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EDITORIAL: Concerns about Kagan

- The Washington Times - Tuesday, May 11, 2010

When President George H.W. Bush nominated New Hampshire Judge David Souter for the U.S. Supreme Court, columnist George F. Will famously quipped that the nominee's thin, inscrutable record made him "an empty Souter." President Obama's high-court nominee, Elena Kagan, boasts an equally meager paper trail, but there are enough signs of extreme ideological leftism to suggest that the Senate should move cautiously in considering her confirmation.

Ms. Kagan certainly brings a number of admirable qualities to the table, yet she is far from the moderate her supporters claim her to be. During her student days at Princeton, for example, she wrote a column expressing the hope that "a new, revitalized, perhaps more leftist left will once again come to the fore." In 1993, she explained that it is a "thing of glory" for the Supreme Court to see its primary mission as "show[ing] a special solicitude for the despised and disadvantaged." She strongly opposed the federal Defense of Marriage Act, which passed the Senate overwhelmingly with the support of liberals like then-Sen. Joseph R. Biden Jr., Delaware Democrat.

As dean of the Harvard Law School, Ms. Kagan banned military judge advocate general recruiters from campus in protest of the military's "Don't Ask, Don't Tell" rules on open homosexuality. She called the carefully crafted rules "a moral injustice of the first order" and joined a brief asking the Supreme Court to overturn a law requiring campuses to be open to military recruiters - a position the high court unanimously rejected.

The incident has even troubled liberals such as former New Republic editor Peter Beinart, who wrote in the Daily Beast that "barring the military from campus is a bit like barring the president or even the flag. It's more than a statement of criticism; it's a statement of national estrangement."

While serving in the Clinton White House, Ms. Kagan was hip-deep in deliberations that stopped legal action against eco-terrorists who blocked logging operations in Oregon. Senators have every reason to demand answers regarding Ms. Kagan's precise role in interfering with this law enforcement matter.

Ms. Kagan has studiously avoided displaying her ideological colors beyond examples such as those cited above. Until becoming solicitor general of the United States last year, she had argued not a single case before the Supreme Court. She has never served as a judge at any level. Through her long academic career, she has written only three law review articles, a few short essays and two brief book reviews. University of Colorado at Boulder law professor Paul Campos has described these works as "lifeless, dull, and eminently forgettable."

Thirty-one senators are on record voting against Ms. Kagan's confirmation as solicitor general. The standards for the Supreme Court obviously should be higher than for her current position. There is good reason for all 31, and more, to take at least a skeptical view of Ms. Kagan's suitability for the highest court in the land.