Oppose Kagan Now

Should the Supreme Court use foreign law to interpret the U.S. Constitution? Elena Kagan, Obama’s nominee to the Supreme Court, thinks so. And the Democrats in the Senate with 4 Republicans hope to have her approved by August 6.

In 1995, Elena Kagan decried the judicial nomination process declaring that it had taken “on an air of vacuity and farce.” According to her review of Stephen Carter’s book, “The Confirmation Mess,” the Supreme Court nomination debate should focus on “the understanding of the Constitution that the nominee would carry with him to the court.” She has since changed her mind as can be seen by her performance at the Senate Judiciary Committee.

Senator Roger Wicker of Mississippi wrote, “In her testimony before the Senate Judiciary Committee, Ms. Kagan acknowledged that it is ‘difficult to take off the advocate’s hat and put on the judge’s hat.’ I do not have confidence that Ms. Kagan would be able to restrain her personal views and political advocacy from influencing her decisions if she were confirmed to a lifetime position on the Supreme Court.”

When Ms. Kagan became the Dean of Harvard Law School, the school permitted military recruiters to use the campus recruiting facilities. Rather than continuing the present policy, she reinstated a previous dean’s policy breaking federal law and denying the military access to Harvard’s recruitment facilities.

She ignored precedence when she eliminated Harvard Law School requirements to study constitutional law and demanded that the curriculum require international and comparative law.

Her praise of Judge Barak Aharon’s judicial views (see our earlier post) shows that she will be a judge who will ignore what the Constitution says and give as much weight to foreign law as American. American freedom and American sovereignty will suffer. Barack Obama’s desire to radically change America will take a giant step forward.

To make your opinion known you can call your U.S. Senators now at 202-224-3121.

Kagan Nomination Threatens American Sovereignty

Elena Kagan on the Supreme Court would be a threat to American sovereignty. She would move the U.S. Supreme Court further left.

Just look at what she has done and said:

 She unabashedly acclaims a foreign judge known for judicial activism as her hero.

 As the Dean of Harvard’s Law School, she denied U.S. military recruiters access to Harvard Law School campus facilities even though she broke Federal law by denying access. Her position was even overwhelmingly rejected by the U.S. Supreme Court in an 8-0 decision with even Justice Ruth Bader Ginsburg opposing Kagan’s position.

 While at Harvard Law, she excluded Constitutional Law as a course requirement while requiring International and Comparative Law.

 In 2005, she supported the terrorists’ petition to civil review denouncing efforts to try terrorists in military tribunals. . She and three other liberal law school deans compared Congress’s bipartisan effort to clarify the laws on the War on Terror with the “fundamentally lawless” actions of a “dictatorship.”

 In the words of an Obama White House legal counsel, “She is largely a progressive in the mold of Obama himself.”

And let’s look in more detail at Elena Kagan’s praise – in her own words -- for that foreign judge Aharon Barak:

“I told [the judge], and I want to repeat in public, that he [Aharon Barak] is my judicial hero. He is the judge or Justice in my lifetime whom [sic], I think, best represents and has best advanced the values of democracy and human rights, of the rule of law and of justice.”

However, according to Seventh Circuit Judge Richard A. Posner, her model is an interventionist and judicial activist, one who considers legal interpretation to be fluid and “dynamic.” For Aharon Barak, the wording of a statute can take on “new meaning.” Posner writes:

“[o]ne of the most prominent of the aggressively interventionist foreign judges….[H]is book on judging is Exhibit A for why American judges should be wary about citing foreign judicial decisions…. Although Barak is familiar with the American legal system and supposes himself to be in some sort of sync with liberal American judges, he actually inhabits a completely and, to an American, weirdly different juristic universe.…”

Justice Richard Goldstone who was the chief prosecutor for criminal tribunals in Rwanda and the former Yugoslavia concurs with Judge Posner and writes that, “[Aharon Barak] is unashamedly what, in U.S. terms, would be regarded as an ‘activist judge.’ ” Aharon Barak’s words confirm that a judge can practically generate a new law:

“The judge may give a statute a new meaning, a dynamic meaning, that seeks to bridge the gap between law and life’s changing reality.... The [wording of the] statute remains as it was, but its meaning changes, because the court has given it a new meaning....”

Elena Kagan’s praise of Barak needs to be investigated by the Senate. Is this the kind of U.S. Supreme Court Justice she would be?

If you can believe what Kagan says and writes, she would be an activist judge who thinks the Constitution has no fixed meaning and foreign laws should be given weight in determining what the U.S. Constitution means. This is not a nomination that bodes well for the Supreme Court, for the Constitution and for the liberties that Americans have enjoyed because of that Constitution.