South Carolina Senator Lindsay Graham made an interesting statement this past weekend on Fox News Sunday with Chris Wallace. Concerning Elena Kagan's nomination to the United States Supreme Court Graham said, "To my conservative friends, you should expect liberals to be picked by Obama. But you should expect us to do our job, and that's not replace our judgment for his to make sure she's qualified and not an activist, and that's what we'll both do."
With all due respect to Senator Graham since the "both" he was talking about was himself and Senator Dianne Feinstein I am not at all confident that either will "make sure she is qualified and not an activist." Senator Graham continues to labor under the misguided belief that liberals and progressives play by the same rules as conservatives. While it may be noble to believe Senator Feinstein would vote to reject Kagan's nomination if she were convinced of her activist leanings I seriously doubt that would be the case.
As a politically active Christian conservative I understand that elections have consequences. I pounded away on my radio show for nine months about the danger of putting a progressive like Senator Obama in the White House and giving him the keys to our country's future. There should have been no doubt in anyone's mind about what kind of judges an Obama presidency combined with a progressive Senate would produce. While it is true a liberal president has the right to appoint someone to the Supreme Court who is liberal it is also true the United States Senate has the responsibility to make sure that justice is qualified to serve. A big part of being qualified is the possession of a judicial philosophy that respects the intent of the framers of the Constitution and respects the plain meaning of their words.
For far too long, Americans have bought into the idea that only constitutional scholars can fully understand and appreciate the meaning of the United States Constitution. One of the most remarkable characteristics of our founding document is its simple, straightforward language. It was written by some of the best educated, wisest men of its day and yet because it is completely logical and coherent in its structure the average reader can understand it.
Understanding how Elena Kagan will make decisions about whether a law is constitutional or not goes far beyond her educational qualifications or legal experience. In Kagan's case it certainly goes beyond her record on the bench since she has not served one day as a judge. The only clues we have to her judicial philosophy are her writings and the people she refers to as her "heroes" and her "mentors."
Kagan's writings and statements reveal an activist, liberal ideology that will certainly guide her judicial decisions. In her graduate thesis, Kagan praised the Warren Court calling it a "court with a mission." She stated that the mission of the court was to, "correct social injustices and inequalities of American life and to transform the nation." Kagan went on to praise the Warren Court because the "justices set themselves a goal…and they steered by this goal when resolving individual cases."
The steering of the court based on social opinion rather than the rule of law is the essence of an agenda-driven court. When judges reject their limited role prescribed for them by the Constitution, their decisions become nothing more than a reflection of their personal preferences regarding the implementation of public policy.
Kagan's writings also reveal an affinity for the application of comparative and international law. While Dean of Harvard Law School, Kagan changed the schools curriculum so as to require the study of international and comparative law. During her conformation hearing for the office of Solicitor General Kagan revealed her deep-seated belief in the application of international law to American jurisprudence when she said, "There are some circumstances in which it may be proper for judges to consider foreign law sources in ruling on constitutional questions." There can be no doubt that if Kagan is confirmed to the Supreme Court, she will be an advocate for interpreting the U.S. Constitution through the lens of international law.
Kagan's self-described hero and mentor both reveal a judicial philosophy that emphasizes activism and manipulation of the law. Her judicial hero is none other than Israeli Supreme Court Judge Aharon Barak. Judge Barak was described by the Honorable Justice Richard Goldstone, a former justice of the Constitutional Court of South Africa as "unashamedly what, in U.S. terms, would be regarded as an activist judge." In Barak's own words he supports judicial activism when he says, "the judge may give a statue a new meaning, a dynamic meaning, that seeks to bridge the gap between law and life's changing reality without changing the statue itself." If Houdini had been a judge even he would have a hard time escaping the unconstitutional implications of that statement.
What about Kagan's self-described mentor? It is none other than Thurgood Marshall, who wrote the role of the court is to "show a special solicitude for the despised and disadvantaged." With heroes and mentors like these Kagan may never turn to the Constitution to decide what passes for constitutional law. Rather than basing her decisions on a fixed standard it is much more likely Kagan will simply follow the prevailing politically correct philosophy of the day.
There can be no question that Solicitor General Kagan's record on constitutional issues is an enigma. Americans can't afford to wait until Kagan is on the court for her judicial philosophy to show itself. Now more than ever we need judges who are willing to defend the Constitution and honor the restrictions it places on an out of control, power hungry government.