In the wake of the passing of Senator Robert Byrd, the Supreme Court is front and center today with a number of major decisions being released from the high court and the Elena Kagan Supreme Court nomination hearing starting up at the same time.
GOP Senators hammered Solicitor General Kagan, a former dean of the Harvard Law School, taking issue with her political activism of liberal Democrat causes and her lack of judicial experience.
“The Bork hearings were the best thing that ever happened to constitutional democracy,” was a quote that Senator Tom Coburn, Oklahoma Republican, reminded Ms. Kagan she had said back in 1997.
Senator Jeff Sessions, Alabama Republican and ranking member of the Judiciary Committee, mentioned that while Ms. Kagan “has numerous talents and good qualities” he listed his concerns about her, including: her college thesis on socialism in New York “that seems to bemoan socialism’s demise there,” that Ms. Kagan has never tried a case before a jury, and that she spent time drafting legislation that would keep military recruiters off college campuses.
While Senator John Cornyn,Texas Republican, repeatedly criticized those nominees who “have expressly rejected activist views” but turned around later following their confirmation and “changed their tune,” Democrats on the committee flew to Ms. Kagan’s defense. “Our Supreme Court is badly in need of someone of your skill,” said Senator Dick Durbin, Illinois Democrat, citing his criticism for the court’s recent decision to strip down the McCain Feingold campaign finance reform law.
That was not the only time Democrats on the committee jabbed back at the 5 – 4 Citizens United Supreme Court decision. Senator Dianne Feinstein, California Democrat, lamented over today’s high court decision that expanded the previous Supreme Court Heller decision from 2008 (regarding second amendment rights) to the rest of the nation.
Like others in his party, Senator Benjamin Cardin, Maryland Democrat, in his opening statement, made it appear as if former Supreme Court Justice Thurgood Marshall, whom Kagan clerked for in 1988 was the nominee at times. “Justice Thurgood Marshall said in a 1987 speech, ‘I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today.’” recited the senator form Maryland.
S.G. Kagan had been stone faced quiet for the majority of the hearing on Monday. She had her turn to speak today through her opening statement later. Gary Marx of the Judicial Confirmation Network responded to Ms Kagan’s remarks:
“I’ve received a copy of Elena Kagan’s prepared opening statement (which she will deliver this afternoon). It’s an elegant statement in which Kagan sounds the themes of impartiality and judicial restraint. (On first read, I didn’t find any reference to President Obama’s “empathy” standard.) What she actually means by her words and how those themes can be reconciled with her pattern of support for liberal judicial activism is another matter.”
Supreme Court Justice Sonia Sotomayor had a tough confirmation hearing, but Ms. Kagan brings with her political baggage far beyond what Justice Sotomayor brought to the table. Expect to see Clinton controversies brought to light again, Kagan’s views on our armed forces, Kagan’s views on partial birth abortion, and her work on drafting legislation for the Democratic party.