Elana Kagan, the controversial Obama appointment to the Supreme Court was approved by Senate Judiciary Committee in 13-6 vote that fell mostly along party lines. All Republicans opposed the nominee except for Sen. Lindsey Graham (R-S.C.).
It is expected that Kagan, replacing retiring Justice John Paul Stevens, will be confirmed by the Senate in early August giving the nine member court four Democratic appointees and three female justices. The report also points out that none of the women will be Protestant.
Kagan’s accomplishments are impressive. She (50) was born into a Jewish middle class family and holds degrees from Princeton, Oxford and Harvard where she earned a law degree (1986). Kagan was a law clerk for Supreme Court Justice Thurgood Marshall (1988) and served as an Associate counsel to Bill Clinton (1995-1996). After a short career as a Harvard law Professor (1999-2003), Kagan became the first female Dean of the Law School (2003-2009). She then won Senate confirmation as Solicitor General (2009) close to party line approval yet never argued a case at trial before the appointment. Obama selected Kagan in May (2010) for the U.S. Supreme Court.
While the Senate Judiciary decision was expected to favor Kagan, Graham’s vote has infuriated many conservatives who point to Kagan’s questionable positions.
Not a few voices have spoken out against Kagan. In a last effort to garner public opposition, former surgeon general C. Everett Koop urged a no vote on the Supreme Court nominee.
Koop (93) called Kagan’s efforts to convince the American College of Obstetrics and Gynecologists that partial birth abortion as medically necessary, “unethical” and “disgraceful”. Kagan lobbied to change the language of the medical group. “She was willing to replace a medical statement with a political statement that was not supported by any existing medical data.” Koop finds partial-birth abortion unnecessary as does ACOG. “In my many decades of service as a medical doctor, I have never known of a case where partial-birth abortion was necessary.”
Charmaine Yoest, head of the anti-abortion group Americans United for Life, also opposing the nominee observed Kagan’s “apparent willingness to distort the record” in order to obtain “the political outcome she wanted.”
Koop and Yoest cite handwritten notes Kagan made on a draft of the doctors’ policy statement when she served then-president Bill Clinton.
While Orrin Hatch (R-UT) and other Republican Senate Judiciary Committee members expressed concern about Kagan’s distortion, Graham viewed the appointment as a Constitutional issue.
NEST contacted Graham’s office regarding the appointment. According to an aide, the Senate Judiciary committee merely acts in an “advise and consent” role considering the “qualifications” of the nominee. “That was the basis of Graham’s decision.”
Graham’s website cites the Constitutional and historical role the Senate has played in Supreme Court nominations.
“The Constitution puts a requirement on me, as a senator, to not replace my judgment for the President’s,” said Graham. “I’m not supposed to think of the 100 reasons I would pick somebody different. It puts upon me a standard that stood the test of time: Is the person qualified? Is it a person of good character? Are they someone that understands the difference between being a judge and a politician? And, quite frankly, I think she’s passed all those tests.” “Are we taking the language of the Constitution that stood the test of time and putting a political standard in the place of a constitutional standard?” asked Graham. “Objectively speaking, things are changing, and they’re unnerving to me. The court is the most fragile of the three branches. So while it is our responsibility to challenge and scrutinize the court, it is also our obligation to honor elections, respect elections, and protect the court.”
“I view my role as a United States Senator in part by protecting the independence of the judiciary, and by making sure that hard-fought elections have meaning in terms of their results within our Constitution,” said Graham. “At the end of the day, Ms. Kagan is not someone I would have chosen, but I think she will serve honorably.”
Dissenting Republicans also cited Kagan’s inexperience as a trial lawyer and judge. In an exchange between Senator Tom Coburn and Kagan during hearings leading up to her appointment as Solicitor General (2009), the matter of her inexperience came up.
“As a physician, I don’t send patients to the professors at the university unless they’re the expert in the field who have actually practiced rather than just talked,” Senator Tom Coburn, Republican of Oklahoma, told Ms. Kagan, who at that point had never argued in any appeals court.
“I wonder how you respond to the criticism of this wonderful résumé you have but yet you have never been a justice, and you have never actually been a litigant?” Mr. Coburn asked.
Ms. Kagan said she would bring to the job a lifetime of legal study and strong analytic skills. She added: “I think I bring up some of the communications skills that has made me, I’m just going to say, a famously excellent teacher.”
Other issues have also surfaced as Kagan has been more carefully scrutinized. Chaplain Gordon James Klingenschmitt, with the “Pray In Jesus Name Project,” reviews Kagan’s radical appointments while Dean at Harvard Law School.
First, “Kagan recruited former ACLU lawyer (and former ACT-UP activist) William Rubenstein to teach ‘queer’ legal theory [at Harvard]. Few Americans can comprehend the radical nature of ‘queer’ academics. Rubenstein described one of his courses as taking up ‘newer identities (bisexuality, trans, genderf***)’ as well as ‘polygamy, S&M, the sexuality of minors.’”
Second, “Kagan promoted and facilitated the ‘transgender’ legal agenda during her tenure at Harvard. In 2007, HLS offered a Transgender Law course by ‘out lesbian’ Professor Janet Halley and Dean Spade, a transsexual activist attorney. Halley’s extremism and contempt for natural gender boundaries is illustrated by her calling herself a ‘gay man.’ Kagan also brought in Cass Sunstein (currently Obama’s regulatory czar) who has written in support of polygamy and other free-for-all marriage relationships.”
The report also observed that “Kagan’s administration forced Blue-Cross, Blue-Shield to pay for sex-change operations as a benefit for students as Dean of Harvard Law.”
In his appeal letter to block the appointment, Chaplin Klingenschmitt asked Senators to consider, “how many homosexual law clerks will Kagan recruit, to influence the paper-flow, case selection, documentation, and decisions made at the Supreme Court? And how many of those will eventually become biased federal judges ruling America? How fast will Kagan take America to the same depraved depths she took Harvard Law?”
With Judiciary Senate Committee approval now completed, the last stop is the August confirmation.
By John M. DeMassa
July 23, 2010
