Kagan an Ultra-Liberal on Social Issues, Say Conservative Groups

Supreme Court nominee Elena Kagan remains largely a mystery to the general public, even though her nomination hearing starts today. Thanks to a virtual media blackout on Kagan's more controversial political stances and associations, Americans still know very little about the potential successor to Justice John Paul Stevens.

The media have often portrayed Kagan as a moderate [1], but some conservative groups say she's anything but. Conservatives expressed concern over Kagan's positions on social issues at a press conference June 24 hosted by nine different groups including:  Committee for Justice, Americans United for Life, Young Americans for Freedom, the Judicial Action Group, the Center for Military Readiness, Concerned Women for America, the Eagle Forum, the Liberty Center for Law and Policy, and the Republican National Lawyers Association

“Contrary to the 'blank slate' the White House media machine has tried to sell the American people, an objective view of Elena Kagan's record reveals a surprisingly clear picture of who she is,” said Mario Diaz of Concerned Women for America at the conference. “Kagan's record is that of a liberal political soldier, not an impartial jurist.”

A Media Research Center study found [2] that ABC, CBS and NBC evening newscasts have only aired eleven stories about Kagan since her May 10 nomination, and only one program covered the thousands of pages of documents about her released in the past few weeks.

But there is still some revealing information about Kagan that may give insight into her judicial philosophy, and more. The news might not cover it, but here are the crucial issues social conservatives have identified going into Monday's nomination hearing:

Kagan's Judicial Heroes Are Radical Activist Judges

Since Kagan has never served as a judge, it's difficult to predict what her own judicial philosophy will be like if she wins confirmation to the Supreme Court. One way to find out may be to look at the legal minds that she has considered mentors and role models.

At an awards ceremony in 2006, Kagan referred [3] to former Israeli Supreme Court president Aharon Barak as “my judicial hero.” She added that, in her lifetime, Barak was the judge who “has best advanced the values of democracy and human rights, of the rule of law and of justice.”

Barak has been referred to as a judicial activist by those on all sides of the political spectrum.

The left-leaning Justice Richard Goldstone, who served as a former justice of the Constitutional Court of South Africa, said that Barak was “unashamedly what, in U.S. terms, would be regarded as an 'activist judge.'”

U.S. Court of Appeals Judge Richard Posner has gone further, calling Barak a “despot.”

“What Barak created out of whole cloth was a degree of judicial power undreamed of even by our most aggressive Supreme Court justice,” said Posner.

According to Caroline Glick, deputy managing editor of the Jerusalem Post, Barak has “engaged in a free-wheeling dispensation of justice in accordance with his radical political views.”

Barak ruled that the Supreme Court could contest military orders, and his court blocked the construction of the Israeli security fence.

“[U]nder his judicial leadership the country was effectively transformed from a parliamentary democracy governed by law into a judicial tyranny governed by the preferences and prejudices of a fraternity of lawyers that Barak empowered,” wrote [4] Glick in an article on July 3, 2009.

Another one of Kagan's role models is Abner Mikva, a far-left progressive judge nominated by President Jimmy Carter, who Kagan formerly worked for as a clerk. According [5] to Sen. Jeff Sessions (R-AL), Mikva is one of the three judges Kagan speaks of most often – the other two are Barak and Justice Thurgood Marshall. In her remarks on her Supreme Court nomination, Kagan expressed her “great fortune” in working for Mikva, saying that he “represents the best in public service.”

Mikva is a noted opponent of gun rights, even referring to the NRA as the “street-crime lobby in Washington.” Mikva has said that for “most law, there is no original intent.” He defined judicial activism as “the decisional process by which judges fill in the gaps.”

Support for Using Foreign Law

While U.S. judges must rely solely on the U.S. Constitution during rulings, Kagan has showed support for U.S. judges relying on foreign law during her confirmation hearing for Solicitor General. When asked by Sen. Arlen Specter (D-PA) at the hearing if it was “ever proper for judges to rely on contemporary foreign or international laws or decisions in determining the meaning of provisions of the Constitutions?” Kagan replied that “…I think [I] should offer reasonable foreign law arguments to attract [certain] Justices' support for the positions the office is taking.”

Kagan's answer in the affirmative is telling of her judicial philosophy, said Judicial Action Group President Philip L. Jauregui.

“[T]here is no such thing as a 'reasonable foreign law' in such a context; all foreign law arguments in such context are constitutionally unreasonable and a violation of U.S. Constititutional Sovereignty,” Jauregui wrote in a letter to Sen. Patrick Leahy (D-VT) and Sen. Jeff Session.

As the Dean of Harvard Law School, Kagan also made “International Law” a first year required course as opposed to “U.S. Constitutional Law,” Jauregui pointed out.

“This action betrays Kagan's apparent position that the critical foundation of U.S. legal education includes an array of subjects, including team courses resolving complex problems, but not Constitutional law,” wrote Jauregui.

Support on Liberal Issues

A recent Rasmussen poll [6] showed that 41 percent of voters view Kagan as a political moderate or conservative. While often touted [7] as a moderate by the media, Kagan's history conflictingly paints her as a staunch liberal.

On life issues [8], Kagan believes partial-birth abortion should be used in certain circumstances, according to memos she wrote during her time serving under President Clinton.

Her views on free speech are also politically controversial. As Solicitor General, Kagan told [9] the Supreme Court that it was Constitutional for the federal government to prevent corporations from publishing pamphlets that support or oppose a specific political candidate. Her view on this issue was rejected by the court by a 5-4 majority.

Kagan has also been a strong opponent of “Don't Ask, Don't Tell.” While serving as Dean of Harvard Law School, Kagan called [10] the military ban on openly gay members “a profound wrong” and “a moral injustice of the first order.” Kagan also denied military recruiters access to the Harvard campus because of the “Don't Ask, Don't Tell” policy.

In regards to affirmative action, Kagan said she supported “non-remedial affirmative action” “as a legal matter, as a policy matter, and as a political matter,” in a 1997 memo [11] she wrote while serving in the Clinton Justice Department. In a 1995 note to Abner Mikva, who was serving as counsel for President Clinton at the time, Kagan wrote [12], “Is there a need for someone to keep on top of the affirmative action issue – for example, by working with Justice on its review of all affirmative action programs? I know the issue well (because I teach it) and care about it a lot; if there's stuff to do here, I'd love to do it.”

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