Senator Orrin Hatch (R, Utah) makes the case against confirming Solicitor General Elena Kagan to the Supreme Court:
In a 1997 legislative-strategy memo after President Clinton vetoed the Partial Birth Abortion Ban Act, Ms. Kagan urged him to support substitutes offered by Democratic senators. This tactic was intended to siphon votes away from a veto override, and, because the substitutes would not pass, leave partial-birth abortion unlimited. She made this political recommendation, however, even though the Justice Department’s Office of Legal Counsel concluded that the substitutes were unconstitutional under Roe v. Wade. It appears that her personal or political views trumped her legal views…
Ms. Kagan’s hearing did nothing to temper the picture of judicial activism painted by her record. Despite the excessive media and political attention one can receive, a confirmation hearing is only a small part of the picture for any nominee, and Supreme Court hearings have become less and less meaningful, with nominees prepared and prepped to provide answers that are more form than substance. Ms. Kagan, for example, referred to any previous Supreme Court decision as “settled law,” whether it was two days or two centuries old. Her pledge to give such “binding precedent . . . all the respect of binding precedent” told us nothing more. In effect, she said that a decision is a decision and a precedent is a precedent — not much to go on.
Ms. Kagan chose not to answer many questions by various senators about a range of issues. I spent 30 minutes asking her about freedom of speech, campaign-finance reform, and the Citizens United v. FEC case, which she argued before the Supreme Court. I asked for her own views, but she instead told me what Congress said, what she argued before the Court, and what the Court held. I already knew those things because I had read the statute, the transcript, and the opinion. She would not even admit that she had in fact written the 1996 memo about partial-birth abortion that not only bore her name but included her handwritten notes. After three attempts, all she would say is that it was in her handwriting; I suppose that left open the possibility that it had been forged.
Presidents should have a certain leeway in getting their nominees approved to cabinet and the Supreme Court, but senators have the constitutional authority to approve or reject those who are unqualified or otherwise seriously questionable appointees. A senator facing the decision to confirm or reject Kagan could legitimately oppose her on the basis that there is not enough information to confirm her to the highest court in the land.
