive political spin. At her hearing, she offered the Judiciary Committee the implausible claim that she was merely trying to ensure that the medical group accurately expressed its own medical opinion.