Questions for Elena Kagan

With a reliably liberal justice like John Paul Stevens stepping down from the Supreme Court, his potential replacement Elena Kagan has a lot to prove when looking for support.

Since her nomination hearings are set to begin Monday, groups are weighing in on what the Judiciary Committee should be asking her.

The Secular Coalition for America is opposing her nomination:

… Secular Coalition for America opposes Ms. Kagan’s nomination until she makes her support for church-state separation much more clear and emphatic. Five instances raise grave concern that Ms. Kagan does not share the judicial philosophy of Justice Stevens…

It is possible that during her confirmation hearings, Ms. Kagan will expand upon her positions, and emerge a more acceptable nominee. But for now the evidence points in an unfavorable direction. The Secular Coalition for America has composed a series of questions addressed to members of the Senate Judiciary Committee that will hopefully clarify where Solicitor General Kagan stands on a series of church-state related issues which we strongly urge the committee to ask.

Among the questions sent to Senator Patrick Leahy:

2. Under the rubrics of charitable choice and the Faith-Based Initiative, religious organizations that receive federal grants to provide social services have been permitted or even encouraged to use religious criteria to discriminate in hiring for the programs receiving those grants. Do you believe that taxpayers can be subjected to employment discrimination by religious institutions when applying for jobs financed by their own tax dollars?

4. In your testimony at your hearing for confirmation as Solicitor General, you stated that “religious organizations are different and that these differences are sometimes relevant for the purposes of government funding.” How are religious organizations different from secular organizations for First Amendment purposes? What limits does the Establishment Clause place on government funding that flows to faith-based organizations? In what other ways does the special nature of religious institutions call for different treatment under the Constitution?

10. In a memo dated May 20, 1999, you stated you were the “biggest fan of RFRA” in the White House. Please explain what you meant by this statement. Do you agree with the Court’s ruling in City of Boerne v. Flores 521 U.S. 507 (1997)? Also, please expound on your views regarding RFRA as applied to the federal government.

Americans United hasn’t outright opposed her nomination but they have the same kinds of questions:

The Rev. Barry W. Lynn, Americans United executive director, said he hopes the committee accepts its responsibility to question Kagan on her church-state perspective.

“It is imperative,” said Lynn, “that senators ask Kagan about her stance on religious liberty. We have carefully researched her record, and there are issues that raise concern. I think she should have the opportunity to clarify exactly what her views are.

“Religious liberty should not be used as a sword to override civil rights laws that protect all Americans,” Lynn continued, “and the government should not use taxpayer dollars to fund religion. That’s what the Constitution mandates, and I hope Kagan shares that perspective.”

Ditto with the Center for Inquiry.

Ditto with the American Humanist Association.

For some questions, it should be easy to just clarify what she meant. But for others, it’s very likely that Kagan will find a way to avoid them altogether. All she has to say is that a similar case may come her way in the future so she can’t pass judgment right now. And we’ll learn nothing. And she’ll be confirmed.

We just have to hope she’ll make the right decisions in the future.

It’s not a comforting thought, but I hold out hope that she advocates church/state separation and there are good explanations for her past actions.

  • tim

    Isn’t this is all academic? Unless it is discovered that she is carrying an affair with Hugo Chávez (or his wife) – she will be confirmed.

  • Frank

    Can somebody please explain where this idea that a nominee shouldn’t answer questions about cases that may come before her in the future comes from? Isn’t that precisely what the senators are supposed to be asking about? What on earth could be more relevant to whether she should be confirmed or not?

  • http://seangill-insidemyhead.blogspot.com SeanG

    Nominees shouldn’t answer questions about future cases, at least not how they would rule on those cases, because that would show bias. Logically, how can there be enough information in a short question to decide how you would rule on a case.

    A supreme court justice is supposed to be unbiased and provide and interpretation of the law as it applies to the case, not their personal opinion of the law. Emphasis on “supposed to”.

    I hope Kagan does provide some sort of answer to those questions. But if she reveals to much bias with those answers, to the left or the right, it could derail her nomination.

  • Deiloh

    I’ve been reading Howard Zinn. Good way to get really cynical about the United States. Anyway, somewhere in the first chapters of his People’s History he states, “Government impedes Democracy.” Historically, the Supreme Court has been just as bad for the public as good. If Kagan ends up being a poor choice, it’ll be business as usual. One thing that I appreciate about Mr. Zinn’s writing: power has always been in the hands of the people, they just have to get organized and use it.

  • Epistaxis

    Can somebody please explain where this idea that a nominee shouldn’t answer questions about cases that may come before her in the future comes from? Isn’t that precisely what the senators are supposed to be asking about? What on earth could be more relevant to whether she should be confirmed or not?

    No, that’s precisely not what they should be asking about. Then Congress would be pre-emptively deciding court cases by vote. That’s completely contradictory with the constitutional separation of powers.

    The judicial system isn’t supposed to be a democracy, not even a representative one. The Supreme Court is there to interpret the laws that Congress has passed, not to cater to the whims of the people. If you think a potential nominee’s views are inconsistent with precedent or prejudiced against a certain group, then by all means, oppose her nomination. But you don’t get to choose a Justice who will selectively reinforce laws you like and nullify ones you don’t. Leave the lawmaking to your elected lawmakers.

  • Frank

    SeanG,

    If Kagan were asked how she would rule on a potential future case seeking to overturn Brown v Board and re-establish separate but equal as the law of the land, and she refused to answer the question because such a case may come before her in the future, would you really think she had done the right thing? What if she were asked how she would rule on a potential future case seeking to legalize gay marriage, and she said she would rule in favor of legalizing gay marriage? Would that really be showing bias? What is the difference between showing bias and knowing what is the right thing to do? Cause I don’t see one.

    The fact is that on the cases that really matter, the supreme courts job is absolutely NOT to simply interpret the constitution. On the big questions that they will have to deal with in the coming years, abortion, gay rights, church state separation, privacy, the constitution simply is not specific enough to provide the answers. The justices have to do their best to make good policy on those subjects. That is their job. And the only way we are going to know what kind of policy Elana Kagan would make before she is confirmed is if the senators ask her and insist on getting answers. That is their job, and it is high time that they learn to do it. That is part of the constitutional principle of check and balances.

  • Dan W

    Hmmm. I tend to be fairly wary of almost all Supreme Court nominees. I hope Elene Kagan can explain some of her previous statements adequately, and hopefully we can get another Supreme Court Justice who supports equality and church-state separation.

  • muggle

    I’m with Hemant and Frank. Why can’t we ask them things like how gay marriage for instance relates to the constitution. Given that they’re the ultimate authority on whether or not something’s constitutional and they are guaranteed the job until they retire or die and the implications of every decision they make, I think they should be grilled over coals as to how they interpret the constitution.

    Not just church-state matters but things like the right to bear arms. Hunting rifles and pistols are one thing but we now have to worry about things like machine guns and shoulder-fired missles that the writers of the constitution could not have foreseen. And the problems we’re currently having with borders and illegal immigration.

    And the difference between establishing a religion or the free exercise thereof can be a very fine line. We have to balance religious freedom with human rights and the safety of our government. Human sacrifice is outlawed because we think the human right to live overrides any religious belief in human sacrifice.

  • plutosdad

    I am concerned about her apparent lack of support for the first amendment. It is already under attack by both parties and the current President. It’s only getting worse (who’d have thought it could get worse).

    However, one thing is everything she wrote while working for the government was what she was required to write. So when she, as a representative of the government, sued to prosecute someone for violating McCain Feingold, it doesn’t necessarily mean she personally supported it.

    The bad thing is, ever since the Bork nomination was killed, we basically are only appointing people we know almost nothing about, since the slightest bit of personal belief that gets out kills any nomination. And these people have the ultimate power in our society.

  • http://insidemyhead.blogspot.com SeanG

    Frank says:

    If Kagan were asked how she would rule on a potential future case seeking to overturn Brown v Board and re-establish separate but equal as the law of the land, and she refused to answer the question because such a case may come before her in the future, would you really think she had done the right thing?

    Please note that I did not say “judges should just interpret the constitution.” What I said was that judges should interpret the law as it applies in each case. There is a lot more nuance there than you give me credit for. And this goes for the constitution, the federal government, all the way down to your city board, should such a case make it to the supreme court.

    In a case like Brown v Board, she can talk about precedent. It’s a case already decided by the supreme court. Yes, if she said she would rule in favor of gay marriage in a future case without hearing facts presented by two sides in a court hearing, she would be stating bias. A bias that I and many FA readers support, but still an opinion drawn from a hypothetical question. Even a question that asks about the constitutional validity of a law, in the hypothetical, can reveal bias. And I’ll say it again, it doesn’t matter whether we agree with her bias or not, her job is to interpret the law and its application. If she shows enough bias, you can bet the republicans will go bonkers. As it looks in the news now, senators are mostly grandstanding and her nomination will likely pass the judicial committee. We’ll see what happens when it reaches the full senate.

    I would like to see a liberal leaning judge. The supreme court has drifted right for the past 20 years (or more). But were not going to get there if a nominee goes before the senate and says “I support gay marriage!”


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