There is only one litmus test that ought to be applied to a Supreme Court nominee, and that is the question of whether or not he or she is an Originalist. The political ideology of a Supreme Court nominee has no bearing on his or her qualifications to be a judge and thus should not be a justification for his or her appointment or confirmation. A Supreme Court justice should not be conservative, liberal, compassionate, empathetic, pro-business, pro-abortion, pro-regulation or pro-war. A justice must simply be pro-Constitution. He or she must interpret the language of the Constitution according to its original context and meaning. The Constitution is a legal contract. The terms and conditions therein cannot be changed by simply interpreting them to mean the opposite of what they originally meant. Because the Constitution is the only restraint on the federal government’s power, interpreting it subjectively, as “living and breathing,” gives the government authority over our lives that the framers never intended. Originalism protects our liberty by protecting the Constitution.
Elena Kagan is not an Originalist. At best she is a partisan liberal and at worst a judicial activist. Kagan was on the wrong side of the Citizens United case, where the Supreme Court struck down the unconstitutional portions of the McCain-Feingold campaign finance laws that barred American corporations from funding political broadcasts. The federal government was never given the authority to regulate how much money an individual or business can spend, whether on private transactions or to promote a political candidate. In politics, monetary contributions are how citizens express their support for a candidate, therefore political donations are protected under free speech. Yet when the Supreme Court upheld the First Amendment rights of Citizen United to fund a political film during an election, Kagan criticized the Court’s decision.
Kagan’s history of liberal activism in academia is equally disturbing. As dean of Harvard Law School, she prohibited Judge Advocate General’s (JAG) Corps recruiters from speaking to the law students, despite the fact that under the Solomon Amendment she was required to allow military recruiters on campus as long as the school was receiving government funding. Kagan’s only reasoning for her decision was that she felt the military discriminated against gays. She disobeyed federal law simply because she didn’t like what it said, and she only agreed to reverse her decision once the Department of the Defense threatened to withhold all possible funds from Harvard Law. Kagan then attempted to challenge the constitutionality of the Solomon Amendment, but in a unanimous 9-0 decision, the Supreme Court rejected Kagan’s appeal and upheld the law. Kagan found herself to the left of even the most radical judicial activists on the Court.
How can we trust Kagan to defend our constitutional liberties if she is hostile to the First Amendment? How can we trust her to properly interpret the law if she is a lawbreaker? The Supreme Court is an essential bulwark against government tyranny. It is no place for partisan activists like Elena Kagan.