Why I Will Oppose The Kagan Nomination

By Senator Mike Johanns

In preparation for the upcoming Senate floor consideration of the nomination of Solicitor General Elena Kagan to the U.S. Supreme Court approaches, I have listened to her hearing before the Judiciary Committee and carefully reviewed her record. Just as I did before my vote on Justice Sonia Sotomayor, I carefully considered her view of the Court’s role in our government, and whether she is capable of administering justice as a neutral umpire. Based on her admiration of self-proclaimed activist judges and a career driven by political factors above legal rationale, I am not confident that Ms. Kagan would resist the urge to legislate from the bench.

As an advisor in the Clinton White House, she advocated for keeping partial-birth abortions legal. She inserted her own personal views in place of science by editing the scientific conclusions of a medical group, which ultimately convinced the Supreme Court in 2000 to strike down Nebraska’s ban on this horrific procedure.  Setting the law aside in favor of a preferred political agenda, she also advised President Clinton to support abortion-relation amendments that legal counsel at the Department of Justice had concluded to be unconstitutional.

Ms. Kagan has stated she is “not sympathetic” to Second Amendment rights. The right to lawfully own and use firearms is a Constitutional guarantee which judges must seek to protect, not compromise or dismiss lightly. I will not support Supreme Court candidates with such troubling views on this fundamental right.

It is also disconcerting that as Dean of Harvard Law School, she denied full access to military recruiters on campus in defiance of federal law during a time of war.  The Supreme Court ruled unanimously against Kagan’s position in 2006.

Furthermore, she appears to believe that the interstate commerce clause has virtually no limits, allowing the federal government to require basically anything of its citizens. During her nomination hearing before the Senate Judiciary Committee, Senator Tom Coburn of Oklahoma posed a hypothetical situation: What if Congress, for whatever reason, passed a law requiring all Americans to eat three fruits and vegetables per day? Even in this hypothetical instance, Ms. Kagan declined to state whether she would deem such a law unconstitutional. Justices must recognize the importance of defending individual rights and freedoms. Ms. Kagan’s struggle to articulate any limits on federal power are troubling and provides insight into how she would rule on the constitutionality of the individual mandate embedded within the recently-passed health care law.

Confirming Supreme Court Justices is one of the most important jobs of the U.S. Senate. The American people deserve a justice who will support and defend individual rights.  Unfortunately, Ms. Kagan’s activist judicial philosophy and her record of allowing political and personal considerations to drive her legal views make her ill-suited to serve on the nation’s highest court.

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