The ACLU has issued a lengthy Report, which says it is not an endorsement, on Elena Kagan's nomination to be an Associate Justice of the Supreme Court. Far from establishing why she should be confirmed, the Report offers ample evidence why she should not be confirmed, and placed in a position where she is expected to protect and defend the Constitution.
The facts for this article, but certainly not the legal conclusions, come from an ACLU Report on the qualifications of Elena Kagan to be an Associate Justice of the US Supreme Court. Although the ACLU piously proclaims that it "does not endorse" judicial nominees, the Report is superbly crafted to hide the critical reasons why Kagan may be totally unfit for the position for which she is about to be confirmed.
The first example that the ACLU is shilling for Dean Kagan comes when it asserts that her "intellect and knowledge of the law are amply demonstrated by her record... and are acknowledged even by her critics." Does she have a keen legal mind? Yes, no doubt. But what is her knowledge of "the Supreme law," as the Constitution describes itself?
Has she directed her legal skills to the enforcement and protection of the Constitution? Or, has she done the opposite, directing her skills toward the subversion and defeat of the Constitution?
There is a limited paper record for this non-judge nominee. However, there are points at which she took positions as a legal advisor to President Clinton and as Solicitor General under President Obama, which suggest strongly that she considers the Constitution as a variable in the hands of wise judges, who can and should change its terms as needed in modern times. The ACLU tries to dig her out of this position by saying that the positions she took as Solicitor General and as a member of the Domestic Policy Council were taken "on behalf of her client" and "do not necessarily reflect the positions she would take as a Justice...."
The simple truth is that Presidents do not appoint people to high advisory positions or executive positions in the White House unless they are reasonably sure that those individuals agree with the President's views. And Presidents are quick to fire such individuals if and when it becomes clear that they do not agree with the President on essential issues. Dean Kagan served in high positions, at will, under two Presidents. She would not have been in those positions in the first place unless she agreed with the views of Presidents Clinton and Obama that in some cases the Constitution is an obstacle to get around, rather than a law to be obeyed.
The ACLU seeks to make a virtue of Kagan's opposition to the majority decision in the Rust case. That 1991 decision, 5-4, decided that family planning clinics which received federal funding should not provide abortion referral or counseling. The Court found that there was "no right to receive federal funds" and that the First Amendment therefore did not apply.
Kagan's view on that case was that the cause of the protestors was just, and that the constitutional right of Congress to write its own spending laws should not stand in the way. She took exactly the same stand as Dean of Harvard Law, when she asked the courts to keep the federal money spigot open while her University deliberately and openly violated the terms of the funding law concerning military recruiters on campus.
The Report discusses Kagan's briefs and memos under the headings of Free Speech, Presidential Power, National Security, LGBT Rights (this is the catchall for rights of non-heterosexuals), Reproductive Rights, Racial Justice, Criminal Justice/Death Penalty, Religion and Immigration. In the few instances where Dean Kagan's words were not as far left as the ACLU on an issue, the ACLU analyzed her words and concluded that she either really didn't mean that, or that there is room for her to change her mind.
The Report makes clear that Kagan generally agrees with the ACLU that the Constitution should not stand in the way of socially valuable decisions by wise judges. Though the ACLU certainly did not mean it that way, this is reason enough why Elena Kagan should not be confirmed as an Associate Justice of the Supreme Court.
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