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AUL praises Hatch for raising key questions on Kagan nomination

HATCH “Will the Constitution Control Her or Will She Try to Control the Constitution?”

In the weeks since Elena Kagan’s nomination to the Supreme Court, we have released large volumes of background information on Elena Kagan and raised numerous concerns about her record and philosophy,” said Dr. Charmaine Yoest, President and CEO of Americans United for Life.  “We have two primary concerns about Kagan. First, her record as a pro-abortion political operative demonstrates she has pre-judged the Life issue and cannot be impartial as a justice. Second, her support for an agenda-driven judiciary as evidenced by her stated admiration of leading agenda-driven judges Thurgood Marshall and Aharon Barak.  I want to applaud Senator Orrin Hatch for an excellent floor speech today in which he raised these serious questions. Leaders like Senator Hatch are getting the word out to the American people – who are not comfortable with what they are hearing.”

Senator Orrin Hatch (R-UT) in a Senate floor speech today, expressed his deep concerns about Kagan on these critical issues and raised serious questions about her nomination:


“Will the Constitution control her or will she try to control the Constitution?  Will she care more about the judicial process or the political results?”

“If she [Kagan] had not endorsed and praised judges making decisions based on their personal values and objectives, then evidence of her own personal values or objectives would obviously be less relevant.  But as Ms. Kagan said in a 2004 interview, since a judge’s personal attitudes and views make a difference in how they reach their decisions, ‘the Senate is right to take an interest in who these people are and what they believe.’”

“…Ms. Kagan praised as her judicial hero Aharon Barak, who served on the Supreme Court of Israel for nearly 30 years.  She called him ‘the judge or justice in my lifetime whom I think best represents and has best advanced the values of democracy and human rights, of the rule of law, and of justice.’  That is not simply high praise, but the highest praise possible, for she said that Justice Barak was literally the very best judge anywhere during her entire lifetime in representing and advancing the rule of law.

Who is this judge who, for Ms. Kagan at least, is literally the best representation of the rule of law?  Judge Richard Posner has described Justice Barak as ‘one of the most prominent of the aggressively interventionist foreign judges’ who ‘without a secure constitutional basis…created a degree of judicial power undreamt of by our most aggressive Supreme Court justices.’  Judge Posner concluded that to Justice Barak, ‘the judiciary is a law unto itself.’”


“Ms. Kagan was a key player behind the Clinton’s administration’s extreme abortion policy.  In May 1997, after President Clinton had vetoed the Partial Birth Abortion Ban Act, Ms. Kagan wrote a memo recommending that he support the substitutes for the ban being offered by Senators Daschle and Feinstein.  She recommended this solely for political reasons, because it might attract some votes from Senators who would otherwise vote to override his veto.  Had that strategy worked, of course, the substitutes would not have passed and partial birth abortion would have remained legal.

Significantly, however, Ms. Kagan noted that the Office of Legal Counsel had concluded that these substitute amendments were unconstitutional under the Supreme Court’s Roe v. Wade decision.   There is no indication that she disagreed with this conclusion.  The point is that Ms. Kagan urged a purely political position on abortion that was at odds with what the Clinton administration then believed the Constitution required.  Once again, it looks like politics trumped the law.”