Written by Tom Fitton
The Senate Judiciary Committee confirmation hearing with Supreme Court nominee Elena Kagan concluded on Wednesday. Once again the nation was reminded just what a ridiculous farce these hearings have become. (Trust me on this, I attended the first day of the hearings and sat through each and every opening statement by Senate committee members and Ms. Kagan.)
Leaving aside for a moment the fact that one Senator actually asked the Supreme Court nominee to weigh in on the "werewolf vs. vampire" debate raging among teenage fans of the movie series Twilight, there were a number of serious reasons to be concerned about how this hearing proceeded: starting with Kagan herself.
Remember now, this is the same Elena Kagan who had previously criticized judicial nominees for being evasive in their responses to the committee. Yet there she was this week, ducking, dodging and running out the clock.
When one Senator asked whether she would characterize the Roberts court as "too activist," Kagan said, "I don't want to characterize the court because someday I hope to join it." When asked if she considered herself a liberal progressive, she pretended not to know what the term meant. At one point after a frustrating line of questioning, Pennsylvania Senator Arlen Specter (a Democrat) lamented, "...you haven't answered much."
Those questions Kagan answered did nothing to counter conservative critics who believe she will be a "liberal progressive" on the High Court. We all know what the term means. So does the President who nominated her for that very reason. For example, Kagan refused to say the federal government has no right to tell the American people what to eat, a response that telegraphs that she will surely vote to turn back major constitutional challenges to Obama's healthcare government takeover. Even reading the tea leaves of her cagey testimony, she surely is Obama's leftist political plant for the High Court.
Other lowlights include her feeble defense of her decision to throw military recruiters off of the Harvard Law campus in violation of federal law and her ethically-questionable machinations to push for partial-birth abortion back when she was a political hack at the Clinton White House. (Our friends at Americans United for Life have done some excellent work on this issue.) She wouldn't even tell Senator Tom Coburn (R-OK) whether there are certain inalienable rights as referenced in our nation's Declaration of Independence. An editorial in today's Washington Examiner described the exchange:
Coburn pressed, asking Kagan if her response meant "you wouldn't embrace what the Declaration says, that we have certain God-given rights, and that among these are the right to life, liberty and the pursuit of happiness?" Kagan replied that "my job as a justice is to enforce the Constitution and the laws." She emphasized that she was "not saying that I do not believe there are not rights pre-existing the Constitution and laws."
While Kagan was busy stonewalling her way through her confirmation hearing, we uncovered new information showing the Obama White House was busy obstructing a press investigation into her life and career.
This week we obtained documents from Hunter College High School regarding a White House effort to deny New York Times education reporter Sharon Otterman access to Supreme Court nominee Elena Kagan's brother Irving, who currently teaches at the New York school.
Otterman requested and received permission from both the school and Irving Kagan to attend one of Mr. Kagan's constitutional law classes before White House Deputy Press Secretary Joshua Earnest intervened. "I'm definitely not comfortable with that at this point," Earnest wrote to Ms. Otterman on May 11, 2010.
Earnest instructed Irving Kagan in an email on May 11 to direct press inquiries directly to the White House:
This reporter says she has permission from you and from the school to sit in on your class. I've articulated my concerns to the [Hunter College public relations representative] Meredith [Halpern] - who now says she agrees with me. I've articulated my concerns to the reporter, who's feeling misled that we're telling her no and she says she was told yes.
In the future, it's important to direct all reporter inquiries to the White House. It'll be easier for you to stay out of the middle of these conversations if you send them directly to us without responding.
Irving Kagan appeared to have no issues with Ms. Otterman's presence in his classroom. "I told my folks at school I was willing to participate, but only with your agreement. Was that a mistake? If I hadn't [been] willing to do it, I would have just said no, and not wasted your time."
There was no indication in any of the documents regarding the White House's specific objections to Ms. Otterman's request.
It should go without saying that the Obama White House has no business interfering with independent press investigations of Kagan. These documents show that the Obama White House could care less about transparency on the Kagan nomination and is no friend of an independent media. One wonders what else the White House has covered up on Kagan's background.
Many observers believed Kagan would be confirmed absent any major "gaffes" during the hearing. Why has this become the qualifying factor for Supreme Court confirmation? We should not be overly concerned about gaffes or slips of the tongue that occur during a hearing. We should be more concerned about the questionable choices made by the nominee throughout their career. And Elena Kagan has made many questionable choices, has no judicial experience and has little legal practice experience. (See banning the military and partial birth abortion for just two examples).
The press would like you to believe Kagan's confirmation is a foregone conclusion. It is not. Please make your voices heard now on the Kagan nomination. With so many crucial issues, such as illegal immigration and Obamacare, on the docket, there is too much at stake to remain silent. A list of the members of the Senate Judiciary Committee is here. Please contact them today. Given Kagan's lack of transparency, Senators would well be within their rights to filibuster until she gives forthright answers about her record and her judicial philosophy.