The Senate confirmation hearings for Supreme Court nominee Elena Kagan this past week were a glimpse into a pretty dim future for American jurisprudence. Kagan offered an obsequious and often glib performance over two days of softball pitches by Democrats and surprisingly light questioning by Republicans. She remained true to her featherweight legal background by deflecting most of the questions she received, and everyone, including the American public, walked away from the hearings just as clueless about her as when the whole charade began. Republican members of the Senate Judiciary Committee didn’t help matters, because they refused to follow up on some important lines of questioning. They also didn’t demonstrate any coordinated plan of attack for exposing Kagan as a doctrinaire leftist with no respect for constitutional Rule of Law.
Still, the clues about the real Elena Kagan are evident in her prior record, scant though it may be. She advised Bill Clinton to veto the partial-birth abortion ban, a bill that later became law and was upheld by the Supreme Court. In doing so, she even went as far as to manipulate the medical language of a statement from the American College of Obstetricians and Gynecologists to help protect the barbaric practice. Kagan also suggested that the Court should overturn the Solomon Amendment, which provides for the removal of federal funds for schools that deny recruiting opportunities to the military. The Amendment has since been upheld unanimously by the High Court. These two instances are indicative of just how out of step Kagan is with the jurisprudential requirements of the position to which she has aspired since her college days.
More troubling, though, is Kagan’s embrace of trans-nationalism, the trend among lawyers and judges who believe that the U.S. Constitution and legal system should incorporate international and foreign laws and legal rulings. On Constitution Day 2007, when most of the nation’s educational institutions were embracing an educational program on the U.S. Constitution, Kagan hired noted trans-nationalist Noah Feldman to speak to the Harvard faculty. Feldman has been a constant and vocal critic of the American legal system because it has not fully embraced international law to guide its jurisprudence. Because Democrats control 58 Senate seats, Kagan is likely to win confirmation with a couple of turncoat Republicans, but the Constitution, the Rule of Law, and the American public will pay heavily later