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Michael van der Galien

George F. Will Asks Vital Questions SCOTUS Nominee Elena Kagan Needs to Answer

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Posted on June 28 2010 3:00 pm
Michael van der Galien was born in the Dutch city of Leeuwarden in 1984. For as long as he can remember, he has been obsessed with the United States. When he was 17 years old, he started blogging - of course about America. His articles have been published at Big Hollywood, Pajamas Media, Hot Air (the GreenRoom) and Right Across The Atlantic. He's also an editor for the Dutch conservative blog, De Dagelijkse Standaard.
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Conservative Washington Post columnist George F. Will has listed some important questions conservative  members of the U.S. Senate have to ask Elena Kagan, Obama’s nominee to the Supreme Court. It’s a good list. Here are some of the best questions on it:

  • Regarding campaign finance “reforms”: If allowing the political class to write laws regulating the quantity, content and timing of speech about the political class is the solution, what is the problem? If the problem is corruption, do we not already have abundant laws proscribing that?
  • Some persons argue that our nation has a “living” Constitution; the court has spoken of “the evolving standards of decency that mark the progress of a maturing society.” But Justice Antonin Scalia, speaking against “changeability” and stressing “the whole antievolutionary purpose of a constitution,” says “its whole purpose is to prevent change — to embed certain rights in such a manner that future generations cannot readily take them away. A society that adopts a bill of rights is skeptical that ‘evolving standards of decency’ always ‘mark progress,’ and that societies always ‘mature,’ as opposed to rot.” Is he wrong?
  • The 10th Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”) is, as former Delaware governor Pete du Pont has said, “to the Constitution what the Chicago Cubs are to the World Series: of only occasional appearance and little consequence.” Were the authors of the Bill of Rights silly to include this amendment?
  • Justice Thurgood Marshall, for whom you clerked, said: “You do what you think is right and let the law catch up.” Can you defend this approach to judging?
  • You have said: “There is no federal constitutional right to same-sex marriage.” But that depends on what the meaning of “is” is. There was no constitutional right to abortion until the court discovered one 185 years after the Constitution was ratified, when the right was spotted lurking in emanations of penumbras of other rights. What is to prevent the court from similarly discovering a right to same-sex marriage?

These questions are of vital importance because Kagan’s answer to them will clearly show what kind of ideology she adheres to. Many – probably rightfully – believe she is a progressive, perhaps even a radical. Ever since she was first mentioned as Obama’s potential nominee for the vacant seat at the Supreme Court, however, Judge Kagan has tried to presentself as a moderate. She can’t be both. She’s either a (radical) progressive, or she’s not.

If she is a leftist, I suggest she is exposed as such before she’s appointed to the Supreme Court, not afterwards. In order to do so, all the Senate Judiciary Committee has to do is ask Kagan Will’s questions. And that shouldn’t be too much trouble for them, I’d say.

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