A Fuller Picture Of Kagan Is Beginning To Emerge

This kind of thinking might be okay for a political advisor. But there’s a place for politics and for advocating for one’s party, and that place is not on the Supreme Court. A political advisor may be expected to seek political advantage, but judges have a different task.’
Below are the remarks made by U.S. Senate Republican Leader Mitch McConnell today on the Senate floor. Regardless, of the comments, McConnell's past history reveals he almost always voted for person nominated for SCOTUS based on a self-imposed belief that a President should have his nominees approved barring criminal or other major legal impairment. However, Sen McConnell evidenced a major shift one year ago when he addressed the SCOTUS Nomination of Judge Sotamayor. Recommend reading: Judge Sotomayor Does Not Meet the Test in addition to McConnell's statement concerning SCOTUS Nominee Kagan. It is critical that conservative Senators don't accept this nomination as just one liberal replacing another liberal.

by U.S. Senate Republican Leader Mitch McConnell (Ky): “On Monday, the Senate will begin the confirmation hearings on Supreme Court nominee Elena Kagan. And I think it’s safe to say most Americans don’t know all that much about her.

“But a fuller picture of this nominee is beginning to emerge.

“The recent release of documents relating to Ms. Kagan’s work in the Clinton White House reveals a woman who was committed to advancing a political agenda — a woman who was less concerned about objectively analyzing the law than the ways in which the law could be used to advance a political goal.

“In other words, these memos and notes reveal a woman whose approach to the law was as a political advocate — the very opposite of what the American people expect in a judge.

“This is the kind of thinking behind the current Democrat effort to pass the so-called DISCLOSE ACT — a bill designed to respond to the Supreme Court’s decision in Citizens United that they think puts them at a political disadvantage in the fall. That’s why the bill was written by the chairman of their campaign committee.

“And this is also the kind of thinking that seems to have motivated the Clinton White House to seek a similar legislative response the last time the Supreme Court issued a decision in this area that Democrats thought put them at a political disadvantage.

“I’m referring here to the case of Colorado Republican Federal Campaign Committee v. FEC, a case in which the Supreme Court essentially said that the federal government couldn’t limit political parties from spending money on campaign ads called “independent expenditures” that said things like, ‘Vote against Smith,’ or ‘Vote for Jones.’

“This was not an especially controversial decision, as evidenced by the fact that it was written by Justice Breyer, one of the court’s most prominent liberals. But the decision put Democrats at a political disadvantage. So the Clinton Administration did the same thing then that the Obama Administration is trying to do today. They considered proposals to lessen its impact — and to benefit Democrats over Republicans. And Elena Kagan worked to advance that goal as part of President Clinton’s campaign finance task force.

“Ms. Kagan’s notes reveal that finding ways to help Democrats over Republicans was very much on her mind. According to one of her notes, she wrote, and here I quote:

‘Free TV as balance to independent expenditures? Clearly on mind of Dems — need a way to balance this.’

“The ‘balance’ Ms. Kagan is referring to here was a way for Democrats to balance what they viewed as the Republicans’ advantage in helping their candidates with independent expenditures. And ‘free TV,’ well, that’s a reference to Democrats wanting free television to help them out in their campaigns. Providing free TV would be a ‘significant benefit,’ Ms. Kagan wrote. It was also something the Clinton administration could bring about, she suggested, by simply having the FCC issue a new regulation, or by adding such a provision to legislation the White House was helping to craft.

“But this wasn’t the only way in which Ms. Kagan thought about stacking the deck to help Democrats over Republicans at the time. Another note reveals her approach to the issue of soft money — the money political parties used to spend outside of federal elections. Ms. Kagan’s notes show that she thought banning it would hurt Republicans and help Democrats. She even seemed to delight in the prospect of finding ways to disadvantage Republicans. Here’s what she wrote in her notes: ‘Soft [money] ban – affects Repubs, not Dems!’

“And if I had this quote up on a chart, you’d see that she punctuated this sentence with an exclamation point.

“So let me repeat that quote one more time:

‘Soft [money] ban – affects Repubs, not Dems’— punctuated with an exclamation point.

We already knew that Ms. Kagan and her office argued to the Supreme Court at different points in the Citizens United case that the federal government had the power to ban political speech in videos, books and pamphlets if it didn’t like the speaker.

“Then we learned she went out of her way to prevent lawyers at the Justice Department from officially noting their serious legal concerns with campaign finance legislation in order to help the Clinton Administration achieve its political goals.

“Now we learn that she thought about drafting such legislation in ways to help Democrats and hurt Republicans. And her advocacy and apparent glee at identifying some political harm to Republicans is, to my mind, another piece of her record that calls into question her ability to impartially apply the law to all who would come before her as a justice on our nation’s highest court. The more we learn about Ms. Kagan’s work as a political advisor and political operative, the more questions arise about her ability to make the necessary transition from politics to neutral arbiter. As Ms. Kagan herself once noted, during her years in the Clinton administration, she spent ‘most’ of her time not serving ‘as an attorney’ but as a policy advisor. And her notes and memoranda reveal that all too often her policy advice and actions were based, first and foremost, on what was good for Democrats.

“This kind of thinking might be okay for a political advisor. But there’s a place for politics and for advocating for one’s party, and that place is not on the Supreme Court. A political advisor may be expected to seek political advantage, but judges have a different task.

“We don’t know how Elena Kagan will apply the law because she has no judicial record, little experience as a private practitioner, and no significant writings for the last several years. So the question before the Senate is whether, given Ms. Kagan’s background as a political advisor and academic, we believe she could impartially apply the law to groups with which she doesn’t agree and for which she and the Obama Administration might not empathize. So far, I don’t have that confidence.

“As the hearings process, we’ll know better whether Ms. Kagan could `administer justice without respect to persons,’ as the judicial oath requires.”

---

Tags: Mitch McConnell, SCOTUS, nomination, Elena Kagan To share or post to your site, click on "Post Link". Please mention / link to the ARRA News Service. Thanks!