Sekulow: Kagan May Not Know It but She Is a Legal Progressive

Posted July 1, 2010 at 3:16pm

Elena Kagan is a liberal, a progressive, and if confirmed to the Supreme Court, will be a judicial activist in the mold of the late Justice Thurgood Marshall and the former president of Israel’s Supreme Court, Aharon Barak. Although Kagan told Senate Judiciary Ranking Member Jeff Sessions (R-Ala.) during her confirmation hearing this week that she didn’t know what “legal progressive” means, after a year or two on the Supreme Court, she’ll be praised with that terminology by the left’s legal establishment.

[IMGCAP(1)]Yes, she told Judiciary Chairman Patrick Leahy (D-Vt.) that the Heller and McDonald 2nd Amendment cases were “settled law,” but that means little in a confirmation hearing. When Leahy asked Justice Sonia Sotomayor last year at her confirmation hearings, “Is it safe to say that you accept the Supreme Court’s decision [Heller] as establishing that the 2nd Amendment right is an individual right? Is that correct?” Sotomayor responded, “Yes, sir.” Just this week, Sotomayor joined a dissent in the McDonald case that said, “I can find nothing in the 2nd Amendment’s text . . . to protect the keeping and bearing of arms for private self-defense purposes.” Just another example of why Kagan was right when she once called the confirmation process a charade.

Sen. Herb Kohl (D-Wis.) was disingenuous when he told Kagan, “We have less evidence about what sort of judge you will be than on any nominee in recent memory. Your judicial philosophy is almost invisible to us.” I draw your attention to Kohl’s careful use of the word “almost.” No, Kagan has never been a judge and until she became solicitor general, she had never appeared before an appellate court. She does have a partisan record and that should not be forgotten as she plays her role in the “charade” of confirmation.

Kagan worked for Michael Dukakis and Bill Clinton. Her current employer is Barack Obama. Neither is she a moderate nor is her judicial philosophy a mystery. President Obama did not nominate an unknown to serve as solicitor general and surely he would not nominate an unknown to serve on the Supreme Court. Kagan, like many of us in Washington, D.C., is partisan. Does that disqualify her? No, but it should change the debate surrounding her nomination.

Kagan persuaded former President Bill Clinton to veto the partial birth abortion ban after calling President Clinton’s desired approach a “problem.” She blamed the wrong branch of government for “Don’t Ask, Don’t Tell.” As a scholar, Kagan should have remembered that it was the legislative and executive branch that imposed DADT on the military. If she was upset with the policy, she should have blamed Congress and her old boss Clinton. By calling the policy abhorrent and targeting her outrage at the military, Kagan cast a cloud over the military and attempted to impede military recruiting at Harvard Law School. We should ask Kagan why she thought Harvard Law students, of all people, could not make their own decisions about military service without Dean Kagan providing her degrading commentary on the military.

While Kagan was outspoken about her opposition to military recruiters at Harvard Law, she made no protest about a Saudi prince’s $20 million donation to Harvard for the establishment of an Islamic studies institute that, among other things, “funds” the study of Sharia law. When Sharia law is implemented, it is among the most oppressive, anti-human rights legal regimes in history. In Saudi Arabia, homosexual conduct is punished by death or a lesser penalty of lashings.

Kagan’s views are not reflective of mainstream American. She will be known as the nominee, and likely the justice, who fought military recruiters all the way to the Supreme Court and lost 8-0. For that, we should all remember who gave Kagan a lifetime appointment on the Supreme Court.

At the very least, I think Kagan has a good sense of humor. When Sen. Lindsey Graham (R-S.C.) asked about where she was on Christmas Day, referring to the Christmas Day bomber, she was quick to respond, “You know, like all Jews, I was probably at a Chinese restaurant.” As someone with a half-Jewish family, I can definitely appreciate the humor and reality of hitting the local Chinese restaurant on Christmas Day.

Jordan Sekulow is a lawyer and director of international operations at the American Center for Law & Justice.