Kagan on Foreign Law

Elena Kagan's admission that she would apply foreign law as a Supreme Court justice is the most revelatory and troublesome thing she has said thus far in her confirmation hearings.

Sen. Chuck Grassley asked Kagan during today's Judiciary Committee hearing, "Should judges ever look to foreign law for ‘good ideas,’ should they get inspiration for their decisions from foreign law?”

Kagan replied, “Well, Senator Grassley, I guess I’m in favor of good ideas coming from wherever you can get them.”

Her answer may not alarm non-lawyers, and progressives desperate to win approval of foreign nations will no doubt applaud it.

Here's the problem with foreign law: we as Americans had no say in electing the legislators who wrote the foreign statute. The rule of law rests on the consent of the governed, but U.S. citizens did not consent to be governed by leaders of any country but this one. And when we are subjected to the laws of another country, it diminishes our sovereignty

Likewise, the application of foreign law precludes the redress of a democracy. Because we did not elect the members of the foreign parliament, we cannot vote the bums out when we don't like the laws they pass. Kagan's answer, moreover, reveals a certain arrogance about the role of a Supreme Court justice. Her job is not to look for "good ideas." Her job, should she get confirmed, is to apply the law -- U.S. law -- by reading statutes, precedent and the constitution and applying those sources of law to the facts of the case on appeal.

Kagan Waffles

It's day two of Elena Kagan's confirmation hearings, and she appears to be engaging in a bit of historical revision about her role in the Clinton administration.

Previously, Kagan described her role as a "policy adviser to Clinton." In 2007, Kagan said that "[d]uring most of the time I spent in the White House, I did not serve as an attorney; I was instead a policy adviser . . . . It was part of my job not to give legal advice but to choose when and how to ask for it."

In her testimony to the Judiciary Committee today, however, Kagan said "I tried my hardest when I was in the - when I worked in the Clinton administration, including as a lawyer, to provide good legal advice to the president."

The Clinton Library has released Kagan emails that show her advice included which campaign finance "reform" proposals would hurt Republicans and thereby benefit Democrats: "Soft $ ban - affects Repubs, not Dems!"

In essence, Kagan's legal advice was intertwined with her political advice. That raises the issue of whether Kagan can vote as a Supreme Court justice without weighing the political ramifications of the cases's outcome. Simply put, can this former political operative be neutral?

Rand Paul Opposes Kagan

Rand Paul has announced that he opposes the nomination of Solicitor General Elena Kagan to the U.S. Supreme Court. It's a reasonable position for a conservative to take, except that Kagan could be much worse. Compared to some of the potential nominees, Kagan looks downright moderate (she appointed some outstanding conservatives to the Harvard Law School faculty as Dean.) Paul has stronger issues to press than Kagan's nomination, in my view.

Paul's press release is quoted below. The only part that leave me confused is Paul's complaint that

"Elena Kagan does not believe that the Constitution is the sole legal authority for the Supreme Court, specifically stating that judges could "mold or steer the law" and that it could be based on "the Constitution or another accepted source of law".

Now if Paul's point is that the Supreme Court cannot legitimately cite international law, then I agree with him. And I agree with him that a judge has no business "molding or steering" the law; that's a cover for judicial activism.

However, Kagan is correct that the Court can apply "another accepted source of law," other than the constitution. Indeed, the U.S. constitution is not always at issue in U. S. Supreme Court cases. The Court can rule on any number of sources of law, including statutes and foreign treaties.

Here's Paul's release:

Among the views of Elena Kagan of concern to Dr. Paul are:

1. Elena Kagan does not believe that the Constitution is the sole legal authority for the Supreme Court, specifically stating that judges could "mold or steer the law" and that it could be based on "the Constitution or another accepted source of law". She will clearly be an activist judge for her liberal positions and in Dr. Paul's opinion, will legislate from the bench.

2. Elena Kagan argued against a federal partial-birth abortion ban.

3. Elena Kagan has actively worked against the 2nd amendment, and in favor of greater restrictions and licensing for guns.

4. While at Harvard, she banned military recruiting there, showing her disdain for our armed forces.

5. She has written in support of discrimination via racial quotas.

For these reasons, Dr. Paul would vote against the nomination of Elena Kagan, and calls on Jack Conway to state his position and tell Kentucky voters how he would vote on this liberal Obama nominee.

Justice Kagan?

President Barack Obama has nominated Solicitor General Elena Kagan to the U.S. Supreme Court. No doubt her opposition to military recruiters at Harvard Law School as Dean will draw probing questions from Republicans. She was completely wrong about using "Don't Ask, Don't Tell" as a pretext for keeping the military off the Harvard Law School campus.

Nonetheless, we could have done worse. She was a pretty fair dean -- much less ideological than many on the faculty. And she did appoint some outstanding conservatives to the faculty, and that is no small accomplishment at Harvard. Her communication to alums also represented an improvement. Given her recent confirmation as Solicitor General, I think she will be confirmed to the High Court where she will be a solid vote for the left but unable to pull over any votes from the right.

Here's Senate Republican Leader Mitch McConnell's statement on her nomination:

“I congratulate Elena Kagan on her nomination. As we did with Justice Sotomayor last year, Senate Republicans will treat Ms. Kagan fairly. She has been nominated for a lifetime appointment on the nation’s highest court, and we will carefully review her brief litigation experience, as well as her judgment and her career in academia, both as a professor and as an administrator. Fulfilling our duty to advise and consent on a nomination to this office requires a thorough process, not a rush to judgment.

“The American people expect judges to apply the Constitution and laws of the United States fairly and impartially—as they are written, not how they could have been written but were not. Even though the President who nominates them has personal policy preferences, judges must not be a rubberstamp for any administration. Judges must not walk into court with a preconceived idea of who should win. Their job is to apply the law ‘without respect to persons,’ as the judicial oath states; it is not to pick winners or losers.

“Senate Republicans will have a vigorous debate on the importance of this principle. And we will diligently review the record of Ms. Kagan to ensure that she shares this principle and that she possesses the requisite experience to serve on the Supreme Court.”

Obama Nominates Harvard Law Dean to S.G.

Harvard Law School Dean Elena Kagan has sent an email to alumni to announce that President-elect Barack Obama will nominate her to be Solicitor General. If confirmed by the Senate, she will take a leave of absence from Harvard.

I have accepted this nomination because it offers me the opportunity, working under the leadership of the President-elect and his nominee for Attorney General, Eric Holder, to help advance this nation's commitment to the rule of law at what I think is a critical time in our history. I am honored and grateful, awestruck and excited, to be asked to contribute to this most important endeavor. And perhaps, for me, it adds a special touch of sweetness to the occasion that the person making the nomination, in whose capacity for greatness I deeply believe, is himself a member of the group to which I am writing.

At the same time, I feel today real sadness - a sense of loss of what, if confirmed, I will be leaving that is every bit as strong as my sense of anticipation of what will be to come. Now isn't the time for me to attempt a grand wrapping-up or final farewell; I don't in any way want to presume the outcome of the Senate's consideration. For the present, I'll say only this: it has been both the joy and the privilege of my life to serve as dean of this most wondrous law school. I love it, and I love the extraordinary community of people - you - who make it up. I look forward to staying in close touch.

Although I don't know Dean Kagan personally, she has made some outstanding appointments to the law school's faculty that demonstrate an interst in seeking opposing viewpoints. That is, she's appointed true conservatives (Federalist Society members!) who have done much to enhance the ideological diversity of the school.

She'll make a great S.G.