Kagan Questions

Consensus of Supreme Court nominee is there is no concensus. The consensus from conservatives and liberals on Elena Kagan’s nomination … Continued

Consensus of Supreme Court nominee is there is no concensus.

The consensus from conservatives and liberals on Elena Kagan’s nomination to succeed retired U.S. Superme Court Justice John Paul Stevens is there is no consensus.

Kagan has never been a judge. She has written only a few law review articles. Her views on most issues are unknown. She is, as Paul Campos wrote in the New Republic in early May, a “blank slate.”

Here is what is known: She is pro-abortion and she favors strong federal executive (presidential) power. She will be replacing the Court’s most liberal justice, an avowed opponent of the Second Amendment. In this regard, she could not be worse than Stevens. Even if she is as left wing as Stevens — which is unlikely — it will be a wash.

But at just 50-years-old, she could on the Court for decades.

Kagan’s only documented remarks directly related to an individual’s right to own a firearm stem from her April 2009 solicitor general nomination proceedings when Sen. Chuck Grassley (R-Iowa) asked her views on District of Columbia v. Heller, the landmark 2008 ruling in which the Court held that the Second Amendment protects an individual’s right to possess a firearm for private use in federal enclaves.

“The Court granted this right the same status as other individual rights guaranteed by the Constitution, such as those protected in the First Amendment …,” Kagan replied. “I understand the solicitor general’s obligations to include deep respect for Supreme Court precedents like Heller and for the principle of state decisis generally. There is no question, after Heller, that the Second Amendment guarantees Americans ‘the individual right to possess and carry weapons in case of confrontation.’ If I am confirmed, I will commit to show Heller and the principles articulated in it the full measure of respect that is due to all constitution decisions of the court.”

Of course, there is a big difference between being a solicitor general and a justice. As the U.S. Solictor General, it was Kagan’s duty as the Obama Administration’s lead attorney to uphold the law as defined by the Constitution. As a Supreme Court Justice, it will be her perogative to define the Constitition.

In terms of background, Tom Goldstein’s exhaustive research on scotusblog.com, including his May 10 column, “9750 Words on Elana Kagan,” is the best one-stop source for information. Here is a roundup of early views and commentary on Kagan’s nomination:

9750 Words on Elena Kagan;
The Left vs. Elena Kagan;
Elena Kagan. judgepedia;
Elena Kagan: “I LOVE the Federalist Society! I LOVE the Federalist Society!”;
Supreme Court contender profile: Elena Kagan;
Elena Kagan to Receive Obama’s SCOTUS Nom;
Elena Kagan Is Obama’s Supreme Court Pick;
Lindsey Graham: ‘I Like’ Elena Kagan, Which Might Hurt Her Chances;
Elena Kagan confirmed as Solicitor General of U.S.;
FantasySCOTUS.net – Our Final Predictions before the Nomination. Elena Kagan FTW;
Our next SCOTUS justice? Elena Kagan….;
Supreme Court Candidates, 2010;
Colored Demos: Some Questions About Elena Kagan;
Kagan’s Words May Return To Haunt Her [Called Justice Thomas’ Testimony “National Laughingstock”];
Okay, who is Elena Kagan, and are we gonna have trouble out of her?
Solicitor General – Elena Kagan;
Myths and falsehoods about Elena Kagan’s Supreme Court nomination;
Senate Republicans: Nomination of Pro-Abortion Elena Kagan Would Spark Court Fight;
– “The reality is that Democrats, including liberals, will accept and push whomever Obama picks.“;
– “She is certainly a fan of presidential power.“;