Two prominent Republican voices, one who has a say in the confirmation hearings for U.S. Supreme Court nominee Elena Kagan, held a virtual town hall on Wednesday. While the two men–Republican U.S. Sen. Jeff Sessions, the ranking member of the Judiciary Committee, and Reagan-era U.S. Attorney General Ed Meese—stressed that they would reserve judgment on Kagan until the hearings conclude, they repeatedly cited evidence they say indicates she would be an “activist” judge.
Sessions said he was “troubled” that some of her self-proclaimed heroes in the legal world are the late Supreme Court Justice Thurgood Marshall and former Israeli Supreme Court President Aharon Barack. Both are considered some of the most activist judges in American and world history, Sessions said.
“Judge Barak says the way to bridge the gap between law and life-changing reality…is to give new meaning” to a statute, something that is solely the role of lawmakers, not the courts, Sessions said.
Kagan, who currently serves as President Obama’s solicitor general, brought Judge Barak to Harvard—where she was dean of the law school—twice and praised his career, Sessions said.
Meese added that he thinks Kagan will have to distance herself from these activist judges, somehow stating that she disagrees with her heroes.
Meese repeatedly referred to judicial activism as an “impeachable offense.” Such rulings that don’t interpret the law as written, he said, “violate their oath of office.” And if President Obama appoints someone whom he knows doesn’t follow Constitution, then he’s violating his oath of office, too.
Most callers were from the Deep South. While they left alone the topic of “Don’t Ask Don’t Tell,” which Kagan had sharp words about as dean at Harvard Law School, callers showed how afraid they were of Kagan becoming the next justice on the high court.
The tone of the conversation was that Kagan would be unfriendly to individual gun-ownership rights, pro-choice—including partial-birth abortion—and a Socialist.
“One she’s in, can we get her out?” one person asked. TRIVIA: Only one Supreme Court Justice, Samuel Chase (one of the signatories to the Declaration of Independence), has ever been impeached. The House of Representatives accused Chase of letting his Federalist political leanings affect his rulings, and served him with eight articles of impeachment in late 1804. The Senate acquitted him of all charges in 1805, establishing the right of the judiciary to independent opinion. Chase continued on the Court until his death in June 1811.
Sessions told callers that it will be difficult to filibuster Kagan’s nomination or to delay the hearings, which are supposed to commence on Monday, because Democrats have strong majorities, both in the full Senate and on the Senate Judiciary Committee.
While Sessions said considerable document production has occurred on Kagan’s career, there remain 1,600 documents withheld on privacy grounds, including documents from the Clinton library (she worked in his administration).
Some of the withholdings could be legitimate, like those revealing health issues, Sessions said, but Clinton is not objective in determining which Kagan documents to release because she worked for him.
Since she doesn’t have a judicial record, Sessions said it will be necessary to press her more than anyone to know if she’ll be faithful to the law.
In 1995, Kagan wrote a law review article praising Robert Bork’s confirmation process as the standard by which all should be met. He was forced to get very specific on his views, but that led to his rejection to the high court by the U.S. Senate in 1987 under President Reagan.
Those hearings are viewed by many as turning point in the Supreme Court confirmation process, where now people say things they don’t really mean and don’t get specific at all to avoid controversy
Bork participated in his own tele-conference this week with anti-abortion group Americans United for Life. During the call, Bork criticized Kagan’s judicial “immaturity” and inexperience.
Bork believes that Kagan’s nomination was rooted in the president’s desire to make history with the nomination of an additional woman to serve on the high court. “For some reason, presidents get all excited for having ‘firsts’, and this would be the first court with three female judges on it,” he said, according to news reports.