Politics & Policy

The Case against Confirmation

Elena Kagan's record shows her to be an inappropriate choice for the Supreme Court.

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 Courts 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.

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.

In a 1997 legislative-strategy memo after President Clinton vetoed the Partial Birth Abortion Ban Act, Ms. Kagan urged him to support substitutes offered by Democratic senators. This tactic was intended to siphon votes away from a veto override, and, because the substitutes would not pass, leave partial-birth abortion unlimited. She made this political recommendation, however, even though the Justice Department’s Office of Legal Counsel concluded that the substitutes were unconstitutional under Roe v. Wade. It appears that her personal or political views trumped her legal views.

At Harvard, Ms. Kagan defied the federal Solomon Amendment, which required that, at schools that receive federal funding, military recruiters must be given the same access to students that other employers have. In 2002, the Defense Department informed Harvard that its practice of letting military recruiters contact students through the Harvard Law School Veterans Association — which had no office, no budget, and no staff — rather than the school’s own Office of Career Services, did not comply with the law.

Ms. Kagan condemned the so-called “don’t ask, don’t tell” law, calling it a “moral injustice of the first order,” and joined a legal brief in a case challenging the constitutionality of the Solomon Amendment. Hours after the U.S. Court of Appeals for the Third Circuit enjoined the law, she reinstated the “separate but equal” policy and shut military recruiters out of the CSO. Harvard, however, is in the First Circuit, not the Third, which means that the Solomon Amendment was still in force. Ms. Kagan continued blocking equal access by military recruiters even after the Third Circuit stayed its own decision. Once again, her personal views drove her legal views.

Ms. Kagan’s hearing did nothing to temper the picture of judicial activism painted by her record. Despite the excessive media and political attention one can receive, a confirmation hearing is only a small part of the picture for any nominee, and Supreme Court hearings have become less and less meaningful, with nominees prepared and prepped to provide answers that are more form than substance. Ms. Kagan, for example, referred to any previous Supreme Court decision as “settled law,” whether it was two days or two centuries old. Her pledge to give such “binding precedent . . . all the respect of binding precedent” told us nothing more. In effect, she said that a decision is a decision and a precedent is a precedent — not much to go on.

Ms. Kagan chose not to answer many questions by various senators about a range of issues. I spent 30 minutes asking her about freedom of speech, campaign-finance reform, and the Citizens United v. FEC case, which she argued before the Supreme Court. I asked for her own views, but she instead told me what Congress said, what she argued before the Court, and what the Court held. I already knew those things because I had read the statute, the transcript, and the opinion. She would not even admit that she had in fact written the 1996 memo about partial-birth abortion that not only bore her name but included her handwritten notes. After three attempts, all she would say is that it was in her handwriting; I suppose that left open the possibility that it had been forged.

A nominee, of course, may choose to use such code words and evasions. For Ms. Kagan, however, this choice stood in stark contrast to her previous strong critique of Supreme Court confirmation hearings. After serving on the Judiciary Committee staff during Justice Ruth Bader Ginsburg’s hearing, Ms. Kagan wrote in a 1995 law-journal article that Supreme Court confirmation hearings had become a “vapid and hollow charade” and taken on “an air of vacuity and farce.” The solution, she said, was for a nominee to discuss “the votes she would cast, the perspective she would add, and the direction in which she would move the institution.” Ms. Kagan refused to discuss any of these at her own hearing, prompting the Associated Press to ask the question on many Judiciary Committee members’ minds: “What happened to the Kagan standard?”

Liberty requires limits on government; it always has, and it always will. That includes limits on judges. Measured against that standard, Elena Kagan’s record shows that her primarily academic and political experience and her activist judicial philosophy make her inappropriate for serving on the Supreme Court. Her hearing offered nothing to neutralize the clear evidence of what kind of justice she will be.

– Sen. Orrin G. Hatch (R., Utah) is a member and former chairman of the Senate Judiciary Committee.

Orrin Hatch — Orrin G. Hatch is the chairman emeritus of the Orrin G. Hatch Foundation. A Utah Republican, he served on the Senate Judiciary Committee from 1977–2019.


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