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Supreme Court Nominee Kagan’s Political Agenda

Written by Ann Shibler on June 09 2010.

With no judicial opinions, zero time on any bench, and very little published material, Kagan is lacking a substantive public record. As Dean of Harvard’s law school, she was hired under then-president Larry Summers, who currently is White House National Economic Council director. She spent some time inside the Clinton Administration as a policy advisor, plus one year as the Solicitor General in the Obama Administration, giving enough clues, regardless of the subtle rhetoric -- hers, or the news media’s -- to indicate her personal views no matter how carefully she tiptoes through the media blitz and confirmation questioning.

Widely known are Kagan’s views on the Don’t Ask, Don’t Tell military policy and the Solomon Amendment, as well as her pro-abortion stance. Still, the New York Times would have us believe that Kagan is a moderate, if not a conservative, citing her decision to bring in more conservative law professors during her reign at Harvard than anyone else. The Times even placed her close to the Tea Party movement, having a supposed constitutionalist ideology because she once wrote, “The Constitution generally imposes limitations on government rather than establishes affirmative rights and thus has what might be thought of as a libertarian slant. I fully accept this traditional understanding.” Paying lip service to constitutional limitations and then ignoring them to advance the transference of power to the federal government is all too common these days.

What Kagan actually did while at Harvard was to replace the study of Constitutional law with that of international law. At this time, the study of constitutional law is no longer a requirement for Harvard law grads. In its place are three courses on international public, economic and comparative law, that are described as introducing “students to one or more legal systems outside our own, to the borrowing and transmission of legal ideas across borders and to a variety of approaches to substantive and procedural law that are rooted in distinct cultures and traditions.” As Dean, none of this could have been implemented without Kagan’s imprimatur if not personal directive.

On the First Amendment, Kagan’s views are clear. Kagan has demonstrated that she has no trouble suppressing speech if “it is offensive to society or to the government.” In United States v. Stevens, Kagan, as Solicitor General, argued that some speech may not be entitled to First Amendment protection: “Whether a given category of speech enjoys first amendment protection depends upon a categorical balancing of the value of the speech against its societal costs,” she said. Individual liberty and rights are easily trampled by the heavy boot of government authority in Kagan’s thinking.

In the summer of 2007 in a “From the Dean” bulletin column, Kagan, who had hired left-leaning scholar Marc Tushnet for the Harvard faculty, labeled him an expert on the Second Amendment and included one of his articles in the Harvard bulletin. Tushnet had written a book “Out of Range” in which he espoused the view that the Constitution allows for “substantial amounts of gun control.” She also claimed in a 1987 memo while clerking for Justice Marshall that she was “not sympathetic” toward a gun-rights claim.

In Kagan’s 2001 piece “Presidential Administration,” which appeared in the Harvard Law Review, she identifies and labels the absorption or transfer of power into the White House of various actions formerly attributed to administrative agencies; she has no problem with centralizing more power in the executive branch. Tushnet further expanded on her ideas in his book “The New Constitutional Order,” commenting in one article that “the proliferation of White House czars is consistent with Kagan’s ideas of thinking about presidential administration.”

That fits right in with Kagan having hired Cass Sunstein during her reign at Harvard. She called Sunstein “… the preeminent legal scholar of our time -- the most wide-ranging, the most prolific, the most cited, and the most influential.” Sunstein who has bizarre ideas and had ties to Obama and Kagan at the University of Chicago Law School, has since become one of Obama’s czars as Administrator of the White House Office of Information and Regulatory Affairs.

When it comes to understanding the Constitution in general, Kagan is said to be weak. She wrote a tribute to the late Justice Thurgood Marshall in the Texas Law Review that exposed some of her beliefs through the approving way she recounted one of Marshall’s “characteristically candid” speeches. According to Kagan, Marshall declared “that the Constitution, as originally drafted and conceived, was ‘defective.’” Marshall went on to say, “The Constitution today . . . contains a great deal to be proud of. [B]ut the credit does not belong to the Framers. It belongs to those who refused to acquiesce in outdated notions of 'liberty,' 'justice,' and 'equality.’" Kagan concluded her tribute to Marshall: “[O]ur modern Constitution is his." Sounds as though she is one of the “living/evolving Constitution” crowd. Can she be trusted, then, to interpret the Constitution and apply the law according to the original intent?

What is emerging is a pattern of sheer liberalism -- “I absorbed liberal principles early,” Kagan wrote in a Princeton newspaper in 1980.  In her thesis on socialism in New York City she wrote “Americans are more likely to speak of a golden past than of a golden future, of capitalism’s glories than of socialism’s greatness.” She then called the demise of socialism “a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America ... In unity lies their only hope.”

Kagan’s path leading to the Supreme Court comes from association with a tightly-knit and intertwined group of liberals, leftists and global elitists who continue to have their careers advanced in order to support and promote an agenda that coincides with the Obama Administration’s and the plans of those who would completely destroy the checks and balances of the three branches of government laid out by our Founding Fathers. Her intense executive branch experience will most likely influence her decisions, and we could see her siding with the federal government’s positions on cases that come before her -- cases involving challenges to government healthcare, state sovereignty issues, the right to keep and bear arms, presidential power, torture, warrantless wiretapping, indefinite detention, and abortion. To quote liberal blogger Glenn Greenwald: “Nothing is a better fit for this White House than a blank slate, institution-loyal, seemingly principle-free careerist who spent the last 15 months as the Obama administration’s lawyer vigorously defending every one of his assertions of extremely broad executive authority.”

One generally labors in the field where one’s heart is. And Elena Kagan has been immersed in the kingdom of liberalism her entire adult life, from legal academia, clerking for Justice Thurgood Marshall, working for the Dukakis presidential campaign, as Clinton White House policy advisor, as the Obama Administration’s solicitor general, and of course as Dean of Harvard Law School. Her appointment should be seen as the political maneuver that it is.

Appointing an inexperienced lawyer to the Supreme Court bench is not all that revolutionary as some are claiming. The problem lies with Kagan’s judicial philosophy and personal legal philosophy that seem to be far removed from sound constitutionally based principles. Can someone with such strong beliefs and philosophies divorce themselves from those beliefs and philosophies and become completely, constitutionally objective from the bench? Remember, this is someone who hoped that the future would “be marked by American disillusionment with conservative programs and solutions, and that a new, revitalized, perhaps more leftist left will once again come to the fore,” having written this after the Reagan presidential win.

Opposition to her confirmation must snowball, and one tactic to use to accomplish this is to help spread the word on Kagan. Then, contact your senators in opposition to Kagan's confirmation and remind them of the upcoming November elections and their responsibility on behalf of the electorate to defend the Constitutional principles they are sworn to uphold.


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