Bench Memos

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Five Smooth Stones for the Kagan Nomination


1. Elena Kagan clearly stated that, as a justice, she would look outside the U.S. Constitution — even to foreign law — for “good ideas,” but refused to embrace the Declaration of Independence. 

2. She believes the federal government can force you to eat fruits and vegetables — a constitutional perspective designed to rubber stamp Obamacare.

3. She repeatedly defended her extreme position favoring the Court’s abortion activism, and admitted that she edited a medical organization’s “neutral” and “scientific” statement opposing a partial-birth abortion ban, but only after being forced to acknowledge that a memo recommending changes was in her handwriting.

4. In testimony regarding the Second Amendment, Kagan’s responses were remarkably similar to nominee Sonia Sotomayor’s. Kagan mouthed fidelity to precedent but would not rule out overturning McDonald or Heller, as Sotomayor would apparently like to do.  Less than 24 hours later, the NRA concluded that she would be a similar justice and announced their opposition to her confirmation.

5. Kagan referred to her former boss President Clinton’s “don’t ask, don’t tell” policy as an injustice, but repeatedly insisted that her actions, which included treating military recruiters like second-class employers, actually supported the military.


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