By Dr. Harold Pease
Supreme Court nominee Elena Kagan does not have bench experience or even much courtroom experience. She hasn’t even logged over three years of private practice as a lawyer. She has been a life-long academic and a far left ideologue, thus not likely to support anything remotely conservative in any decision for the next 40 years that she could be on the bench. She is anti-military and probably supports the Gay and Lesbian agenda. She also has distain for the Second Amendment. Any of these should bring question to her legitimacy as a justice. If such were offered by a Republican president with the opposite philosophy in place, the Democrats would go berserk and, rightfully so, would accuse the other party of ineptitude.
But has she read the Constitution? Has she written anything on it? Is she committed to the view of its Founders? Is The Federalist Papers the least bit important to her? These are all non-partisan questions. After all, being only 50 years of age, she is one of two generations that has received very little on The Constitution in school outside the 8th grade. Law school emphasizes case study, not the view of the Founding Fathers. So where is the evidence that she is qualified to defend it?
Where is the evidence that a “Justice” Kagan will confine Congress to the Enumerated Clause and the president to the list of areas cited in Article II? When President Obama goes into the back room and writes law through executive orders or creates new officers called czars (each without an ounce of Constitutional authority) will she say that is unconstitutional and condemn the practice, or will she defend him? Will she protect Federalism and the 10th Amendment, each absolutely critical to the continuation of freedom? Again non-partisan questions. We know that she will not be protecting your right to defend yourself with a handgun, and that should be a disqualifier by itself.
We have too many justices who, though they have by oath sworn to defend the Constitution, are content either by ignorance or intent to emasculate it because the Senate wrongly assumed in previous confirmation hearings that they knew and reverenced the Constitution.
Supreme Court Justice Clarence Thomas said it best. “Let me put it this way; there are really only two ways to interpret the Constitution—try to discern as best we can what the framers intended or make it up.” On making it up he added: “No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores.”(Wall Street Journal Opinion, Oct. 20, 2008)
Today the Court is evenly divided between those who make it up as they go and those who follow what the Founders wrote. The only real question needed is, which side would a Justice Kagan support?
Kagan’s comments that she favors “interpreting the Constitution as a ‘living,’ malleable document” in fact makes her an opponent of original intent, thus out of harmony with the Founders. This fact alone should disqualify her from a seat on the High Court or any court.
Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College.