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EDITORIAL: Kagan’s kabuki theater

Senate hearings expose broken confirmation process

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The most important question members of the Senate Judiciary Committee should ask Supreme Court nominee Elena Kagan is, "Who do you think you are kidding?"

The hearings process for high court nominees has become ritualized to the point that it is almost useless. Nominees are extensively coached to avoid voicing a real opinion. There is no intellectual give and take. Spontaneity is largely absent. Anyone who can reasonably keep his cool and regurgitate platitudes for a few hours can enjoy a lifetime appointment to the most important judicial body in the land.

Ms. Kagan is playing her expected role in the predictable manner. We saw the same kabuki dance during the hearings for Justice Sonia Sotomayor less than a year ago. When asked by the sympathetic Sen. Patrick J. Leahy, Vermont Democrat, if she agreed that "the Supreme Court decided in Heller that the personal right to bear arms is guaranteed by the Second Amendment of the Constitution against federal law restrictions," Ms. Sotomayor answered: "It is." Yet her answer to this obviously staged question was untruthful. On Monday, Justice Sotomayor joined the Supreme Court minority in saying that there is "nothing in the Second Amendment's text, history or underlying rationale that could warrant characterizing it as 'fundamental,' insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes." In other words, when she said the right to bear arms was guaranteed, she lied.

For her part, Ms. Kagan is equally dishonest when she says that she would approach her duty impartially. We know the intellectual milieu from which she has emerged. We know that her heart and mind are devoted to leftist causes and that she can be counted on to find rationales to further those aims in whatever cases come before the court.

During the Clinton years, she manipulated medical findings to support the argument for partial-birth abortion. As Harvard Law School Dean, she banned military recruiters from the school to support the radical homosexual agenda. She argued before the Supreme Court as solicitor general that laws that suppress the First Amendment are acceptable because "there has never been an enforcement action for books." Ms. Kagan is far from the mainstream of American culture, but completely within the radical intellectual current that threatens the future of the country.

When the president can nominate mediocre candidates for the high bench and expect the nominee to get through, it is proof that the confirmation process is broken. Ms. Kagan is a perfect example. She has no experience as a judge, a weak publication record, no evidence of being a leading legal scholar, and no reputation as a prominent intellectual. She does not deserve, and has not earned, such a high position of trust and authority. She certainly does not deserve the opportunity to have her offbeat opinions read into the law of the land.

Ms. Kagan is a symptom of the problems that many Americans see with the insular, exclusionary, elitist culture that dominates Washington, the academy and much of the media. Her nomination should be rejected, and the Senate should revise its procedures so that nominees are no longer allowed to disguise and distort - or even lie about - their true beliefs.

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