Wednesday June 30, 2010

Kagan Proves ‘The Artful Dodger’ on Abortion, Same Sex ‘Marriage’

Commentary by Peter J. Smith

WASHINGTON, D.C., June 30, 2010 ( – Elena Kagan’s confirmation testimony before the Senate Judiciary Committee Wednesday could probably be summed up in her own words written 15 years ago about such hearings: a “vapid and hollow charade” replete with “repetition of platitudes” and “personal anecdotes.”

The hearings, as Sen. Arlen Specter (D-Penn.) noted, have been largely devoid of “substantive discussion.” Kagan routinely gave so many non-committal and unrevealing answers to direct questions about her judicial philosophy that she could very well deserve the moniker “the artful dodger.”

On several occasions, Kagan would not answer directly whether she thought marriage was an issue to be regulated by state or the federal government.

In one such instance, referring to the ongoing federal court case against California’s same-sex “marriage” ban, Kagan told Sen. Chuck Grassley (R-Iowa), “I want to be extremely careful about this question, and not to in any way prejudge any case that may come before me.”

But she also indicated that she did not believe that the 1972 Baker v. Nelson decision (in which the Supreme Court ruled that a Minnesota law defining marriage as the union of a man and a woman was constitutional) was “settled law.” The Court decided to dismiss the case without hearing arguments from the homosexual couple who was denied a marriage license.

“It’s entitled to some precedential weight, but not the weight that would be given to a fully argued, fully briefed decision,” she said.

The gloves came off when Sen. Jon Kyl (R-Ariz.) began questioning Kagan. He latched onto a statement from her confirmation hearing for solicitor general, where she told the Senate, “There is no federal constitutional right to same-sex marriage.”

But rather than take those words at face value, Kyl wanted to know whether she believed no right to same-sex “marriage” exists under the U.S. Constitution or whether she meant that the courts have not “found” one yet.

Kagan demurred to answer directly. She instead said that all she meant was that she “understands the state of the law” and could defend the Defense of Marriage Act (DOMA) as the solicitor general.

On the matter of abortion, Kagan continued her tap-dance around her own legal beliefs, emphasizing instead what the courts had settled as law, and notably stated that all abortion regulations must protect a woman’s “health.” “With respect to abortion generally … I think that the continuing holdings of the court are that the woman’s life and that the woman’s health must be protected in any abortion regulation,” Kagan told Sen. Diane Feinstein (D-Calif.).

Laws that make exception for the woman’s health are, as one pro-abortion leader admitted at the Women Deliver conference this month, often broadly interpreted to provide for abortion-on-demand.

Kagan’s confirmation by the judiciary committee is basically a fait accompli, with Senators having to endure the formality of hearings, and ask questions that get answers everyone from Dana Milbank at the Washington Post to the Associated Press are describing as “dodgy.”

Nothing illustrates this better than the experience of Sen. Jeff Sessions (R-Ala.), who was unable to get a straight answer from Kagan as to whether she is a “legal progressive” or not.

Sessions asked, “Do you agree with the characterization that you’re a legal progressive?”

“I honestly don’t know what that label means,” she replied.

Sessions persisted, “Do you think that is a fair characterization of your views?”

“I think that people should be allowed to label themselves.”

This theater of the absurd will likely conclude on Thursday, although the schedule is a bit up in the air owing to the funeral of Sen. Robert Byrd (D-WV), who passed away this week at the age of 92.

Sen. Patrick Leahy (D-Vt.) says he is confident Kagan will be confirmed. As long as Senators are unwilling to vote “no” unless judicial candidates answer their questions – that will likely be the case.


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