by Richard H. Frank
After enduring hours of political theatre with the unending statements of praise for Obama’s latest nominee for the vacancy on the Supreme Court, we finally got an insight on what drives Elena Kagan. I am sure Ms. Kagan is an exceptionally smart individual and by all accounts relatively easy to get along with.
What should raise suspicion and generate questions by the Senate Judiciary Committee are the words used in her opening statement that seem to shed some light on her judicial philosophy. She described the Supreme Court as a “wondrous institution that also must be a modest one – properly deferential to the decisions of the American people and their elected representatives.” Somewhere along the way, she seems to have missed the principle that members of the Court are deferential to the Constitution of the United States of America.
Her remarks concerning her White House experience are of equal concern when she stated in part “The Supreme Court, of course, has the responsibility of ensuring that our Government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American People.”
The American people do not make law – their elected representatives do – and those laws must conform to the “Constitution” which is the ultimate law of the land. Further, the Constitution is explicit with regard to the powers delegated to the various branches of Government. She was remiss in not enumerating those limits on Government during her opening statement. This fact leads one to believe she holds a Progressive view of a living Constitution contrary to that of the Founding Fathers.
Her reference to “lessons learned” while at Harvard is quite revealing. She said “…and what I’ve learned most is that no one has a monopoly on truth or wisdom and I’ve learned that we make progress by listening to each other, across every apparent political or ideological divide. I’ve learned that we can come close to getting things right when we approach every person and every issue with an open mind. And I’ve learned the value of a habit that Justice Stevens wrote about more than 50 years ago … of “understanding before disagreeing.”
These are statements we might expect from an academic, not a Supreme Court Justice!
Lastly, she stated “I will make no pledge this week other than this one… that if confirmed, I will remember and abide by all of these lessens.”
The pledge every American should hear from Elena Kagan is that she will “preserve, protect and defend the Constitution of the United States of America. Anything less should disqualify her from consideration.