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The New York Times Questions Elena Kagan’s Liberal Bona Fides

Posted on May 11 2010 1:00 pm
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The New York Times questions whether Solicitor General Elena Kagan, President Obama’s choice to replace Justice Stevens on the Supreme Court, will fill Stevens’ left-wing judicial activist shoes.  Lets hope not, but it’s anybody’s guess. Without any time serving as a judge and no judicial opinions, Kagan’s public record on key issues likely to face her as a Supreme Court justice is scant.  Hence the title of today’s Times lead editorial:  “Searching for Elena Kagan.”

The Times is concerned that Kagan may turn out to be “to the right of Justice Stevens.”  However, as Bill O’Reilly asked last night on “The Factor,” what if she turns out to be in the same mold as the hard left Justice Ruth Bader Ginsberg who views the Supreme Court as her playground to impose her views of social justice?

Dick Morris, who served with Kagan in the Clinton White House, said on “The Factor” that the Kagan he knew was a moderate.  He expects her to be center-left as a justice.  Of course, Morris’ first-hand knowledge of  Kagan’s views is more than a decade old.  Since that time, as the dean of Harvard Law School, she took the law into her own hands by barring military recruiters from the campus in protest of the Clinton-initiated “don’t ask, don’t tell” policy.  She also wrote a Harvard Law Review article defending a robust assertion of executive power in the service of domestic progressive goals.  And even Morris conceded that when it comes to environmental issues, Kagan is way over on the left.

On the other hand, Kagan did bring in more conservative law professors while Harvard Law school dean and had a reputation for consensus-building.  More importantly, Kagan has shown some evidence that she at least understands the limits of judicial power.  For example, in written Senate testimony she said that courts should not take the lead in creating a more just society. She also said in her written testimony about the Constitution that:

The Constitution generally imposes limitations on government rather than establishes affirmative rights and thus has what might be thought of as a libertarian slant. I fully accept this traditional understanding.

With a constitutional philosophy like that, Ms. Kagan may be closer to the Tea Party than to President Obama himself on the constitutional limits imposed upon the exercise of government power.  But then again – probably not.

When I think of a Supreme Court justice without prior judicial experience who turned into a far left judicial activist, I think of Earl Warren.  He had worked for eighteen years as a prosecutor and was  governor of California.  President Eisenhower nominated Warren for the Supreme Court, which he later regretted.  It was the Warren-led court that pushed the envelope of  a “living Constitution” which justices were free to re-make in their own image of social justice.

Kagen needs to be thoroughly vetted in the Senate on such issues as her approach to defining constitutional rights, limitations on government power, entitlements as a human right, the relevance of international and other countries’ laws in deciding cases of constitutional interpretation, etc.

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