Rule of law, not rule of judges (Rep. Lamar Smith)

To ensure a balance of power, America’s Founders established three branches of government. The Legislative Branch to write laws.  The Executive Branch to enforce the law.  And the Judiciary to ensure that the laws are consistent with the Constitution as drafted by the Founders.

The Constitution is meant to be a compass for each branch of government.  Judges who are expressly loyal to a specific political ideology—whether liberal or conservative—and place that loyalty above a commitment to the Constitution as written run the risk of imposing their political beliefs on a system that was created to be free of political influence.

If our laws do not have fixed meanings, but are rather bent to the whims of individual Justices, then there can be no “rule of law,” but only “rule by judges.”  

I am concerned that Elena Kagan will be a Justice that believes in the “rule of judges,” rather than the “rule of law” established by the Constitution.

In her graduate thesis, Kagan wrote sympathetically of an activist Supreme Court that, in her words, “asserted its right” to “lead the nation.”  This fundamental misunderstanding of the role of the Court is regrettable.  The Supreme Court is not supposed to “lead the nation.” That role belongs to the people through their representatives in Congress.

During her tenure as a clerk on the Supreme Court, Kagan wrote a memo describing a case in which a man had challenged the District of Columbia’s gun control restrictions on the grounds he had an individual right to bear arms under the Second Amendment.  Kagan was “not sympathetic” to the argument that the Second Amendment protects an individual’s right to bear arms.

As Dean of Harvard Law School, Kagan opposed legislation designed to prevent terrorists convicted in military tribunals from gaining additional constitutional rights through civilian courts.  She joined other liberal law school deans in comparing that legislation—which was passed on a bipartisan basis by Congress—to a “dictatorship."

Terrorists should be treated as enemies of war, not common criminals. The Constitution does not require us to give citizens’ rights and freedoms to enemy combatants. Again, Kagan’s argument prioritized her personal political ideology over the guiding principles of the Constitution.

As Solicitor General, Kagan took the position that the government can ban movies, books or pamphlets that support or oppose candidates for federal office. Her office said that the government could ban a wide variety of materials if it didn’t like the speaker or the speech. Fortunately, the Supreme Court threw out this blatant government intrusion on the First Amendment right to free speech.

In one of the most prominent issues likely to come before the Supreme Court in the next few years—a state’s right to play a role in the enforcement of immigration laws—Kagan opposed the state’s right.  In 2007, the state of Arizona passed an immigration law that allowed it to revoke the business licenses of businesses that knowingly hire illegal immigrants.  The provisions were challenged but upheld in both the district court and even the notoriously liberal Ninth Circuit Court of Appeals.  But instead of letting the law and the lower court rulings stand, Kagan recommended that the Solicitor General urge the Supreme Court to review and overturn the law.    

Perhaps one of the most controversial decisions of Kagan’s career was her support of banning military recruiters from Harvard’s campus because of her personal opposition to the military’s “don’t ask, don’t tell” policy. Again, her political views clouded her professional judgment.

A provision of federal law called the Solomon Amendment says that educational institutions that deny military recruiters access equal to that of other recruiters will lose federal funds.  Kagan argued that the law was unconstitutional and that educational institutions should be able to deny access to the military without forfeiting federal funding.

Her arguments were rejected unanimously by the Supreme Court.  In the Court’s opinion, Kagan’s legal theory, if accepted, would have rendered the law “largely meaningless.”

As a lifetime appointed Supreme Court Justice, Kagan could regularly render the Constitution itself “largely meaningless” by ignoring its text and imposing her personal political views on Court decisions.

That’s why the Senate must fully examine all aspects of Kagan’s experience, political views and judicial philosophy.

Rep. Lamar Smith is the House Judiciary Committee Ranking Member.