Elena Kagan Senate Confirmation Hearings Set for June 28

It promises to be a great ball game, as the U.S. Senate prepares for Elena Kagan's confirmation hearings, set for June 28.

The pitcher, in this case, is Senator Patrick Leahy, powerful senior Chairman of the Senate Judiciary Committee, a man who believes the U.S. government should sanction same-sex marriage. Vermont's Senator Leahy is a strong advocate of gun control, and he is very comfortable with limiting the free speech rights of corporations, but not labor unions. The bushy white eyebrows seem locked into a perpetual up-curtain, outraged expression whenever someone should dare to question big government liberal fallacies which encourage dependency and disparage individual freedoms.

Leahy, along with other Obama judicial wonks, is busy four-walling a vast, fast-paced confirmation effort, something they are likely to achieve considering the abundance of Democrats in Congress. Elizabeth Kagan is a bright, dynamic, and accomplished woman with a heap of impressive academic credentials and zero judicial ones. She is the classic, brainy, hard-working, unmarried, careerist, Jewish, upper-west-side Manhattan member of the liberal intelligentsia. "So Is She Gay?" asks Jeremy Gantz in a June 10 article which underscores a current of discourse which has gripped both "sides."

Kagan was never a judge, and has no judicial record to review. Hence, the release of thousands of pages of documents (140,000 in all) and emails from her years as a Bill Clinton legal advisor is important. The news from White House headquarters and Leahy is that the document release is "the most open and transparent in history," inundating the hearing committee with a monsoon of paper.

The "most open and transparent in history" description doesn't fit Kagan's memos and papers in defending Bill Clinton from Paula Jones' claims of sexual harassment. Those are off limits, likely from concerns about alienating feminist leaders. However, select Senators have been permitted to view those as well.

Meanwhile, Republican Senator Jeff Sessions complains of being overwhelmed with the pace of document release, and of having insufficient time to review the material. Each volume release of documents has occurred on Friday afternoons to avoid the more intense weekly news cycle.

During the Senate confirmation hearings for Elena Kagan, there will be the inevitable de rigeur questions about the death penalty and right-to-life vs. pro-life. But there are other questions I'd like to hear from the Senate Confirmation Committee.

While a professor at the University of Chicago, Kagan wrote an article in the University of Chicago Law Review entitled, "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine."

In that article, Kagan said that "governmental motive" was the most important factor in determining whether 1^st Amendment rights were abrogated. Here would be two of my own questions to Kagan, then:

"Understanding that Arizona's new immigration law is not a 1^st Amendment case, would you say also that governmental motive should be an issue determining the constitutionality of the lawsuit Hillary Clinton said President Obama would file against Arizona? How would you explain such a filing against Arizona?"

Other questions of concern to me concern the issue of 2^nd Amendment rights. Kagan assisted and advised the Clinton administration in the implementation of new limits on 2^nd Amendment rights."

"Do you believe that the 2^nd Amendment "right to bear arms" applies only to a "well-regulated militia? And do you believe that states, counties, and municipal governments have the authority to impinge upon the constitutional protections of the 2^nd Amendment? And if so, under what circumstances?"

My next line of questioning would concern government intervention in conjugal life, to me a personal and individual private matter, protected under "life, liberty and the pursuit of happiness." If any two or three or five of my gay brothers or sisters wish to be married by an Indian Chief in Peoria and honeymoon at the Al-Aqsa mosque, I'd be happy to cheer and throw rice, so long as no one was harmed.

But what is it about the crusaders for government support in the way of federal marriage laws that requires the government stamp? Leave to God the business of God, to government the narrow business of governing, and to people the intelligence to know the difference.

So I would ask Elena Kagan for her opinion as to whether civil unions are sufficient to address the legal and practical obstacles for gay men and women who marry by private or religious ceremony. I would ask Kagan the same question with regard to marriages between men and women under current law.

I suppose the rhetoric about gay marriage being a "civil rights" battle would seem less lofty if it were more forthright. I mean, isn't it about things like federal social security benefits for spouses and divorced spouses and disabled spouses, and adopted children? Isn't it also about a kind of Potemkin social village parity where mommy and mommy and daddy and daddy and daddy (see the Price, Zaborski, Ward relationship in the Robert Wone murder case) put the kids to bed and watch American Idol together?

If things are so "open" and "transparent," then it shouldn't be considered offensive to ask Elena Kagan:

"If you were gay, would being gay prejudice your decision should gay marriage become a constitutional issue before the Supreme Court?"

Personally, I don't believe that a person as steeped in American law as Elena Kagan would reflexively decide cases entirely in favor of personal preferences. But don't we want to learn what more she has to say about gay marriage than what any "wise Jewish woman" could offer?

In any case, the hypocrisy of the White House is near total as they've tapped Kagan's Harvard fellow students like Eliot Spitzer and journalist Jeffrey Toobin to spin college reveries. Spitzer says he didn't go out with her, but knows of men who did. Someone even dug up Kagan's law school roommate, Sarah Walzer, to tell stories of jejune schoolgirl fascinations with men. Gasp! So what does that prove?

But why such strenuous efforts for something that doesn't matter? Conservative Republicans like John Cornyn and Jeff Sessions have publicly said they would have no problem voting in favor a Justice who was openly gay.

Taylor Marsh, writing a May 13 Huffington Post column entitled "'Kagan Is Not Gay' Conversation Embarrasses Everyone" mentions a White House "going berserk" (to out a heterosexual, Marsh says) and a "spectacle which has embarrassed just about everyone." She's referring to the elaborate lengths the Obama team is going to in an attempt to squash the gay marriage issue during the confirmation hearings.

President Obama need not worry too much about the direction of the Kagan confirmation hearings. Senator Leahy will steer the ship of state toward the BP oil spill in the Gulf. Political blog and website The Hill reports that Leahy will ask Kagan how she'd decide if damages assessed against BP went to the high court. The Supreme Court slashed a "damages award in the 1989 Exxon-Valdez spill," reports The Hill.

Other headlines issues Kagan will certainly be asked about is whether the mandated insurance purchase stemming from President Obama's Health Care Bill is constitutional. The White House line is that it is a tax, and that the federal government surely has the constitutional right to tax. Twenty states think differently and are suing the government because they say it's unconstitutional for the government to force people to buy health insurance --or anything else, for that matter.

The White House has given itself plenty of wiggle room, saying that the bulk of Kagan's work for Bill Clinton represented his views, not her own. Unnh-huh! (the check is in the mail) As Solicitor -General, Kagan has no choice but to claim ownership over her confirmation hearing statement that "there is no federal constitutional right to same-sex marriage." She also said she would defend Bill Clinton's Defense of Marriage Act, which says that states don't have to recognize same-sex marriages legitimized by other states. Will Elena Kagan reverse herself before the Senate Confirmation Committee? Kagan has reversed herself before. After barring military recruiters from Harvard recruitment, the White House tells the story that Kagan was instrumental in forging a compromise between Harvard and the Department of Defense, allowing for a resumption of federal funds to the University. Recent documents released to the Senate Confirmation Committee indicate that Kagan had little part in the compromise deal.

Sources:

http://thehill.com/blogs/e2-wire/677-e2-wire/104285-leahy-signals-bp-will-play-central-role-in-kagan-hearings

http://liveshots.blogs.foxnews.com/2010/06/18/senators-spat-over-new-kagan-documents/

http://inthesetimes.com/article/6080/so_is_she_gayhttp://cnsnews.com/news/article/65720

http://www.ontopmag.com/article.aspx?id=4187&MediaType=1&Category=26

http://www.washingtonpost.com/wp-dyn/content/article/2010/06/19/AR2010061902912.html