Senate Should Probe Elena Kagan’s Judicial Philosophy for Supreme Court Position

Washington, D.C. – President Obama has nominated Elena Kagan to replace Justice Stevens on the U.S. Supreme Court. Kagan proved she has the ability to bring consensus among opinionated lawyers while serving as the Dean of Harvard Law School. After becoming dean in 2003, she was able to effect major change in the curriculum to redirect its focus toward international law and policy. Harvard issued a press release stating it hoped this change to transnational law and policy would have the same effect on other law schools as Harvard’s case law method had when Harvard adopted it in the late 1800s under Dean Christopher Columbus Langdell. The case law method focused on cases and moved away from the study of Blackstone and historic legal training up to that point in American history.

Kagan’s ability to persuade and her age (50) indicate that she could affect the future direction of the Supreme Court, particularly in the area of transnational law and policy.

While Dean of Harvard, she barred military recruiters on campus because of her opposition to the so-called “Don’t Ask, Don’t Tell” policy–the law banning open homosexuality in the military. She opposed the Solomon Amendment, which denied federal funds to schools that barred military recruiters. Her reading of the Solomon Amendment was clearly wrong and was obviously clouded by her personal views. The U.S. Supreme Court later upheld the Solomon Amendment in an 8-0 ruling.

Kagan has stated that judicial philosophy should be an important part of any confirmation hearing. However, Kagan has never been a judge and has only two years of real world experience in the practice of law. The rest of her experience has been in the government under President Clinton and in academia. She has written very little, and has not spoken publicly on controversial issues such as abortion. Her position on Lesbian, Gay, Bisexual, and Transgender issues came to light during the debate over the Solomon Amendment and military recruiters on campus.

Mathew Staver, Founder of Liberty Counsel and Dean of Liberty University School of Law, commented: “Judges should interpret, not make the law. The Senate should press hard to question Elena Kagan on her judicial philosophy. The public deserves to know whether Kagan will use her transnational law philosophy as a lens through which she views the Constitution. And the public needs to know whether her personal views will trump the Constitution, as they appeared to do when she banned military recruiters from campus.”

Courtesy of

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