[Please be in DAILY PRAYER that the right questions will be asked at the Senate hearings which began this week which will reveal the true dangerous nature of this Supreme Court candidate.]
As a judicial analyst for Focus on the Family Action, Bruce Hausknecht, J.D., is an attorney in charge of research and analysis of legal and judicial issues of interest to the family. He is a frequent contributor to CitizenLink Daily Update and Family News in Focus. Prior to joining Focus Action in 2004, Hausknecht practiced law for 17 years. Hausknecht provides insight into President Obama's Supreme Court nominee, Elena Kagan.
1. Why are pro-family groups opposing Elena Kagan's nomination?
We've heard the president emphasize his commitment to abortion-on-demand, his support for the repeal of the Defense of Marriage Act (DOMA), his opposition to Proposition 8 in California, and his professed desire to nominate judges who rule based on "empathy," rather than on the law and the Constitution. There's no doubt that the president searched for a nominee whose views are similar to his own. Although Elena Kagan has a thin — some would stay "stealth" — history with regard to hints of her judicial philosophy (she's never been a judge), there are indeed glimpses into her legal and constitutional views on several subjects near and dear to pro-family groups, and those glimpses are alarming.
2. What is a proper judicial philosophy for a judge, and why is that important?
Whether you call it "strict constructionism" or "constitutionalism" or "originalism," the ideal judge should interpret and apply the nation's laws and Constitution based on the plain meaning of the text, supplemented, where necessary, by an analysis of the original understanding of the law as best we can glean it from the historical record.
On the opposite end of the spectrum, the popular method of interpretation favored by liberals refers to the "living Constitution," which is an innocent-sounding euphemism that empowers activist judges to develop and create new constitutional interpretations based on their personal notions of how society should be evolving. In short, a living Constitutionalist has free reign to mold the law or Constitution into whatever he or she thinks is best for us. That's elitist, dangerous, and takes us in a direction our Founders never intended.
3. What has Elena Kagan said about same-sex marriage?
We know that as the current solicitor general (in charge of defending America's laws in court challenges around the country), Kagan has undermined the federal DOMA, which defines marriage as one man and one woman for all federal purposes. She's done so by admitting in legal papers filed with the courts that the Obama administration feels the law is discriminatory and ought to be repealed. She's further undermined DOMA in those cases by conceding that marriage has nothing to do with responsible procreation or child-rearing — a startling and ill-founded concession.
We also know of her well-publicized personal distaste for our country's law prohibiting gays from openly serving in the military. It's not hard to draw a line from her opposition to "Don't Ask, Don't Tell" to support for same-sex marriage.
4. Where does she stand on abortion?
There's no doubt that she'll be a strong supporter of abortion. First, President Obama has publicly announced that he would only nominate someone who showed a concern for "individual rights, which includes women's rights" — another euphemism that pro-family groups know from sad experience means abortion-on-demand.
Second, it appears she has donated to pro-abortion groups. Third, pro-abortion groups like Emily's List are already issuing press releases with glowing recommendations of Kagan. What do they know that we don't know? Finally, she has criticized a Supreme Court decision that upheld a federal ban on taxpayer dollars going to abortion, chiding the government for subsidizing "anti-abortion speech."
5. What can family advocates do?
Initially, they should realize they are not alone. Poll after poll says that the vast majority of Americans want center-Right judges who will rule based on the Constitution and the law's text, not based on whim, empathy or according to evolving societal standards. Then, do your homework:
(A) Follow CitizenLink.com and DriveThru blog for reports, analysis and updates on Kagan's nomination.
(B) Then, get active. The Senate has the responsibility to offer "advice and consent" on this nomination. There will be televised hearings before the Senate Judiciary Committee in late June or early July, and then a final up-or-down vote by the entire Senate sometime thereafter. Pay attention to these proceedings, and call, write or e-mail your senators to voice your opinion.(You can send your Senators an email by clicking on the button to the right of this blog.)
(C) Gear up for the November elections. Are your senators voting in accord with your wishes? Are they up for re-election this year? Elections have consequences. The Supreme Court is one of the biggest.
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