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By Sarah Foster
August 4, 2010

With the summer recess just days away, Senate Majority Leader Harry Reid, D-Nev., is determined to ram through the confirmation of U.S. Supreme Court nominee Elena Kagan, and has demanded a vote no later than Thursday.

Actually, a vote could come “any minute” warns Alan Gottlieb, chairman of, a advocacy organization based in Bellevue, Wash., in an Action Alert e-mailed Tuesday. Gottlieb is desperately trying to keep conservative activists focused on contacting senators by phone, fax, and email to urge opposition to Kagan’s confirmation.

Last week Senate Republicans successfully blocked passage of the DISCLOSE (Democracy Is Strengthened by Casting Light on Spending in Elections) Act, with all 41 GOP members voting against cloture and to continue debate. So it can be done. The Democrats had 57 votes, but they need a clear two thirds majority (60 votes) to break a filibuster.

The question is whether the Republicans have enough stomach to maintain a filibuster on the Kagan confirmation, despite a barrage of messages urging them to do so. The mainstream media have essentially given her a pass and predicted that while there may be blustering and posturing on the floor, in the end the Senate will vote to close debate and simply rubber stamp the president’s pick for the post.

Five Republican senators — Richard Lugar (Ind.), Lindsey Graham (S.C.), Susan Collins (Maine), Olympia Snowe (Maine) and Judd Gregg (N.H.) — have promised to support confirmation.

Opposition to Kagan’s appointment has tended to focus on her lack of judicial experience (she has none – not even as a traffic court judge), and – at least among conservatives – her pro-abortion activism. But despite the non-existence of “judicial rulings” and an alleged lack of a “public record” a lot has been gleaned from her background, her work as Obama’s solicitor general, and various legal writings. So we have a pretty good idea how she’s going to vote on cases once she’s seated on the bench.

For a start, check Cliff Kincaid’s recent two-part series “A Socialist on the Supreme Court?” in NewsWIthViews. Kincaid writes: “Investor’s Business Daily (IBD) has noted in an editorial the ‘free ride’ that Kagan has received in her confirmation hearings, as Republican senators have mostly ‘played dead’ and the major media have acted as ‘compliant shills’ for the nomination. Yet, as noted by IBD, Kagan has a radical record that includes:

Twisting scientific findings in order to protect the grisly practice of partial-birth abortion.
Banning military recruiters at Harvard Law School to please radical homosexual activists.
Arguing as solicitor general that books, and maybe pamphlets, too, might not be worthy of First Amendment protection. (emphasis added)
Seeming to agree that it would be constitutional for the federal government to tell people what to eat.”

A highly informative analysis of Kagan’s basic ideology is a piece published last month in The New American by Gregory Hession, J.D. Hession points out that although Kagan has not produced a ruling, there is indeed a “public record” – and that this record “reveals something that mainstream pundits will not admit, lest the real game be given away.”

Kagan’s Philosophy: Legal Positivism

Hession’s comments deserve to be quoted at length.

“Attorney Kagan adheres to a philosophy called “legal positivism” and applies its worldview to her interpretation of the U.S. Constitution. Through the lens of the legal positivist, law has no fixed truth, but must be re-invented and bent to fit the changing needs of society. She has also associated throughout her life with lawyers, judges, and politicians who favor that position…

”If interpretation of the law is not based on the actual words in the statute or on the intent of the lawgiver, then the law comes to mean whatever the legal positivist wants it to be, and it can be changed at a whim. Expediency and the existence of a government edict are the only rules. Though this explanation reduces a complicated philosophy to a caricature, it illustrates the basic problem: In the view of modern jurists, law is not based on objective truth or even on the fact that words have meaning. ,,,

Arbitrary and Capricious

Application of this doctrine to Supreme Court cases means that a litigant cannot have the security of a predictable outcome, even when appealing to the plain meaning of the text of the Constitution.


Since the actual words of the Constitution are no longer the basis for legal rulings, litigants experience arbitrary and capricious results, which shift with the political winds. Once in a while they get lucky, and the justices will incidentally agree that a phrase in the Constitution actually means what it says, such as the recent Heller decision, affirming an individual right to keep and bear arms. But the court may equally discard its plain meaning, such as when it upheld most of the McCain-Feingold campaign finance law, in direct violation of the clear First Amendment language which says, “Congress shall make no law … abridging the freedom of speech.”

An Exalted View of the Law

Another unstated premise of Elena Kagan’s legal positivism is her exalted view of the nature of law, lawyers, and judges, which lies at the heart of why her nomination should not be approved. Her belief is that the law should address all human interactions in a modern regulatory state, and that lawyers and judges are the proper guides for this elitist vision of American life.

Attorney Kagan’s extensive writing shows that she is in the grip of a big-government ideology that has done much to ruin the legal system and the entire political landscape. A 100-page piece that she wrote, which appeared in the University of Chicago Law Review, expounds her view. It is entitled “Private Speech, Public Purpose: The Role of Government Motive in First Amendment Doctrine.”…

Hession’s piece is very thorough – and must-reading if you want a picture of what lies ahead if she wins the Senate vote. And that’s the likely outcome, though it’s not a completely done deal, and Alan Gottlieb continues to urge conservatives and their allies to keep up their opposition.

In what appears at first glance to be good news, Sen. Ben Nelson, D-Neb., announced Tuesday that he’ll not support Kagan’s confirmation, but (now the bad news) -- he’ll not support a filibuster.

"As a member of the bipartisan 'Gang of 14,'" said Nelson, "I will follow our agreement that judicial nominees should be filibustered only under extraordinary circumstances... However, I have heard concerns from Nebraskans regarding Ms. Kagan, and her lack of a judicial record makes it difficult for me to discount the concerns raised by Nebraskans, or to reach a level of comfort that these concerns are unfounded. Therefore, I will not vote to confirm Ms. Kagan’s nomination."

Here’s Gottlieb’s take on Nelson’s tap dance and the importance of keeping the pressure on the Senate:

"In other words, BECAUSE OF YOUR PHONE CALLS AND FAXES, Nelson realized how unpopular Kagan is, but he still wants her confirmed, so in order to give the false appearance that he opposes her confirmation, he'll vote YES to allow Kagan an up or down vote, guaranteeing she is seated and reducing our chances to stop Kagan's nomination by filibuster. We therefore score Nelson's betrayal as a pro-Kagan vote, and call upon Nebraska voters to get rid of the liberal Ben Nelson in 2012."

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Nelson is the only Democrat to come out against Kagan’s confirmation so far. The important thing is to put pressure on the Democrats – and perhaps more so, on the Republican.

It's not to late. As Rep. Michele Bachmann put it (though regarding a different issue) – It’s time to MELT THOSE PHONE LINES!

� 2010 Sarah Foster - All Rights Reserved

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Sarah Foster is a political researcher and freelance writer in Sacramento, Calif. She holds a B.A. in anthropology from U.C., Berkeley and a M. A in folklore-mythology from U.C.L.A. A regular contributor to, her writings have also appeared in WorldNetDaily, Reason Magazine, Orange County Register, and other libertarian/conservative publications.

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The question is whether the Republicans have enough stomach to maintain a filibuster on the Kagan confirmation, despite a barrage of messages urging them to do so.