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Monday, May 10, 2010

Grounds to Reject Elena Kagan Nomination to Supreme Court

By Rick Pearcey • May 10, 2010, 02:13 PM

Under the category of nice but not germane regarding Obama's pick for the High Court comes this from Mark Sherman at AP: "Solicitor General Elena Kagan would be the first person in 38 years to join the Supreme Court without first serving as a judge. She's had a year as perhaps the next best thing."

OK. But let us also be aware of a set of basic questions that should lay a baseline for deciding whether Kagan is qualified to serve on the U.S. Supreme Court.

Questions such as this: Does Kagan stand in the enduring definitional mainstream of American thought and practice? Or is she outside of the mainstream that really matters?

That is, does she affirm the Constitution and the Declaration, both as written and not as merely "living" documents that can be essentially rewritten by creatures of the federal government as they see fit and as opinion polls or gun barrels seem to allow?

And does she affirm, along with the Founders, the centrality of the Declaration's Creator who is the basis of unalienable rights and the giver of the "blessings of liberty"?

And does she affirm the federal government as a limited enterprise authorized by "We the People" under God and limited in its authority to the precise wording of the Constitution and Bill of Rights?

If Kagan affirms in thought and practice these basics, then she operates philosophically within the liberating mainstream of the enduring meaning of the American ideal.

If she does not, then she is an individual outside of the American mainstream.

And to the degree that she is outside of that enduring mainstream, she would to that degree be an open door to (or advocate of) extremism against freedom and the rule of law rooted ultimately in the existence and character of the Creator from whom human beings receive their freedoms, responsibilities, and unalienable rights.

Kagan's life story, personal character, judicial temperament, and professional background matter much.

But their importance pales in comparison to basic questions regarding whether she understands and accepts the enduring American mainstream and its Founding rules for freedom. Or whether she is a kind of Obama court crony, a "judicial community organizer" estranged from that mainstream and yet another extremist move away from freedom and toward its opposite. 

If the evidence shows Elena Kagan is a radical outside of the enduring American mainstream, she should not be confirmed, for no one who rejects the rules of freedom should sit on the High Court, whose purpose is to protect freedom under the rule of constitutional law.

Barack Obama's selection of Elena Kagan is a strategic and teachable moment in U.S. history. After she is confirmed -- or not -- Americans will have moved either a step toward or further away from freedom and dignity under God.

It's hard to have a "shining city on a hill" when courts in the city are dark to liberty.