Elena Kagan vs. public opinion

One of the biggest controversies during the Kagan confirmation fight has been her pivotal role in the Clinton administration’s successful campaign to prevent a Congressional override after the President vetoed a partial birth abortion ban.  She and the president worried about an override precisely because public opinion is overwhelmingly against this most radical of abortion procedures.  Gallup reports that “Americans have shown overwhelming opposition to partial-birth abortion …  In [a 2007] poll, 72% say such abortions should be illegal, while only 22% say they should be legal.”

No Kagan controversy has topped her decision as dean of Harvard Law School to protest the military’s “Don’t Ask, Don’t Tell” policy by barring military recruiters from using the school’s career services.  That decision has come back to haunt her.  A CNN poll found that Kagan’s ban on military recruiters made Americans less likely, rather than more likely, to support her nomination by a two-to-one margin.

Elena Kagan’s passion about gay rights has sometimes clouded her judgment and legal analysis.  In fact, as U.S. Solicitor General, Kagan failed to vigorously defend the federal Defense of Marriage Act – defining marriage as a union between a man and woman – despite her institutional obligation and promise to senators.  Perhaps Kagan imagines that Americans are coming around to her view on gay marriage.  But Gallup reported last year that “Americans’ views on same-sex marriage have essentially stayed the same in the past year, with a majority of 57% opposed to granting such marriages legal status and 40% in favor.”

Given the expansive view of Congressional power endorsed by Kagan during her hearings last month, she is widely expected to vote to uphold Obamacare when the constitutional challenge to its individual insurance mandate reaches the U.S. Supreme Court.  Again, she’s on the wrong side of public opinion. Rasmussen reported this week that fifty-six percent of voters now favor repeal of the new health care law, while 38% oppose repeal. The numbers are even more lopsided – nearly two-to-one – when looking only at those voters who strongly favor or strongly oppose repeal.

A final example concerns the War on Terror.  While serving as dean, Kagan co-authored a letter to senators demanding that enemy combatants be given access to civilian courts.  American wholeheartedly disagree. Quinnipiac University reported earlier this year that American voters, by a 59 to 35 percent margin, believe 9/11 terrorism suspects should be tried in military rather than civilian courts.  By a still larger margin – 68 to 25 percent – voters say that “terrorism suspects should not receive all of the constitutional protections afforded by a civilian trial.”

These poll results are from nationwide surveys.  In all likelihood, the margins are even more lopsided in red states.  That should worry red state Democratic senators.  At the top of the worried list must be Sen. Blanche Lincoln of Arkansas.  When that state’s voters were asked whether they would be more or less likely to vote for her in November if she supports Kagan, they resoundingly answered “less likely” by more than a two-to-one margin.  The same poll revealed that that the negative reaction to support for Kagan is a result of Kagan’s views on gun rights, military recruiters and Obamacare.

The lesson is clear.  With a large number of Senate Democrats currently representing red states, and most of those senators poised to vote for Elena Kagan, the chasm between Kagan and the American people on a host of hot-button issues presents a valuable electoral opportunity for the GOP.  Only time will tell whether Republican senators and candidates have the will and skill to take advantage of Kagan’s historic unpopularity between now and November.

Curt Levey is Executive Director of the Committee For Justice, which promotes constitutionalist judicial nominees and the rule of law.