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With Senate set to consider Kagan, Sen. Sessions blasts her 'expansive view' of federal power

August 2, 2010 |  8:51 pm

Jeff Sessions

Last month the nomination of Elena Kagan to the Supreme Court was approved by the Senate Judiciary Committee on a mostly party-line vote, 13 to 6. Only one Republican -- South Carolina's Lindsey Graham -- gave Kagan his support.

"But, yes, she's liberal," Graham said of the solicitor general when the committee voted July 20. "Sort of expected that, actually."Elena Kagan

One of the committee members voting against her was Sen. Jeff Sessions of Alabama, and he forcefully outlined his objections to her in a letter to his Senate colleagues Monday, a day before the full Senate is expected to begin considering Kagan, President Obama's second nominee to the high court.

Sessions raises many concerns, including what he called Kagan's "strident opposition to the don't ask, don't tell law" and her "alarmingly expansive view of the federal government's power."

Sessions also singles out her work on gun issues: "Next, Ms. Kagan's record regarding the 2nd Amendment leaves little doubt that she will be hostile to the rights of law-abiding citizens to own and possess firearms."

Here is the text of the senator's letter, as prepared by his office:

Dear Colleague,

The Senate soon will consider the nomination of Elena Kagan to be Associate Justice of the Supreme Court. I have fulfilled my commitment to participate in a fair and rigorous committee process. I now write to share my objections to this nominee and to encourage you to carefully review Ms. Kagan’s record. In my view, Ms. Kagan fails to meet the high standard for a Supreme Court appointment: an impartial commitment to the rule of law. Not only does Ms. Kagan have a troubling lack of legal experience as either a judge or a practicing lawyer, but her most extensive experience was as a policy maker or political lawyer.

Ms. Kagan’s lack of legal experience should be of significant concern to any Senator. She has less real legal experience than any Supreme Court nominee in 50 years. Ms. Kagan’s legal experience consists of only two years...

 

 

as a young lawyer in a large law firm, and roughly 14 months as Solicitor General. In light of this dramatic deficit, it is important to examine the actions she has taken during her career and to determine what that says about her possible career on the Court.

As Dean of the Harvard Law School, Ms. Kagan barred the military from the campus recruitment office, even as our troops risked their lives in two wars overseas. She did so in defiance of a federal law, the Solomon Amendment, which requires that the military receive “access… at least equal” to that of other employers. In fact, Solomon’s explicit equal access clause passed this chamber unanimously in 2004, one month before Ms. Kagan began blocking recruiters. Despite a clear record on this issue, Ms. Kagan testified during her hearing that the military had “full,” “excellent,” and even “complete” access during her tenure as Dean. Documents from the Pentagon, however, demonstrate that recruiters were “stonewalled,” and that banning them from the recruitment office was “tantamount to chaining and locking the front door of the law school.” During this contentious period, she filed briefs, spoke at protests, and sent campus-wide e-mails attacking the governmental policy.

Her actions were a grievous error, but one she oddly glossed over seemingly without any recognition of their importance. Remember, this was a large national issue, and Congress acted repeatedly to end these outrageous actions against the military.

Given Ms. Kagan’s history of strident opposition to the Don’t Ask Don’t Tell law, she was specifically asked at her confirmation hearing for Solicitor General whether she would be able to set aside her personal political views and defend that law. She testified that she would defend the law with vigor. However, after careful review, I have concluded that Ms. Kagan calculatedly did not challenge a Ninth Circuit ruling that significantly damaged and undermined Don’t Ask Don’t Tell. In so doing, I believe that she failed to fulfill her duty as Solicitor General and violated the pledge she made to the Senate.

I am also deeply troubled by Ms. Kagan’s record on partial-birth abortion. Documents from her tenure at the Clinton White House reveal that in 1996, President Clinton had initially decided to support a ban on all elective partial-birth abortions, with a health exception. But Ms. Kagan successfully convinced him that the procedure should be available more widely, and their policy should include elective abortions for “non-health related reasons.” She later reviewed and called a “disaster” a draft statement by the American College of Obstetricians and Gynecologists (ACOG), which concluded that partial-birth abortion was never the only option to save the woman’s life or health. She then provided ACOG with new language, which they inserted in the final statement, saying that partial-birth abortion may be the “best” procedure in certain circumstances. Despite this active record, Ms. Kagan testified that she “at all times” simply advanced “the President’s views,” not hers, and that “there was no way in which I would have or could have intervened” in ACOG’s medical views. It seems clear that she had strong feelings on this subject and worked to block the change.

Next, Ms. Kagan’s record regarding the Second Amendment leaves little doubt that she will be hostile to the rights of law-abiding citizens to own and possess firearms. During her time in the Clinton White House, she worked to advance President Clinton’s anti-gun agenda and even appears to have identified the NRA as a “bad” organization, placing it in the same category as the KKK. As a Supreme Court clerk, she dismissed a petitioner’s argument that the Washington, D.C. handgun ban violated his Second Amendment rights, saying only, “I’m not sympathetic.” Moreover, during her testimony before the Committee, Ms. Kagan would go no further than acknowledging that important Supreme Court decisions in Heller and McDonald are “precedent,” using language similar to that used by now-Justice Sotomayor during her confirmation testimony. After her confirmation to the Court, Justice Sotomayor joined a dissenting opinion which would have undermined the Second Amendment by holding that the right to keep and bear arms is not a fundamental right.

Finally, Ms. Kagan appears to take an alarmingly expansive view of the federal government’s power. In fact, at her hearing, she was unable to identify a single meaningful limit on federal government power under the Commerce Clause. As the federal government continues to expand in both scope and size, we need Justices who recognize and are willing to enforce the limitations the Constitution places on the federal government. Given that Ms. Kagan apparently does not recognize those limitations, it is clear that she would not enforce them.

The judicial confirmation process is, in large part, about exploring and understanding a nominee’s judicial philosophy. Those who know and have worked with Ms. Kagan have said in no uncertain terms that she is a legal progressive. Her close friend and former colleague, and now Chief of Staff to Vice President Biden, Ron Klain, said she is “clearly a legal progressive… [and] comes from the progressive side of the spectrum. She clerked for Judge Mikva, clerked for Justice Marshall, worked in the Clinton administration, worked in the Obama administration. I don’t think there’s any mystery to the fact that she is, as I said, more of the progressive role than not.” Her own testimony and the evidence presented confirmed that. It is all but certain that, if confirmed, Ms. Kagan will bring to the bench a progressive activist judicial philosophy which holds that unelected judges are empowered to set national policy from the bench. That anti-democratic philosophy is contrary to the rule of law, and views the Constitution’s limits on and separation of powers as a roadblock to be evaded. Those who subscribe to it should not sit on the nation’s judiciary, much less the Supreme Court of the United States.

Her testimony and her history demonstrate a dangerous political approach to the law that is contrary to our magnificent heritage of an impartial judge who fairly decides disputes.

I have reached these conclusions based on an exhaustive examination of Ms. Kagan’s record, as well as her testimony before the Judiciary Committee. Please do not hesitate to contact me if you need any additional or more detailed information on this important nomination.

Very truly yours,

Jeff Sessions
Ranking Member
Senate Judiciary Committee

-- Steve Padilla

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Photos: Sen. Jeff Sessions (R-Ala.) and Solititor General Elena Kagan. Credit: Associated Press.

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