Published May 12, 2010
Anyone who thinks that Elena Kagan as a nominee for the Supreme Court is a replacement for Justice Stevens is dreaming. President Obama went for a choice that he knew would make it through the confirmation process. He wanted someone who would not ruffle too many of the feathers of the moderate Republican lawmakers he needs to pass his legislative agenda as well as approve her nomination.
The Tea Party right is already taking aim. They are accusing her of a left-wing agenda since she banned military recruiters on the Harvard Law School campus. They are all over her senior college thesis on the decline of socialism. The problem is that the thesis is not her view, it was an academic exploration on why socialism failed in the early part of the last century. Her thesis adviser said she was the furthest thing from a socialist and always had been.
My concerns have to do with some of her stated positions. When she appeared before Congress at her confirmation hearings to become solicitor general, she was asked if she agreed that we're at war. She said she did. And she stated that indefinite detention without trial could apply even if someone was not picked up on a literal battlefield, such as somebody in the Philippines who might be suspected of financing Al Qaeda terror networks around the world. She agreed with this statement. There isn't a liberal in the world that would agree on indefinite detention, let alone picking up someone not in a battlefield situation.
Her other opinions include a declaration that gay marriage is not a constitutional right. Her views on a strong executive branch fly directly in the face of those who believe in more balance among the three branches of government.
Her hiring record at Harvard Law School is scary. Out of thirty-two tenure and tenure track positions, one was a minority and seven were women. That is not exactly a sterling record for someone whom the right would like to paint as a liberal. She may bring diversity to the Court, but her hiring practices at Harvard Law School certainly did not bring them there.
President Obama has chosen somebody with a scant paper trail, who hired conservatives at Harvard Law School. Elena Kagan is not someone who will fill Justice Stevens' shoes. That time has probably passed and it saddens those of us who hope that the Court remembers Justice Earl Warren and the more liberal interpretation of the law. Elena Kagan just doesn't fit the bill.
Ellen Ratner is Washington Bureau Chief for Talk Radio News Service and a Fox News contributor.
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