Deputy Director of the Center for Legal and Judicial Studies at The Heritage Foundation Robert Alt is scheduled to testify as a minority witness this Thursday before the Senate Judiciary Committee’s hearing on the nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States. Throughout the hearings, he and his colleagues will be providing real-time updates here at The Foundry.

5:56 PM – An Alienating Response on Inalienable Rights

Should we take Elena Kagan at her word when it comes to her thoughts on inalienable individual rights?  Under intense questioning from Senator Tom Coburn (R-OK) regarding her basic understanding of the political and legal ideals underlying the Declaration of Independence and Constitution, Kagan asserted that she had no opinion whatsoever on the topic of which individual rights qualify as natural or inalienable in character.

A legal scholar with no take on such a fundamental constitutional topic seems at best disingenuous and at worst frightening.  How can one effectively analyze and apply the Constitution without a firm grip on what basic freedoms underlie our founding documents and national social compact?  How can one effectively understand the original intent of the Framers without any opinion on the essential place of certain liberties within the American legal framework?

Kagan’s response brings to mind Senator Grassley’s insight from yesterday’s hearing concerning the essential nature of rights.  If one does not believe that there is a basket of natural, inherent and inalienable rights that exist independent of the Constitution, then one believes that all fundamental rights emanate from the government and can be denied or taken away by “Big Brother.”  Such a stance is not only chilling, but also antithetical to Thomas Jefferson’s assertion in the Declaration of Independence that all men are “endowed by their Creator with certain unalienable rights.”

Looking ahead, Kagan’s inability to identify any natural or inherent rights should make one question whether current rights will continue to strike her as unassailable and inherent in nature.  Will she consider the individual right to bear arms fundamental going forward? Will she consider the right to group political speech inalienable in the future?  Stay tuned…. (By Ben Keane)

3:20 PM – Kagan Manipulating a Medical Opinion to Achieve Political Ends

One of the overarching narratives pushed by supporters of Elena Kagan is that she can and has been able to divorce her significant political activities from her legal judgment.  Since she has never been a judge, the public cannot read her opinions to see if she fairly and impartially applies the facts to the law and is capable of rendering a judicial decision devoid of political leanings.  However, according to her supporters, her impressive career demonstrates that she is a uniquely qualified candidate for the high court and capable of separating her liberal progressive policy preferences from sound legal judgment.

Shannen Coffin’s op-ed in today’s National Review is a must read, as it demonstrates beyond any doubt the extent to which Kagan’s political activities are inextricably intertwined with her professional use of facts and law to further political ends.

As a lawyer and deputy assistant to the president for domestic policy in the Clinton White House in the 1990’s, Kagan wrote memos to White House counsel Jack Quinn on the issue of partial-birth abortion (PBA) as it related to Nebraska’s then-existing ban on the procedure.

Coffin’s op-ed demonstrates how Kagan manipulated the language from a “select panel” of the American College of Obstetricians and Gynecologists (ACOG).  The select panel task force originally had written of the procedure that they “could identify no circumstances under which this procedure…would be the only option to save the life or preserve the health of the woman.”  This is important because under Supreme Court precedent, a state cannot regulate abortion post-viability where such procedure is necessary, in appropriate medical judgment, for preservation of the life or health of the mother. This “no circumstances” factual assessment by an expert organization would therefore impair the ability of challengers of the law to claim that there was a necessity for a health exception..

For some reason, ACOG shared their draft language with the Clinton White House.  Kagan knew of ACOG’s medical opinion regarding PBA because ACOG met with White House officials in July 1996 and told the administration, memorialized in a Kagan memo, that “in the vast majority of cases, selection of the partial birth abortion procedure is not necessary to avert serious adverse consequences to a woman’s health.”  Upon receiving ACOG’s task force language, Kagan drafted another memo to her boss, stating, “This, of course, would be [sic] disaster—not the less so (in fact, the more so) because ACOG continues to oppose the legislation.”

Rather than accept the medical professionals’ expert opinion that PBA was not the only option—a position where the facts might have gotten in the way of a desired legal argument and a political end—Kagan instead drafted another memo captioned “Suggested Options” proposing that ACOG include the following language: “An intact D&X (medical terminology for a PBA), however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of the woman.”

Kagan’s suggested language was adopted verbatim by ACOG, and added to their statement regarding PBA.  ACOG’s statement was used, predictably, by proponents of PBA and opponents of Nebraska’s ban on PBA.  More to the point, as Coffin points out in a National Review Online blog post today, “it was Kagan’s specific language that the Supreme Court seized upon in striking down the Nebraska ban…The Court relied on ACOG’s policy statement (which ACOG expanded on in its amicus brief) to find a division of medical opinion.”

When Senator Hatch today asked Kagan whether she wrote the “disaster” memo, she had to admit she did, but then brushed it off stating that she was simply attempting to assist ACOG in drafting a full and complete statement of their policy.

Shannen Coffin, in yet another post, explains how that is not a credible statement here.

It remains to be seen whether any other senators will take up this particular issue, but chances are they will.  More broadly, this episode demonstrates that there are open questions as to whether this nominee can actually divorce her strong political inclinations and legal experiences from her duties as a Supreme Court justice.
(By Cully Stimson)

12:20 PM – Leahy Continues to Mischaracterize Kagan’s Violation of Federal Law

In his unseemly and unfair “rebuttal” a few minutes ago of Ranking Member Jeff Sessions’s latest round of questioning, Chairman Pat Leahy continues to mischaracterize what Kagan did to violate the federal Solomon Amendment when she was dean of Harvard Law School.  No one is arguing that Kagan violated federal law by imposing an outright ban on military recruiters on the Harvard campus.

Rather, Kagan violated federal law by refusing to enforce the law requiring her to provide full on-campus access to military recruiters on the same, customary basis that was afforded to other recruiters.  The Solomon Amendment required all universities to provide the same access to on-campus military recruiters that was afforded to any other organization as a condition for receiving federal funding.

She imposed her illegal policy almost immediately after taking over from her predecessor.  Her predecessor’s policy had allowed full and equal access to military recruiters.

Without even going into Kagan’s work as dean of Harvard Law School to coordinate and support the protest against on-campus military recruiting, the fact that her policy violated federal law is clearly demonstrated by this: She had to reverse it immediately when the government threatened to enforce the Solomon Amendment by cutting off Harvard’s federal funding.
(by Brian Walsh)

11:45 AM – The Kagan Catch
Elena Kagan, the Obama White House, and the liberal senators supporting her have created a catch, a catch they apparently hope will make it impossible to vet Ms. Kagan’s actual views, her likely judicial philosophy, and her fitness for the Supreme Court. A popular online dictionary defines a Catch-22 as a condition or regulation “preventing the resolution of a problem or situation; [a] catch.” Here’s how Kagan and her powerful supporters set up the catch.

First, they incredibly and implausibly argue that her complete lack of experience as a judge – and her severe lack of experience practicing as an attorney in court – are irrelevant to the question of whether she is qualified to serve as a judge on the highest court of the land. No one can question her lack of qualifications, they argue and suggest, because she has tons of alternative “real-world experience.”

Second, Kagan and her supporters claim that nothing she has in fact said or done in the past – as a political lawyer striving to reach political outcomes favoring powerful political interests – has any bearing on how she would decide cases as a Supreme Court justice.

It supposedly makes no difference, Kagan and her powerful supporters claim, that she cavalierly and routinely picked between the parties whose Supreme Court cases she vetted as a law clerk and decided who should be the winners and losers – who were the “good guys” and “bad guys.” It supposedly has no bearing on her fitness that she praised radically activist Israeli judge Aharon Barak as “a great, great judge” and one of her personal “heroes.” It supposedly cannot be taken into consideration that one of her few academic writings praised liberal activist Supreme Court Justice Thurgood Marshall, who infamously said that a judge should “do what’s right, and let the law catch up.”

The Kagan catch is that conservative senators cannot question her lack of judicial experience, nor may they rely on her actual words and acts to determine her fitness for the Supreme Court.

Not only is this a catch, it is a complete inversion of Kagan’s own standard, in which she claimed that Supreme Court nominees with thin records such as her own should be subjected to more searching scrutiny and be expected to be far more open and forthright about their views. Not considering ourselves bound by the Kagan catch, we assert that such hypocrisy about the standards that should be applied to oneself should be granted great weight in determining whether a nominee is deserving of a seat on our most important court of law.
(by Brian Walsh)

11:10 AM – Kagan and the Legal Progressives
Yesterday, in response to questions from Senator Sessions and others, Kagan said that she did not know what the term “progressive” meant. More specifically, when Senator Sessions asked her whether Ron Klain was right when he said that she is “clearly a legal progressive,” Kagan responded that she did not know what a “legal progressive” is.

Kagan’s response is, at best, puzzling. Multiple legal progressives are on the faculty of every leading law school, including Harvard. In 2005, a conclave of liberal and “progressive” law professors gathered at Yale Law School and tried to imagine a legal future free of those textualists and originalists who, progressives claim, have it so wrong. The result of that gabfest was a book, The Constitution in 2020, a collection of 27 essays in which the authors “look[] to our collective past to imagine our collective future.” The contributions come with titles like “A Progressive Perspective on Freedom of Speech” by Yale’s Robert Post, “Progressives, the Religion Clauses, and the Limits of Secularism” by UNC’s William Marshall, “A Progressive Reproductive Rights Agenda for 2020,” by Indiana’s Dawn Johnsen, a withdrawn nominee for head of the Office of Legal Counsel at the U.S. Department of Justice, and “Progressive Constitutionalism and Transnational Legal Discourse” by Georgetown’s Vicki Jackson.

The repeated use of the word “progressive” throughout the legal academy and the geographic distribution of these specific authors show that the progressive legal movement is neither small nor hidden. The buzz in the legal academy alone should have given Kagan some idea of what a “legal progressive” is.

More to the point, five of the contributions to The Constitution in 2020 were by professors who were or are at Harvard: Yochai Benkler, Noah Feldman, Frank Michelman, Cass Sunstein, and Mark Tushnet. It seems strange that Dean Kagan did not know about the legal progressivism at her school. If she had been the least bit curious, Kagan could have asked one of her own faculty members about it.

One way or another, Kagan’s statement that she doesn’t know what a “legal progressive” is just doesn’t add up. (by John Park)

10:50 AM – Kagan’s Answers Show She Would Rubberstamp Obamacare’s Individual Health Insurance Mandate
In questioning by Senator Cornyn (R-TX) and Senator Coburn (R-OK) yesterday, Kagan came as close as she has come to providing a direct answer exposing her judicial philosophy. She showed that she would indeed rubber-stamp almost any part of the Obama agenda that Congress enacts. This of course has momentous implications for the Obamacare’s mandate that individuals purchase government-approved health insurance.

In Kagan’s view, Congress can mandate even what we eat each day. Coburn asked Kagan whether the Constitution allows Congress to require us “to eat three fruits and three vegetables every day.” This is, of course, analogous to what this liberal Congress and President Obama did when they passed and signed into law the individual health care mandate.

Kagan did not emphasize that, when the American people ratified the Constitution, they created a government of limited powers. Nor did she emphasize that Congress has only those powers expressly listed in the Constitution.

Instead, she emphasized certain cases in which liberal activist Supreme Court justices expanded the reach of the Commerce Clause of the Constitution. It now covers almost anything that has any conceivable connection to commerce – no matter how weak and attenuated that connection may be. She also emphasized that these activist decisions set the precedent of granting great deference to Congress even when it goes far beyond the bounds that the American people and the Constitution set on government.

It should not be difficult to understand what her answers mean for how she would decide on the unprecedented and unconstitutional individual health insurance mandate were she be to confirmed to the Supreme Court. (by Brian Walsh)