Elena Kagan’s Supreme Court nomination: Conservatives respond

Mike Riggs Contributor
Font Size:

As word spread that President Obama would nominate Solicitor General Elena Kagan to the Supreme Court, several top journalists and legal scholars readied opinions to post at the crack of dawn Monday. Others, such as the Republican National Committee and Senate Majority Leader Mitch McConnell’s office waited until the president made his announcement at 10 a.m. this morning. To help you sort through the support and opposition for the former Harvard Law School Dean, The Daily Caller has created an annotated roundup of opinions, sorted by ideological affiliation.

From the right:

  • In an e-mail statement, Dr. Charmaine Yost of Americans United for Life wrote: “President Obama’s choice of Solicitor General Kagan makes it clear that liberal judicial activism will be the impact of this untried and untested judicial pick, leading to unknown consequences for the American people. The president’s portrayal of Solicitor-General Kagan as mainstream and centrist is inconsistent with Kagan’s own record. She has been an abortion advocate and activist and an apologist for activist judges. Kagan’s confirmation will give us the kind of activist, radical Supreme Court that gave us the Roe decision.”
  • In a post at the American Spectator, Phillip Klein wrote: “While critics will take issue with Kagan’s lack of experience as a judge, the advantage from a confirmation standpoint is that she’s much more of a blank slate and won’t have as much of a paper trail to go through, depriving opponents of ammunition. Ultimately, Kagan is likely to face relatively smooth sailing because Republicans know Obama will get a nominee one way or another. It’s unlikely that anybody who Obama nominates would be any better than Kagan, but it’s quite possible that were her nomination rejected, that he could nominate somebody much worse.
  • In an e-mail statement, the Republican National Lawyers Association wrote: “It is worth mentioning at the start, however, that while many Obama administration supporters have attempted to paint her as a moderate who should be considered a consensus nominee, she is not a moderate. She works for Obama, served in the Clinton administration and was on the Dukakis campaign. …The left is now arguing that the handful of Republicans who joined Democrats in voting for Kagan’s nomination for solicitor general should also vote for her confirmation to the Supreme Court. Would the same logic apply to those who voted against her, including for Senator Specter’s vote? Her tenure as solicitor general has given senators little more to base a vote on than before and shouldn’t a position that carries a lifetime appointment be held to an even higher standard than the solicitor general? Wouldn’t that give those who voted “nay” on Kagan the first time around have even more cover to do so this time?”
  • In an e-mail statement, Sen. John Cornyn, Texas Republican, wrote: “There is no doubt that Ms. Kagan possesses a first-rate intellect, but she is a surprising choice from a president who has emphasized the importance of understanding ‘how the world works and how ordinary people live.’ Ms. Kagan has spent her entire professional career in Harvard Square, Hyde Park and the D.C. Beltway. These are not places where one learns ‘how ordinary people live.’  Ms. Kagan is likewise a surprising choice because she lacks judicial experience.  Most Americans believe that prior judicial experience is a necessary credential for a Supreme Court justice. … Ms. Kagan failed to answer many questions posed by senators prior to her confirmation as solicitor general. This failure led many members to oppose her nomination. I hope that she will now more willingly respond to reasonable and relevant questions.”
  • In an e-mail statement, RNC Chairman Michael Steele wrote: “The president has stated repeatedly that he wants a justice who will understand the effects of decisions on the lives of everyday Americans. But what Americans want is a justice who will stay true to the Constitution and defend the rights of all Americans, adhering to the rule of law instead of legislating from the bench. Given Kagan’s opposition to allowing military recruiters access to her law school’s campus, her endorsement of the liberal agenda and her support for statements suggesting that the Constitution “as originally drafted and conceived, was ‘defective,’ you can expect Senate Republicans to respectfully raise serious and tough questions to ensure the American people can thoroughly and thoughtfully examine Kagan’s qualifications and legal philosophy before she is confirmed to a lifetime appointment.”
  • In a post at Judicial Network, JN founder Carrie Severino wrote: “President Obama has nominated Solicitor General Elena Kagan to replace Justice John Paul Stevens on the Supreme Court. Obama wants to pack the court with reliable liberal votes to rubber-stamp an agenda that he knows the American people would not accept. What better way than to appoint a loyalist from his own Department of Justice with a thin public record to advance his leftist legacy through the Court. … Ever since her efforts to get on the D.C. Circuit were stymied for fear of her extremist views, Kagan has bent over backwards to avoid taking public positions on hot-button topics.”
  • Also at Judicial Network, David McIntosh, co-founder of the Federalist Society and former congressman from Indiana wrote: “Ms. Kagan’s public comments should be highly disturbing to all Americans as they show what kind of a Justice she will be. She has been a vocal opponent of military recruiters on the Harvard Law School campus, placing political correctness above national security in a time of war. Ms. Kagan abandoned the will of the American people and the Congress by challenging the Defense of Marriage Act, proving she will merely rule based on her personal political preferences and not the law. President Obama has, once again, nominated an individual who places a higher premium on political progressivism than adherence to the set of laws that have made this country strong and free. For someone tragically inexperienced and activist, Ms. Kagan represents President Obama’s ideal of transforming the Supreme Court into a vehicle for social reform and judicial affirmative action.”
  • In an e-mail statement, Judicial Watch President Tom Fitton wrote: “President Obama’s nomination of Elena Kagan to the Supreme Court is irresponsible. Ms. Kagan is a liberal activist and political operative with no experience as judge. A Supreme Court nominee ought to have significant practical experience as a lawyer or a judge — especially a nominee for the nation’s highest court.  Her decision to throw the military recruiters off of the campus of Harvard Law School during a time of war shows she is far to the left of mainstream America. The fact that she continued to work in the Clinton White House after it became clear that President Clinton lied under oath raises questions about her ethical judgment. And her record, as spotty as it is, shows that Ms. Kagan is a committed liberal judicial activist.”
  • In an e-mail statement, House Minority Leader John Boehner of Ohio wrote: “Given her lack of judicial experience, or time spent as a practicing lawyer, other aspects of her record must be thoroughly examined, including her troubling decision to ban United States Armed Forces recruiters from Harvard Law School. As one liberal journalist wrote recently, ‘Barring the military from campus is a bit like barring the president or even the flag. It’s more than a statement of criticism; it’s a statement of national estrangement.'”
  • In an e-mail statement, Senate Majority Leader Mitch McConnell of Kentucky wrote: “The American people expect judges to apply the Constitution and laws of the United States fairly and impartially — as they are written, not how they could have been written but were not. Even though the president who nominates them has personal policy preferences, judges must not be a rubberstamp for any administration. Judges must not walk into court with a preconceived idea of who should win. Their job is to apply the law ‘without respect to persons,’ as the judicial oath states; it is not to pick winners or losers. Senate Republicans will have a vigorous debate on the importance of this principle. And we will diligently review the record of Ms. Kagan to ensure that she shares this principle and that she possesses the requisite experience to serve on the Supreme Court.”
  • In a post at CATO’s group blog, legal scholar and former George W. Bush White House staffer Ilya Shapiro wrote: “Kagan is certainly not the worst possible nominee from among those in the potential pool — that would’ve been Harold Koh, had President Obama been most inclined to appoint the first Asian-American justice — but others would have been better in various ways.  Although all Democratic nominees would be expected to have similar views on hot-button “culture war” issues like abortion, gay rights and gun control, Diane Wood is a renowned expert on antitrust and complex commercial litigation, for example, and Merrick Garland would almost certainly bring a stronger understanding of administrative law. Although some on the left are concerned that replacing Justice John Paul Stevens with Kagan ‘moves the court to the right,’ there is no indication that the solicitor general is anything but a standard modern liberal, with all the unfortunate views that entails on the scope of federal power. Another concern is her mediocre performance in her current position — the choices of which legal arguments to make from those available to her in defending federal laws in Citizens United and United States v. Stevens, for example, were not strategically sound – though she may well be better suited to a judicial rather than advocacy role.”
  • At National Review Online, legal scholar Ed Whelan wrote: “Kagan may well have less experience relevant to the work of being a justice than any justice in the last five decades or more. In addition to zero judicial experience, she has only a few years of real-world legal experience. Further, notwithstanding all her years in academia, she has only a scant record of legal scholarship.  Kagan flunks her own“threshold” test of the minimal qualifications needed for a Supreme Court nominee.”
  • Speaking to Politico, University of Colorado law professor Paul Campos said: “It’s absolutely imperative given her lack of a track record of any kind that she not be allowed to get away with this kind of ritual that people have engaged in … for the last 25 years where you get away with basically not saying anything. … We don’t have anything to judge her on.”

To find out how Liberals are reacting to the Kagan nomination, click here