Jeffrey T. Kuhner Archive

The GOP and Elena Kagan

This is inexcusable. Ms. Kagan is one of the most radical nominees to sit on, potentially, the highest court in the land. She is a postmodern academic cultural Marxist. Like Justice Sonia Sotomayor (the "wise Latina"), Ms. Kagan thinks social engineering trumps constitutional self-government: In her view, the role of the courts is not to enforce laws passed by elected legislatures; rather, it is to impose social policy from the top down, negating or circumventing popular will. Call it judicial tyranny masquerading as enlightened activism.

As a policy aide in the Clinton administration, Ms. Kagan deliberately manipulated medical findings to rationalize support for partial-birth abortion — the barbaric practice of crushing the skull of a baby coming out of the mother's womb. In other words, she distorted science to justify mass infanticide.

As the dean of Harvard Law School, Ms. Kagan prevented military recruiters from coming on campus. The reason: She publicly opposed the "don't ask, don't tell" policy, which prohibits openly acknowledged gays and lesbians from serving in the military. She argued that it amounted to discrimination and a violation of civil rights. Repealing "don't ask, don't tell," however, is not about social justice. It is about transforming our military — the finest, most effective fighting force in the world — to advance the radical homosexual agenda. Having openly gay service members would undermine morale and cohesion; the interests of a vital Democratic Party constituency are to take precedence over the military's institutional mission. It represents the triumph of ideology over centuries of experience and military custom.

Yet, when Saudi Arabia contributed $20 million to establish an Islamic studies and Shariah program at Harvard, Ms. Kagan remained silent. Her opposition to supposed "homophobia" extends only to the U.S. military. When it comes to Shariah law and its practice of murdering gays and lesbians — never mind stoning adulterers and enslaving women — Ms. Kagan's liberalism takes a back seat to multiculturalism. She is a craven hypocrite who despises traditional America.

Moreover, her decision to bar military recruiters was not simply a matter of political judgment. It was an act of treason. At the time, America was fighting two bloody wars in Iraq and Afghanistan. Our troops were dying. Ms. Kagan sought to deny access to potential military recruits when they were most needed.

Ms. Kagan also supports laws that assault First Amendment free-speech rights because she believes the government cannot really "enforce" the banning of books. She favors "redistributive speech" as well as European-style "hate-speech laws." These authoritarian measures have been used to persecute conservatives, Christians and Jews across Europe in order to protect politically correct groups such as Muslims, homosexuals and atheists from criticism.

Gay marriage, affirmative action, abortion on demand, gun control, giving terrorists full legal and constitutional rights — Ms. Kagan is a doctrinaire liberal who seeks to use her position on the high court to shift America permanently to the left. Her role model is the late Justice Thurgood Marshall. He embodied ultra-activism, believing that the courts should twist — and if necessary, ignore — the Constitution to achieve progressive goals. He championed the judge as superlegislator, judicial imperialism as the path to multicultural social democracy.

For the left, the Constitution is a "living" and "breathing" document that must reflect societal evolution and changing norms. It is a piece of clay that must be molded to suit contemporary ideological ends. Rather than restraining government power (as the Framers intended), it is the mechanism to erect a nanny state. This is the very opposite of what James Madison had in mind.

Ms. Kagan admitted her progressive, anti-Madisonian, anti-constitutionalist outlook during the hearings. She said that, while the Framers inserted specific details, such as requiring senators to be at least 30 years old, "there are a range of other kinds of provisions in the Constitution of a much more general kind, and those provisions were meant to be interpreted over time, to be applied to new situations and new factual contexts."

Ms. Kagan is more than a pernicious leftist. She is an incompetent bureaucrat who does not deserve to sit on the highest, most powerful court in the land. Her career is characterized by mediocrity. She has no experience as a judge or trial lawyer. Her few cases as President Obama's solicitor general, arguing cases in front of the Supreme Court, were dismal performances. On several occasions, she was directly rebuked by justices for her inappropriate conduct and amateurish arguments. She has a thin publishing resume. She has no reputation as an intellectual giant. In short, she is a Democratic partisan hack skilled in one thing: pole-climbing. She is a liberal Harriet Miers.

And this is precisely why Mr. Obama picked her. They are cut from the same ideological cloth — postmodern academic leftists who believe politics is about power and self-advancement. She can be counted on to rubber-stamp Mr. Obama's legislative accomplishments — especially his health care overhaul, which faces numerous court challenges from different states.

Ms. Kagan's confirmation would mark another major victory for Mr. Obama's socialist revolution. He is slowly remaking the Supreme Court in his image.

Instead of vigorously opposing Ms. Kagan, the Republican Party has largely done nothing. Sen. Scott Brown of Massachusetts praised her "intellect" and "outstanding qualities." Sen. Tom Coburn of Oklahoma spoke glowingly of her. Sen. Lindsey Graham of South Carolina bantered with her during the hearings. Even Sen. Jeff Sessions of Alabama, the ranking member on the Senate Judiciary Committee, said he was "impressed" with some of Ms. Kagan's "attributes." The job of a loyal opposition is to oppose; it is not to lie down and surrender, resorting to phony questions and occasional potshots. The stakes are too high.

If the Republicans cannot stand up against such a blatantly unqualified nominee and irresponsible ideologue, it is time conservatives consider abandoning the GOP and creating a third party. Ms. Kagan's nomination deserves to be filibustered. That Republicans won't means they are unwilling — or unable — to confront the liberal regime. Ms. Kagan is laughing all the way to the top.

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