Judiciary

Supreme Court Sleeper Agent: Elena Kagan

Elena Kagan, the President’s pick to replace retiring Supreme Court Justice John Paul Stevens, is an affable and intelligent Trojan horse.

Obama’s high court nominee has been groomed for years, standing ready for the judicial mission of advancing the secular-progressive agenda, if confirmed, for decades to come.

Conservatives can (and must!) build a coalition to defeat Kagan’s nomination.

Doublespeak Déjà Vu

As Obama’s nominee last year for U.S. solicitor general, Kagan expertly muddied the waters. While she discounted every controversial position she’s ever taken, Kagan did not, strictly speaking, disavow any.

For example, as dean of Harvard Law School in 2003, Kagan condemned military recruiting policy as a “moral injustice of the first order,” and signed two amicus briefs seeking to strike down the Solomon amendment, the law President Clinton signed to prohibit taxpayer funding for schools that bar military recruiters.

Yet, Kagan told the Senate Judiciary Committee during her 2009 hearings for solicitor general: “Had I been solicitor general at the time that the 3rd Circuit held the Solomon amendment unconstitutional, I would have sought certiorari in the Supreme Court.” 

Kagan’s 2009 back peddle continued, “Indeed, this would have struck me as an easy case: A federal statute had been invalidated on constitutional grounds and there were clearly reasonable arguments that could be made in its defense.” 

The Supreme Court unanimously upheld the Solomon amendment as constitutional in 2006. Even former ACLU attorney Ruth Bader Ginsburg, whose high court nomination Kagan helped shepherd for the Clinton administration, dismissed Kagan’s radical arguments against the law of the land.

While clerking at the Supreme Court in 1987 for liberal Justice Thurgood Marshall, Kagan authored a memorandum arguing religious groups should never receive taxpayer funding to encourage abstinence and assist pregnant teens:

“It would be difficult for any religious organization to participate in such projects without injecting some kind of religious teaching … when the government funding is to be used for projects so close to the central concerns of religion, all religious organizations should be off limits.”

And, how did Kagan represent her memo in 2009, despite the emphasis she originally included? “The dumbest thing I’ve ever read.”

If Kagan’s obfuscations remind you of how Barack Obama handled Jeremiah Wright, you’re not wrong.

‘Mainstream Media’ Head Fakes

Efforts to frame Kagan as a moderate have been going full-steam for some time, especially among the talking-point authors who frame the battle for their media brethren. 

Take, as evidence, how quickly liberal military veterans from Harvard Law School rushed to Kagan’s side when her record regarding the Solomon amendment came to light during her solicitor general nomination. Or, more recently, several long narratives at Salon.com from Glenn Greenwald, whom Forbes magazine ranks as one of “The 25 Most Influential Liberals In The U.S. Media.” 

Greenwald has for weeks been disingenuously fretting over Kagan’s lack of progressive ‘street cred,’ which prompted, among others, Mother Jones, The New Republic, and CBS News to repeat his mantra without question before President Obama’s formal high court announcement.

And, not to be outdone in this exercise, this past Saturday Ruth Marcus incredulously lamented in the Washington Post, “Barack Obama could well end his first term with a more conservative Supreme Court than the one he inherited.”

The Bork Paradigm

In reviewing Steven Carter’s book The Confirmation Mess in 1995, Kagan wrote:

“The kind of inquiry that would contribute most to understanding and evaluating a [Supreme Court] nomination is the kind Carter would forbid: discussion first, of the nominee’s broad judicial philosophy and, second, of her views on particular constitutional issues… When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.”

From the nominee’s lips to the Senate’s ears; ladies and gentlemen, start your engines!

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