Dear Friend,
This is my first update to you under our new name — CitizenLink® — and it could hardly have come at a more momentous time.
Very soon, the United States Senate will be voting on the nomination of Elena Kagan, President Obama’s latest choice for the U.S. Supreme Court. And even by the Obama Administration’s standards, this pick is breathtaking.
The president may have thought that he was choosing a stealth nominee. After all, current Solicitor General Kagan has no judicial experience and very limited writings to examine. But despite her short public record, the picture that emerges of Elena Kagan is one of a staunchly liberal academic who is committed to imposing her agenda through the courts.
Where does she stand?
First, Elena Kagan is strongly pro-abortion. Although she has rarely spoken out on controversial topics, she took the opportunity to publicly and repeatedly criticize a U.S. Supreme Court decision that prohibited recipients of federal funds from counseling on or referring women for abortions.1
She is also supported by pro-abortion organizations that would be quick to complain if they had any doubts about her commitment to protecting Roe v. Wade, the 1973 case that legalized abortion on demand.
Among the groups backing Ms. Kagan is the National Partnership for Women and Families (NPWF), which Ms. Kagan has supported financially. 2 NPWF’s stated goal is to provide “access to the full range of reproductive health information and services, including contraceptive services and supplies, sexuality education, and abortion services.” 3
Second, Elena Kagan is an advocate for the homosexual agenda. In fact, of all the controversial positions she has taken, this may be where she has been most strident.
As the former dean of Harvard Law School, Ms. Kagan worked vigorously to remove military recruiters from the campus. Why? Because, in her words, “I abhor” the Don’t Ask, Don’t Tell policy that keeps open homosexuality out of the military. She called it “a profound wrong — a moral injustice of the first order.” 4
She has also revealed her contempt for traditional marriage. As solicitor general, it was her responsibility to represent the government in defending the Defense of Marriage Act (DOMA). In doing so, however, Ms. Kagan’s legal team stated that DOMA is discriminatory and that the Administration supports its repeal. 5
Of even greater concern for the family, she rejected the established federal position that procreation and the rearing of the next generation are key reasons for upholding marriage. Then she went a step further, writing that the U.S. government does not have “any legitimate … interests in child-rearing and is therefore not relying upon any such interests to defend DOMA’s constitutionality.”
With challenges to state marriage amendments — such as Proposition 8 in California — almost certain to be decided in the Supreme Court, are you ready to let Elena Kagan decide the fate of marriage and impact American families for generations to come? If not, please read on, because this confirmation isn’t a done deal, and your help is needed!
What about free speech?
A third area of serious concern is Ms. Kagan’s view on the First Amendment. She raised big questions last September when she defended a campaign-finance law and told the Supreme Court justices that the government could ban certain kinds of political pamphlets.
What was her rationale for that astounding statement? Perhaps it can be found in her declaration to the court on another case three months earlier. “Whether a given category of speech enjoys First Amendment protection,” she wrote in a brief, “depends upon a categorical balancing of the value of the speech against its societal costs.” 6
Thankfully, the Supreme Court rejected her reasoning. But as one commentator said, “had the justices accepted her assertion, it would have effectively repealed the First Amendment’s protection of speech and replaced it by granting government the authority to decide what speech should be permitted.” 7
As people who hold to a biblical worldview, you and I should have great concern about Kagan’s legal reasoning. After all, around the world and even here in America, people who share our views are increasingly being challenged legally over statements related to God’s design for human sexuality — and how it is to be expressed only within marriage between a man and a woman.
With the proliferation of hate-crimes laws — which can easily be taken for “hate-speech” laws — it’s only a matter of time before the Supreme Court decides a case pitting religious liberty against a politically correct speech code regarding homosexuality. (In fact, a similar case is already before the Supreme Court.)
Based on her limited record, we must pray — and actively work — to see that Elena Kagan does not help decide such a case.
But will she respect the Constitution?
It is possible for a Supreme Court justice to hold views outside the mainstream, such as Ms. Kagan holds, but yet refuse to use the judicial system to rewrite the law and impose those views on America.
Elena Kagan, however, has made it clear that she believes judges should have a more activist role. For example, in a law review article, she agreed with the notion that the Court’s purpose is not to advance equal justice under the law, but rather to look out for the “despised and disadvantaged.” 8
But in addition to these hints on her judicial philosophy, she has also revealed who her legal role models are … and that list reads like a “Who’s Who of Judicial Activism.”
At the top of the list is Aharon Barak, an Israeli judge whom Kagan has called “my judicial hero.” 9 The Havard Law Record called Barak “A noted upporter of an activist judiciary” who “advances a dynamic view of law and justice.” 10
Judge Richard Posner described Ms. Kagan’s hero this way: “What Barak created out of whole cloth was a degree of judicial power undreamed of even by our most aggressive Supreme Court justices.” 11
Perhaps not surprisingly, the two judges whom Solicitor General Kagan clerked for — Circuit Judge Abner Mikva and Supreme Court Justice Thurgood Marshall — are among the American judges best known for their judicial activism.
What can you and I do to stop this nomination?
Any day now, the Senate will be voting on the Kagan nomination. And while some are ready to raise the white flag of surrender, I believe you and I still have more than a fighting chance of stopping this misguided nomination.
As you know, President Obama’s party controls the Senate with a nearly filibuster-proof majority. But the good news is that most Republican senators seem to be uniting in opposition to the president’s pick.
The other good news is that many Democrat politicians are feeling the heat as elections near. They will have a choice: Listen to their constituents now, or listen to them on election night when the returns pour in.
If there’s one thing that we at CitizenLink have become accomplished at, it is turning up the heat on politicians by mobilizing people like you to make your voice heard. But to do it well and quickly, it’s not cheap. And to do that this time — even in a limited number of carefully targeted states — we’re in need of more resources.
With so many ongoing issue fights this year — especially the up-and-down, months-long health care debate — our funds are in need of replenishing for this nomination contest and for the incredibly important election season that is just around the corner.
So here’s what I’m asking you to do:
- Please pray. God can move mountains and can turn the hearts of kings (or senators!) like a river.
- Please call your own senators and urge them to oppose the Kagan nomination. The Capitol switchboard number is 202.224.3121, or you can go to CitizenLink.com for the latest alerts and to find the names and direct contact information of your senators.
- Please help us turn up the heat by generating tens of thousands of phone calls into the offices of our top Senate targets. Your generous gift — if at all possible today, because of the short timeframe on this vote — will help produce an uproar that can’t be ignored.
When it comes to life, marriage and key religious liberty issues, Elena Kagan is no “stealth” candidate. She is transparently pro-abortion, a champion of redefining marriage and the family, and a perhaps wellmeaning, but nonetheless real threat to religious freedom. Yet very soon, your U.S. senators will be voting on whether to confirm her to a lifetime appointment on the very Court that will decide these issues.
Please do all you can today. Thank you.
Sincerely,
Tom Minnery
Senior Vice President
Government and Public Policy
P.S. So much is at stake with this nomination that we simply must do all we can. An easy win for the Left on this nomination would make it easier for them to pack the Court with even more of their own. Let us resolve, here and now, to lift our prayers, raise our voices and invest our resources to not let that happen.
If you are able, please consider pledging to support CitizenLink’s work on a monthly basis, which will help us best plan the work we’ll undertake, especially in the months leading up to the November election.
ENDNOTES:
1 The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion, 1992 Sup. Ct. Rev. 29 (1992)
2 http://judiciary.senate.gov/nominations/111thCongressExecutiveNominations/upload/Kagan-Public-Questionnaire.pdf
3 www.nationalpartnership.org/site/PageServer?pagename=issues_repro
4 http://seattletimes.nwsource.com/html/nationworld/2011832891_kaganbio11.html
5 http://lawdork.net/wp-content/uploads/2009/08/Smeltdomareplybrief.pdf
6 http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/08-769_Petitioner.pdf
7 www.washingtonexaminer.com/opinion/blogs/beltway-confidential/Kagan-Speech-is-free-if-government-decides-it-has–93309159.html#ixzz0njiovTln
8 http://blog.heritage.org/2010/05/10/morning-bell-former-attorney-general-ed-meese-on-supreme-court-nominee-elena-kagan/
9 http://www.nationalreview.com/bench-memos/55919/kagan-s-judicial-hero-aharon-barak/ed-whelan
10 www.hlrecord.org/2.4463/distinguished-israeli-jurist-receives-2006-justice-prize-1.578536
11 http://www.tnr.com/article/enlightened-despot
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