By Susan Brinkmann, OCDS
Leaders of the pro-life movement in America are voicing serious concerns about the views of Supreme Court nominee Elena Kagan on abortion, judicial activism and marriage.
Judie Brown, president of the American Life League, points out that during Kagan’s 2009 confirmation hearings for solicitor general, she claimed to have a deep adherence to stare decisis (established law) when it comes to ‘a women’s right to terminate her pregnancy,’ yet she has demonstrated her willingness to depart from established law in regards to homosexual issues.
“Kagan swore in the hearings to represent ‘with vigor’ interests of the United States ‘even when they conflict with my own opinions,’” Brown said in a May 10 press release. “Yet in August 2009, the Department of Justice under Kagan’s watch, filed a reply brief in a California case challenging the Defense of Marriage Act.”
Kagan has demonstrated a record of interpreting the law in the light of homosexual, pro-abortion activism, Brown says.
“What’s at stake here is the core constitutional question that passionately divides the country – does our Constitution seek human rights for all human beings or merely some human beings? Kagan’s answers to her 2009 confirmation hearings provide clear insight into her future judicial philosophy.”
Dr. Charmaine Yoest, president of the Americans United for Life (AUL), the nation’s premier pro-life legal group, also raised concerns about Kagan’s open admiration for activist judges who rewrite the law to suit themselves.
“AUL analysis shows that Kagan has contributed money to the National Partnership for Women and Families, a pro-choice organization with strong ties to Emily’s List and NARAL. She is an ardent abortion supporter, even arguing the federal government is subsidizing ‘anti-abortion speech’ when, in Title X, the federal government is prohibited from referring women for abortion. Ironically, her free speech sentiments do not extend to critics of aggressive activism. She has referred to those who call for respect and adherence to the Constitution ‘irresponsible’ and asserted that their criticism was ‘harmful to our constitutional system and to the value of a judiciary.”
We know that Kagan embraces judicial activism and abortion-on-demand, Dr. Yoest says, but it’s how she will turn these views into law that is mostly hidden to the American people.
“Kagan is a stealth candidate; a woman with an open and extreme philosophy but no track record on how she will implement her own judicial activism. Obama is taking too great a risk with America’s future with the Kagan pick.”
Douglas Johnson, Legislative Director of the National Right to Life Committee is also concerned about her propensity for judicial activism.
“There are troubling indications that Ms. Kagan generally favors an activist, results-oriented approach to constitutional law,” he said. “For example, in her 1995 law journal article, she wrote, ‘The bottom-line issue in the appointments process must concern the kinds of judicial decisions that will serve the country and, correlatively, the effect the nominee will have on the Court’s decisions . . . If that is too results oriented … so be it. . .’ She also wrote that ‘it should be no surprise by now that many of the votes a Supreme Court Justice casts have little to do with technical legal ability and much to do with conceptions of value.’”
Even though Kagan has no judicial experience and lacks a paper trail, the thin history she has in the courts since becoming Solicitor General last year has already produced some indication of her radical views.
“ . . .(S)he argued that the federal government has the power, under campaign finance laws, to ban certain books and pamphlets,” cited Tony Perkins, president of the Family Research Council.
“Responding to this argument of Ms. Kagan, Chief Justice John Roberts wrote, ‘As a free-floating test for First Amendment coverage, that (proposition) is startling and dangerous.'”
Kagan also found it difficult to be forthcoming during confirmation hearings last year, something that should not be tolerated this time around, when she is being considered for a permanent position on the nation’s highest court, Perkins said.
“Ms. Kagan has called for the Senate to use the Supreme Court confirmation hearings ‘to engage nominees in meaningful discussion of legal issues,’ and that a nominee’s views on issues are fair game to be discussed,” he said. “The U.S. Senate should evaluate her nomination by the very standards she set for this process. The Senate has a responsibility to present an accurate picture of her judicial philosophy before voting on her nomination.”
The president is pushing for a swift confirmation of Kagan, with hearings taking place this summer and concluding in time for her to be seated for the Court’s fall session.
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