Kagan: ‘No view on natural rights’

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Elena Kagan

 

Elena Kagan has disqualified herself from serving on the U.S. Supreme Court with her statement under oath that she has no view of “natural rights,” says the man leading a letter-writing campaign to the U.S. Senate.  

“In all my years of observing hearings in Washington, I don’t think I’ve ever been more stunned and disappointed by the testimony of a Supreme Court nominee than I was with Elena Kagan,” said Joseph Farah, spearhead of the “Stop Kagan Campaign,” which has generated nearly 60,000 letters to members of the Senate. “This is someone, who, from her own testimony, doesn’t believe in the Declaration of Independence, which we just celebrated and commemorated this week for the 234th time in our nation’s history. This is someone who claims she doesn’t have a view about ‘natural rights’ –- those that real Americans believe are unalienable and God-given.”

The statements by Kagan came in an exchange with Sen. Tom Coburn, R-Okla. Farah said most of the press failed to cover her responses, which he deemed as newsworthy as any she made during the hearings:

Coburn: Do you believe it is a fundamental, pre-existing right to have an arm to defend yourself?

Kagan: Senator Coburn, I very much appreciate how deeply important the right to bear arms is to millions and millions of Americans. And I accept Heller, which made clear that the Second Amendment conferred that right upon individuals, and not simply collectively.

Coburn: I’m asking you, Elena Kagan, do you personally believe there is a fundamental right in this area? Do you agree with Blackstone [in] the natural right of resistance and self-preservation, the right of having and using arms for self-preservation and defense? He didn’t say that was a constitutional right. He said that’s a natural right. And what I’m asking you is, do you agree with that?

Kagan: Senator Coburn, to be honest with you, I don’t have a view of what are natural rights, independent of the Constitution. And my job as a justice will be to enforce and defend the Constitution and the laws of the United States.

Coburn: So you wouldn’t embrace what the Declaration of Independence says, that we have certain God-given, inalienable rights that aren’t given in the Constitution that are ours, ours alone, and that a government doesn’t give those to us?

Kagan: Senator Coburn, I believe that the Constitution is an extraordinary document, and I’m not saying I do not believe that there are rights pre-existing the Constitution and the laws. But my job as a justice is to enforce the Constitution and the laws.

Coburn: Well, I understand that. I’m not talking about as a justice. I’m talking about Elena Kagan. What do you believe? Are there inalienable rights for us? Do you believe that?

Kagan: Senator Coburn, I think that the question of what I believe as to what people’s rights are outside the Constitution and the laws, that you should not want me to act in any way on the basis of such a belief.

Coburn: I would want you to always act on the basis of the belief of what our Declaration of Independence says.

Kagan: I think you should want me to act on the basis of law. And that is what I have upheld to do, if I’m fortunate enough to be confirmed, is to act on the basis of law, which is the Constitution and the statutes of the United States.

“This woman apparently thinks our rights descend from our Constitution, which is crazy,” said Farah. “The Constitution is there to protect our unalienable, God-given human rights – not to define our rights or to invent them.”

The campaign to deny Kagan confirmation in the Senate, however, began long before the hearings began.

“This woman, as president of her university, banned the U.S. military from recruiting on campus,” Farah reminds. “Just contemplate rewarding that kind of vehemently anti-American action with a lifetime appointment to the Supreme Court. Elena Kagan must be stopped.”

He devised the “Stop Kagan Campaign” based on previous successes in generating heavy volumes of mail to members of Congress.

“It’s a phenomenal bargain,” says Farah. “It makes it easy for you to sound off on this historically bad nomination. It’s a small investment. And I am convinced that if enough Americans take advantage of it, Kagan will be stopped – even by this Senate.”

But time is short, Farah says. America is distracted by a floundering economy, a disastrous oil spill and a government that creates new crises on a daily basis, he explains.

Calling Kagan “an activist who wants to govern from the bench,” Farah says there’s a way to give senators a “spine transplant” and prepare them for the most contentious confirmation fight since Clarence Thomas.

“Kagan is a radical antimilitary and pro-abortion zealot,” said Farah. “This selection by Barack Obama reveals once again his extremist agenda of leaving America undefended, elevating alternative lifestyles to sainthood and exterminating the most innocent human life with reckless abandon and persecuting anyone who tried to stand in the way. In a nutshell, that’s who Elena Kagan is.”

Farah’s goal is to inundate senators with 100,000 letters calling for her rejection for a lifelong appointment to the U.S. Supreme Court.

The letter campaign is based on previously successful efforts in which nearly 10 million “pink slips” were delivered to members of Congress opposing nationalization of health care, cap-and-trade legislation, hate-crimes laws and other bills, as well as the current campaign to stop amnesty in the U.S. Senate.

The “stop Kagan” campaign allows any American citizen to generate 100 individually addressed letters to every U.S. senator, each including the name of the sender and all delivered by FedEx for the low price of just $24.95. That comes out to less than the cost of snail-mailing the 100 letters yourself.

The letter to the senators reads:

“In a few months, the American people will have a chance to speak at the polls again. Almost every analyst and every public-opinion survey suggests the electorate is angry about the direction of the country. I strongly urge you not to show contempt for the will of the people and the Constitution by confirming the Supreme Court nomination of Elena Kagan.

“Kagan is not what Americans want and she is not what the country needs.

“At a time when federal central control is strangling the American economy, she calls for more regulatory authority not just in Washington, but for the president himself.

“At a time when American security is facing internal and external threats and our nation is still engaged in two foreign wars simultaneously, she advocates banning military recruitment on campuses because of her compulsion to see open homosexual behavior flaunted in the ranks.

“At a time when Americans have been stripped of their ability to write their own laws protecting the lives of the unborn, she advocates the creation of task forces to investigate and prosecute peaceful pro-life activities.

“At a time when Americans are recognizing the unique blessings of their Constitution, she advocates the consideration of foreign laws in shaping Supreme Court rulings.

“For all of these reasons and more we will surely learn about in the days ahead, please reject the nomination of Elena Kagan.”

 Courtesy of http://www.wnd.com/index.php?fa=PAGE.view&pageId=175705

Kagan’s Views on Religious Freedom Revealed

WASHINGTON — As a young White House lawyer, Elena Kagan waded deeply into politically volatile issues like abortion, immigration and religious freedom that may eventually come before her if she is confirmed to the Supreme Court, according to documents released Friday.

Ms. Kagan pushed back against President Bill Clinton when she thought his position on a controversial form of late-term abortion was unconstitutionally restrictive but backed other options that fellow administration lawyers considered unconstitutional. She argued against state interference with religious views and against local interference with federal immigration law.

She was also more involved than previously known in helping to coordinate the Clinton White House defense against the investigation into the Whitewater land deal and the sexual harassment lawsuit filed by Paula Jones, arguing at one point against emphasizing a broad assertion of presidential immunity. But many documents related to the Jones suit were redacted by Mr. Clinton’s presidential library on grounds of privacy or confidential advice to the president.

As an associate White House counsel from 1995 to 1996, Ms. Kagan provided advice to a president with his own political agenda, so it is hard to gauge how much her analyses reflected her own views or how they would apply if she had the authority of a Supreme Court justice. But since she has never served as a judge and has done only a limited amount of scholarly writing, the 43,000 pages released Friday offer a rare look at her legal thinking that may influence her coming confirmation hearings.

The papers were the second batch released by the library, for a total of nearly 90,000 pages from her files as associate counsel and later deputy domestic policy director. The library plans to release another 70,000 pages of e-mail messages before the Senate Judiciary Committee opens hearings June 28, but Republicans argue that they need more time to examine the material.

Ms. Kagan’s involvement in the debate over the procedure that opponents call partial-birth abortion may be grist for the hearings. As an alternative to Republican-sponsored legislation in 1996, Mr. Clinton’s staff outlined four options, and he focused on one that would ban the procedure even before the fetus was viable except to avert death or serious health consequences for the woman.

“You’re right — this is a problem,” Ms. Kagan wrote in a note to her boss, Jack Quinn, the White House counsel. “He seems as if he wants Option 1.”

Mr. Quinn wrote back: “E — HE DOES. JQ.”

Ms. Kagan and other administration lawyers concluded that would violate the Supreme Court’s Roe v. Wade ruling that established a woman’s right to an abortion before viability.

“The problem with this approach is twofold,” she wrote. “First, it is unconstitutional.” And “second, the groups will go crazy.”

She also wrote that any bill had to have a health exception to be constitutional, even though the Supreme Court a decade later would uphold a “partial-birth” abortion ban without one. On the other hand, she concluded that two options to restrict the procedure that the Justice Department considered unconstitutional would pass muster.

On immigration, Ms. Kagan was dismissive of a New York City lawsuit challenging a federal law allowing city employees to report illegal immigrants even though local law forbade it. The suit relied on the 10th Amendment, which reserves powers not delegated to the federal government to the states or the people and which is often cited by these days by the Tea Party movement.

Ms. Kagan called New York’s suit “nearly frivolous” and wrote that “the federal government has strong institutional interests at stake in defending against such 10th Amendment claims.” A federal appeals court affirmed dismissal of the suit in 1999.

When another appeals court struck down an Arizona constitutional amendment mandating that state officials use only English in documents and state business, Ms. Kagan urged the administration to stay out of the case, noting that some thought the ruling was “extremely expansive and very possibly wrong.”

“All in all,” she added, “it seems that the best course here is to do nothing. From a political standpoint, we don’t want to highlight this issue. From a legal standpoint, we don’t want to defend the Ninth Circuit’s decision.”

In another case, she recommended that the federal government intervene in a case to support religious freedom. The California Supreme Court ruled that a landlord violated a state law prohibiting housing discrimination by refusing to rent an apartment to an unwed couple because she considered sex outside marriage to be a sin.

Ms. Kagan scorned the California justices’ rationale that the landlord’s religious freedom was not burdened because she could get another job. “The plurality’s reasoning seem to me quite outrageous — almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state,” Ms. Kagan wrote.

She also helped Mr. Clinton navigate two of the most contentious scandals of his presidency in Whitewater and the Jones lawsuit. Mr. Clinton withheld some of those records from public view on Friday but agreed to let senators have private access to them.

But the documents that were released make clear that Ms. Kagan was part of a White House effort to defend the secrecy of presidential deliberations. In the Whitewater case, she worked to deflect a Senate subpoena for notes of meetings between the White House and private lawyers. She solicited supportive statements or op-ed articles from former officials and law professors, even ghostwriting or editing some of them.

In the Jones case, Ms. Kagan served as a link between the White House and private lawyers as they argued that a sitting president should not be forced to testify in a civil law suit about behavior before taking office.

In one memorandum, she praised a brief arguing the case on narrow legal grounds. “The brief (in my view correctly) downplays the question whether the president has constitutionally mandated immunity from civil suits involving pre-presidential conduct,” Ms. Kagan wrote, arguing instead for discretion by a judge to postpone testimony until after the presidency.

Ms. Kagan’s ambition emerges in the documents. She angled to become head of the Justice Department’s Office of Legal Counsel, collecting recommendation letters and telling a senior White House official that she had the support of then-Senator Joseph R. Biden Jr., a previous boss.

She did not get that job, but was later nominated to a federal appeals court. Weighing her qualifications, Charles F. C. Ruff, Mr. Quinn’s successor, wrote that at 38 she “would be considered very young and inexperienced for this highly prestigious judgeship.” Mr. Ruff added that her review of a book on confirmation hearings “cuts both ways politically” because “Senate Republicans will not appreciate her conclusion” that their party is responsible for politicizing the process.

The Senate never acted on her nomination.

Courtesy of http://www.nytimes.com/2010/06/12/us/politics/12kagan.html?pagewanted=2&src=twt&twt=nytimes

Chief Justice Roberts: Kagan Asked Court to ‘Embrace Theory of First Amendment That Would Allow Censorship Not Only of Radio and Television Broadcasts, But Pamphlets and Posters

(CNSNews.com) – Solicitor General Elena Kagan, nominated Monday to the U.S. Supreme Court by President Barack Obama, told that court in September that Congress could constitutionally prohibit corporations from engaging in political speech such as publishing pamphlets that advocate the election or defeat of a candidate for federal office.

Kagan’s argument that the government could prohibit political speech by corporations was rejected by a 5-4 majority of the Supreme Court in the case of Citizens United v. Federal Election Commission. Justice Anthony Kennedy wrote the majority opinion in that case, and in a scathing concurrence Chief Justice John Roberts took direct aim at Kagan’s argument that the government could ban political pamphlets.

“The Government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern,” wrote Roberts. “Its theory, if accepted, would empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations—as the major ones are. First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy.”
 
Justice Kennedy described the law Kagan had defended as an illegitimate attempt to use “censorship to control thought.”
 
“When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought,” Kennedy wrote in the majority opinion. “This is unlawful. The First Amendment confirms the freedom to think for ourselves.”
 
In March 2009, six months before Kagan told the court that the government could bar corporations from publishing political pamphlets, her deputy solicitor general, Malcolm Stewart, had gone further, telling the court the Constitution authorized Congress to prohibit corporations from publishing full-length books that included passages advocating the election or defeat of a candidate for federal office.
Kagan’s September statement that the government could ban pamphlets was meant to be a retreat from Stewart’s earlier position.

Stewart and Kagan both presented oral arguments to the court in the Citizens United case because the court took the unusual step of ordering the litigants to make their arguments twice. This was because the court decided after the initial round of oral arguments that it wanted to consider broader issues in the case than originally contemplated and perhaps roll back some of the recent precedents it had established on government regulation of political speech.

The immediate issue was whether Citizens United, a conservative non-profit corporation, could distribute a documentary—”Hillary: The Movie”—via Video On Demand, during the 2008 Democratic presidential primary season. The Federal Election Commission said it could not do so because the Bipartisan Campaign Reform Act of 2002 (BCRA, also known as the McCain-Feingold law) prohibited corporations from broadcasting “electioneering communications” within 30 days of a primary election and 60 days of a general election. “Electioneering communications” were defined as communications that mentioned the name of a candidate for federal office.

The case also examined a broader provision of campaign finance law, known as 441b, which prohibited corporations from spending any of their general treasury funds on speech that expressly advocated the election or defeat of a candidate. As the law stood, if a corporation wanted to express its views on political campaigns it had to start a separate Political Action Committee (PAC) and raise funds from contributors to do so.

The First Amendment to the Constitution says: “Congress shall make no law … abridging the freedom of speech, or of the press.”

In the first round of oral argument in Citizens United, which took place on March 24, five days after Kagan took office as solicitor general, Chief Justice Roberts, and Justices Anthony Kennedy, Samuel Alito and Antonin Scalia all questioned Deputy Solicitor General Malcolm L. Stewart, probing to discover where the Obama administration believed the First Amendment drew the line on government prohibitions on political speech.

Roberts asked Stewart if the government could prohibit a corporation from publishing a 500-page book that said at the end people should “vote for X.” Stewart said such a book could in fact be prohibited under federal election law because it was “express advocacy.” Then Roberts said he wanted to know what the administration’s position was on the constitutionality of that provision.

“Yes, our position would be that the corporation could be required to use PAC funds rather than general treasury funds [to publish the book],” said Stewart.

“And if they didn’t, you could ban it?” asked Roberts.

“If they didn’t, we could prohibit the publication of the book using the corporate treasury funds,” said Stewart.
 
When the court heard oral arguments in the case again on Sept. 9, 2009, Kagan personally made the case for the administration. Justice Ruth Bader Ginsburg asked Kagan if the administration stood by its position that the government could ban books.

“May I ask you one question that was highlighted in the prior argument, and that was if Congress could say no TV and radio ads, could it also say no newspaper ads, no campaign biographies?” asked Ginsburg. “Last time the answer was, yes, Congress could, but it didn’t. Is that–is that still the government’s answer?”

Kagan told Ginsburg that the administration had changed its position. It now believed that although the law itself allowed the government to ban corporations from publishing books, it believed that if the government actually tried to do so a litigant would have a good case challenging that prohibition in court.

“The government’s answer has changed, Justice Ginsburg,” said Kagan. “It is still true that BCRA [section] 203, which is the only statute involved in this case, does not apply to books or anything other than broadcast. 441b does, on its face, apply to other media. And we took what the Court–what the Court’s–the Court’s own reaction to some of those other hypotheticals very seriously. We went back, we considered the matter carefully, and the government’s view is that although 441b does cover full-length books, that there would be quite good as-applied challenge to any attempt to apply 441b in that context.”

Chief Justice Roberts, however, wanted to pin Kagan down on how far she believed the government could go in banning speech by corporations. He specifically asked her if the government could ban a pamphlet published by a corporation. She indicated the government could do that.

“If you say that you are not going to apply it to a book, what about a pamphlet?” asked Roberts.

“I think a pamphlet would be different,” said Kagan. “A pamphlet is pretty classic electioneering, so there is no attempt to say that 441b only applies to video and not to print.”

When President Obama announced Monday that he was nominating Kagan to the Court, he said that the Citizens United case was the first that she had argued before the court as solicitor general, and her decision to do so had been indicator of her “commitment to protect our fundamental rights.”

“I think it says a great deal about her commitment to protect our fundamental rights, because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens,” said Obama