Republican Senators Must Filibuster Elena Kagan

by Erick Erickson


Americans have now learned about the extreme views of Solicitor General Elena Kagan, President Obama’s nominee to the Supreme Court.

Kagan’s testimony before the Senate Judiciary Committee contained much clear evidence of her expansive view of federal power and her lack of respect for the 2nd Amendment. Kagan’s views on the Commerce Clause and Americans’ right to “keep and bear arms” make her unfit to serve on the Supreme Court.

Senators should filibuster her nomination to stop her sitting on the highest court in the land.

Much has been made of Kagan’s banning military recruiting from the campus of the Harvard Law School when she was dean there and her extreme views on abortion. there is also her career of political activism, which should serve as a disqualifier for Kagan to serve as a judge on any court.

Those issues are very important and are reasons enough to vote no on her nomination, but just to reach the now-accepted Senate standard of “extraordinary circumstances” for a filibuster, senators need to look no further than Kagan’s record on the Commerce Clause and the constitutional right of all Americans to use a firearm to defend themselves.

Senators are reluctant to use the “f-word”–filibuster–yet it is a perfectly appropriate procedural tool to use to block an extremist nominee who will vote on the Supreme Court to take away crucial individual rights.

The Commerce Clause in Article 1, Section 8, states that “Congress shall have power .... to regulate Commerce … among the several States.” Sen. Tom Coburn (R.-Okla.) asked Kagan during the committee proceedings last week, “If I wanted to sponsor a bill and it said, Americans you have to eat three vegetables and three fruits every day, and I got it through Congress and it’s now the law of the land … does that violate the Commerce Clause?” Kagan did not answer directly, instead called it a dumb law then said, “Courts would be wrong to strike down laws that they think are senseless just because they are senseless.” This is a classic dodge of the question.

Coburn was not finished. Kagan was asked a follow-up question by Coburn and she replied that “deference should be provided to Congress with respect to matters affecting interstate commerce.” Coburn concluded by saying that “you missed my whole point.

We're here because the courts didn't do their job in limiting our ability to go outside of original intent on what the Commerce Clause was supposed to be.”

Clearly, Kagan would uphold the individual mandate contained in Obamacare and would rubber-stamp President Obama’s expansive view of the proper role of the federal government.

Kagan is also clearly hostile to the 2nd Amendment. Kagan, while she was clerk to Justice Thurgood Marshall, wrote a memorandum in 1987 that she had “no sympathy” for an individual challenging the constitutionality of a gun ban. Kagan, as counsel for former President Bill Clinton, was a central player in the Clinton efforts to restrict gun ownership nationwide. The Los Angeles Times said in an article a few months ago that “gun-control efforts were a hallmark of the Clinton Administration.”

As President Obama’s Solicitor General, Kagan failed to file a brief in the McDonald v. Chicago case that found the states must obey the 2nd Amendment. So, in her capacity as a clerk to a Supreme Court justice, as a counselor to a President and as the solicitor general of the United States, Kagan has a long life of anti-2nd Amendment activism.

In the hearing last week, Kagan further evidenced hostility to gun rights. She dodged questions from Sen. Chuck Grassley (R.-Iowa) about her view on the right to “keep and bear arms.”

Kagan said that “I know that the scholarship in this area has suggested that there’s a very strong view that there is an individual right under the 2nd Amendment.” This is a mere statement of fact. Kagan refused to voice her support for a natural right of self-defense and did not explain in detail her views on why she thought it constitutional for her to fight against Americans’ constitutionally recognized right.

Justice Sotomayor argued last week in the McDonald decision that the landmark Heller decision holding that the 2nd Amendment is an individual right should be reversed.

Sotomayor’s responses to questions in the case sound very familiar to those who listened to the evasive answers of Kagan before the Senate Judiciary Committee. Sotomayor signed an opinion in the McDonald case that “the use of arms for private self-defense does not warrant federal constitutional protection from state regulation.” Is there any reason to believe that Kagan would not pull a “Sotomayor” and vote to remove the 2nd Amendment from mandatory incorporation for the states?

Senators have a duty under the constitution to “consent” to nominees or not to “consent” to nominees. Elena Kagan is too radical for a lifetime appointment to the Supreme Court. Senators would be committing a high act of confirmation treason if they allow this nominee to go on the court without attempting to filibuster her nomination.