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Putting an Activist on the Supreme Court

Do not be fooled by some on the Left claiming President Obama’s nomination of Elena Kagan to the Supreme Court is not to their satisfaction. The questions being raised by the Left are nothing more than a Washington red herring. Liberal Activists have been wanting Elena Kagan on a federal court for the past twelve years, and today they begin to have their chance.

Elena Kagan might not have served a single day on any federal court. But, there is plenty known about her from working in the West Wing for Bill Clinton, who even tried to nominate her for a position on the D.C. court eventually occupied by John Roberts, to now serving as President Obama’s Solicitor General. Some on the Left are calling her the Souter nomination, trying to imply that people don’t know where she stands on issues. However, just as there probably were about David Souter, there are some clues.

Even though she recently went through the confirmation process to become Solicitor General, here are a few of the items senators on the Judiciary Committee should ask about before confirming her to a lifetime appointment to the U.S. Supreme Court.

1. Elena Kagan needs to be asked about her willingness to look at international law when deciding domestic cases.

Under questioning by Senator Specter during her Solicitor General confirmation she responded:

“At least some members of the Court find foreign law relevant in at least some contexts. When this is the case, I think the Solicitor General’s office should offer reasonable foreign law arguments to attract these Justices’ support for the positions that the office is taking.”

There are many Americans that believe we need a Supreme Court Justice who interprets the U.S. Constitution and does not look to other countries for input.

2. Elena Kagan needs to explain her tendency toward anti-religious bias.

In Bowen v. Kendrick, the Supreme Court disagreed with Kagan that federal grants to religious organizations violated the Establishment Clause. She argued, “It would be difficult for any religious organization to participate in such projects without injecting some kind of religious teaching. … [A]ll religious organizations should be off limits.” She later recanted.

Faith-based organizations, such as those run by the Catholic Church, offer some of the best solutions to dealing with society’s ills and should not be discriminated against. From the above logic used in Bowen v. Kendrick, it is not a stretch that Kagan would also agree with the Massachusetts ruling striking down the Department of Health and Human Services executive order providing funding to the U.S. Conference of Catholic Bishops to combat human trafficking.

3. Elena Kagan needs to be asked point blank about her position on federal funding for abortion, her work in the Clinton White House on abortion policy, and any legal work done on behalf of Planned Parenthood.

4. Elena Kagan needs to be asked about her position on extending benefits to same-sex couples.

The national news frenzy has already picked up on her opposition to the military recruiting occurring on the Harvard Law School campus while she was dean. Catholics need to pay attention to the reason why – her opposition to “Don’t Ask, Don’t Tell” – a policy compromise reached by her previous boss Bill Clinton but now being overturned by President Obama. There is anticipation that positions she took at Harvard reflect the institution and not how she would side in a potential ruling, however, she was the dean and set the tone for leadership.

In the coming month, the Senate will begin the confirmation theatrics. Elena Kagan has commented about the “confirmation process” – in a 1995 book review of “The Confirmation Mess” by Stephen Carter.

“The real ‘confirmation mess’” she wrote, “is the gap that has opened between the Bork hearings and all others.”

“Not since Bork,” she said, “has any nominee candidly discussed, or felt a need to discuss, his or her views and philosophy.”

“The debate focused not on trivialities,” she wrote, but on essentials: “the understanding of the Constitution that the nominee would carry with him to the Court.”

Elena Kagan thinks nominees should candidly discuss their opinions. Catholic Advocate AGREES and hopes the Senate gives her the opportunity.

By Matt Smith, Catholic Advocate Vice President

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