The Rule of Law Not the Rule of Judges
By Rep. Lamar Smith
Next week the Senate Judiciary Committee will take up the nomination of Elena Kagan for the U.S. Supreme Court. While its no surprise that a liberal President would nominate a liberal to serve on the Supreme Court it is disappointing and I am concerned that Elena Kagan will be a Justice that believes in the rule of judges" rather than the rule of law" established by the Constitution.
Former White House Counsel Greg Craig has said that Kagan is largely a progressive in the mold of Obama himself."
What is important in a potential Supreme Court Justice isnt political ideologybut rather a clear understanding of the role and limits of a federal judge.
To ensure a balance of power Americas Founders established three branches of government. The Legislative Branch to write laws. The Executive Branch to enforce the law. And the Judiciary to ensure that the laws are consistent with the Constitution as drafted by the Founders.
The Constitution is meant to be a compass for each branch of government. Judges who are expressly loyal to a specific political ideologywhether liberal or conservativeand place that loyalty above a commitment to the Constitution as written run the risk of imposing their political beliefs on a system that was created to be free of political influence.
If our laws do not have fixed meanings but are rather bent to the whims of individual Justices then there can be no rule of law" but only rule by judges."
In her graduate thesis Kagan wrote sympathetically of an activist Supreme Court that in her words asserted its right" to lead the nation." This fundamental misunderstanding of the role of the Court is regrettable. The
Supreme Court is not supposed to lead the nation." That role belongs to the people through their representatives in Congress.
During her tenure as a clerk on the Supreme Court Kagan wrote a memo describing a case in which a man had challenged the District of Columbias gun control restrictions on the grounds he had an individual right to bear arms under the Second Amendment. Kagan was not sympathetic" to the argument that the Second Amendment protects an individuals right to bear arms.
As Dean of Harvard Law School Kagan opposed legislation designed to prevent terrorists convicted in military tribunals from gaining additional constitutional rights through civilian courts. She joined other liberal law school deans in comparing that legislationwhich was passed on a bipartisan basis by Congressto a dictatorship.
Terrorists should be treated as enemies of war not common criminals. The Constitution does not require us to give citizens rights and freedoms to enemy combatants. Again Kagans argument prioritized her personal political ideology over the guiding principles of the Constitution.
As Solicitor General Kagan took the position that the government can ban movies books or pamphlets that support or oppose candidates for federal office. Her office said that the government could ban a wide variety of materials if it didnt like the speaker or the speech.
Fortunately the Supreme Court threw out this blatant government intrusion on the First Amendment right to free speech.
In one of the most prominent issues likely to come before the Supreme Court in the next few years a states right to play a role in the enforcement of
immigration laws Kagan opposed the states right.
In 2007 the state of Arizona passed an immigration law that allowed it to revoke the business licenses of businesses that knowingly hire illegal immigrants. The provisions were challenged but upheld in both the district court and even the notoriously liberal Ninth Circuit Court of Appeals.
But instead of letting the law and the lower court rulings stand Kagan recommended that the Solicitor General urge the Supreme Court to review and overturn the law.
Perhaps one of the most controversial decisions of Kagans career was her support of banning military recruiters from Harvards campus because of her personal opposition to the militarys dont ask dont tell" policy. Again her political views clouded her professional judgment.
A provision of federal law called the Solomon Amendment says that educational institutions that deny military recruiters access equal to that of other recruiters will lose federal funds. Kagan argued that the law was unconstitutional and that educational institutions should be able to deny access to the military without forfeiting federal funding.
Her arguments were rejected unanimously by the Supreme Court. In the Courts opinion Kagans legal theory if accepted would have rendered the law largely meaningless."
As a lifetime appointed Supreme Court Justice Kagan could regularly render the Constitution itself largely meaningless" by ignoring its text and imposing her
personal political views on Court decisions.
Thats why the Senate must fully examine all aspects of Kagans experience political views and judicial philosophy.
Rep. Lamar Smith is the House Judiciary Committee Ranking Member.
