Mike Johanns Elena Kagan 'a proclivity towards judicial activism'

Mike Johanns speaks after being nominated by George W. Bush for U.S. Secretary of Agriculture, 2004

"a proclivity towards judicial activism" that's a nice way to say it. Johanns Opposes Kagan Supreme Court Nomination July 8, 2010 WASHINGTON Sen. Mike Johanns today made the following statement announcing his opposition to Elena Kagan to be the next Supreme Court Justice:

“After thoroughly reviewing her record and listening to remarks at her hearing, I have come to the conclusion that I cannot support Ms. Kagan’s nomination. Judges must adhere to the Constitution and must not interpret the law based on an activist, ideological agenda. The court is not a place to create laws, and I am not convinced Ms. Kagan understands this fundamental premise. Her long career as a political advisor and an academic insufficiently prepares her for a lifetime appointment to our nation’s highest court. Not only does she lack experience on the bench, but her record clearly demonstrates a proclivity towards judicial activism.

“Her views and actions on abortion are particularly alarming. As an advisor to the Clinton administration, Ms. Kagan led the fight to keep partial-birth abortion legal. She even went so far as to insert her own personal beliefs in the place of science—extremely disturbing given the horrific nature of partial-birth abortion.

“Ms. Kagan also has a troubling record as Dean of Harvard Law School. I'm disturbed by her decision to actively defy federal law by banning military recruiters from campus during a time of war. Furthermore, I'm concerned about her views on the second amendment. The right to bear arms is a Constitutional right that I take very seriously, and judges must seek to protect it.

“Finally, Ms. Kagan appears to believe the federal government’s power over the individual rights of our citizens is virtually limitless. The Supreme Court Justices must ensure any law Congress creates does not infringe on the Constitutional rights of our country's citizens, not be a rubber stamp for unconstitutional laws that threaten an individual's personal freedoms. For these reasons, I will vote against Ms. Kagan’s nomination to the U.S. Supreme Court.”

Background:

• When the Supreme Court struck down Nebraska's ban on partial-birth abortions in 2000, it backed up its decision with language from a purportedly non-partisan physicians' group. Yet it has been reported that the critical part of that statement was not written by doctors, but by Elena Kagan, who at the time was a White House policy adviser to President Clinton. This language essentially overrode scientific findings against partial-birth abortion in favor of Ms. Kagan's view.

o “The documents involved date from the Clinton White House. They show Miss Kagan’s willingness to manipulate medical science to fit the Democratic party’s political agenda on the hot-button issue of abortion.” (National Review Online, “Kagan’s Abortion Distortion,” 6/29/10)

• In 2003, then-Harvard Law School Dean Kagan banned military recruiters from campus because of the military’s long-standing policy, "Don't Ask, Don't Tell." In March 2006, the Supreme Court unanimously repudiated Kagan's position. (“Potential Court Pick Faced Dilemma At Harvard,” The New York Times, 5/7/10)

• Ms. Kagan worked on numerous anti-Second Amendment initiatives as a senior advisor in the Clinton Administration. At the center of an anti-gun rights Administration, she worked to advance its policy agenda. (The Washington Post, “Papers Covering Elena Kagan’s Time As Clinton Adviser Released,” 6/5/10)

o “Kagan was immersed in initiatives on gun control." (The Washington Post, “Papers Covering Elena Kagan’s Time As Clinton Adviser Released,” 6/5/10)

• During Ms. Kagan’s hearing before the Senate Judiciary Committee, Sen. Tom Coburn (R-OK) asked Kagan her views on the limits of the Commerce Clause. He asked whether a federal law requiring each individual to consume three fruits and vegetables a day would be constitutionally objectionable. Ms. Kagan ducked the question and never stated whether such a law would violate liberty or privacy protections found in the Constitution. (Transcript, Elena Kagan Confirmation Hearings, 6/30/10)

o “The real question here is whether Ms. Kagan recognizes any limits on the Commerce Clause, which legislators have used as justification to regulate or mandate just about anything, and which the Obama Administration is eyeing as its golden ticket to defend ObamaCare.” (Wall Street Journal, “Kagan’s Commerce Show-and-Tell,” 7/1/10)

U.S. Senator Mike Johanns for the State of Nebraska: Washington, D.C. Office: 404 Russell Senate Office Building Washington, DC 20510 Tel: (202) 224-4224 Fax: (202) 228-0436 Hours: 8:30 a.m. - 6:00 p.m. ET