WASHINGTON, DC (Catholic Online) - On Monday morning, May 10, 2010, President Obama confirmed what Washington has been buzzing about for days. The President nominated Elena Kagan to fill the seat vacated by Justice John Paul Stevens on the United States Supreme Court. She currently serves as Solicitor General of the United States, arguing before the Court on behalf of the Administration. Long admired by President Obama, her selection as his nominee comes as no surprise to Court watchers.
Solicitor Kagan served as the Dean of Harvard Law School from 2003 - 2009 until she left to serve as Solicitor General. She also has prior Government service, having served as Deputy Assistant for Domestic Policy (1997 - 1999) and Associate Counsel to the President (1995 - 1996) under the Clinton Administration. She served as Special Counsel to Senate Judiciary Chairman Joe Biden in 1993. However, with almost effusive praise for her mentor, she often emphasizes her service as a Law Clerk to now deceased Supreme Court Justice Thurgood Marshall from 1987 - 1988 as her fondest memory.
Her academic credentials are impressive. She graduated from Harvard Law School, Oxford University and Princeton University. However, she has no judicial experience, a fact that will receive a lot of ink and words over the coming confirmation process. It means there is no judicial record to judge. So, the likelihood of her being confirmed is high. The consequences are potentially quite serious.
In the opinion of this Constitutional lawyer and Court Observer the best response to the nomination came from my friend and a Pro-Life Champion Fr. Frank Pavone of "Priests for Life":
"Supreme Court Justices are not supposed to shape public policy and their nomination and confirmation should be based on their qualifications, not their views on specific issues. But there are certain issues so central to the very nature and purpose of government that one's position on those issues is tantamount to a qualification for the job. The very purpose of government is the protection of human rights, starting with life. No court can legitimize an act of violence, such as abortion, or take away human rights. Anyone who fails to affirm that does not belong in any public office, much less the US Supreme Court."
Fr. Frank is both correct - and refreshingly candid.
On Wednesday April 21, 2010, President Obama, whose opposition to the fundamental human Right to Life for children in the womb is clear, told the Press "...I want somebody who is going to be interpreting our Constitution in a way that takes into account individual rights, and that includes women's rights, and that is going to be something that is very important to me." He has chosen someone who will promote the legal fiction which gave rise to the so called "abortion right." This alleged "right" to kill our youngest neighbors in the first home of the womb is included these days in that loaded phrase "women's rights". This nominee publicly opposed the holding in Rust v Sullivan which upheld restrictions on the use of government funds to pay for the killing. That has ominous implications given the coming implementation of Health Care Reform.
The high sounding "chatter" has begun. President Obama has the constitutional power to appoint. He has a Congress joined to his hip. He will talk about "judicial temperament" and "restraint" - as will many others who will use this process to further their agendas while pretending otherwise. I recall the President's first comment on the retirement of Justice John Paul Stevens "During that tenure, he has stood as an impartial guardian of the law. He has worn the judicial robe with honor and humility. He has applied the Constitution and the laws of the land with fidelity and restraint."
He spoke of selecting someone to replace him who has " an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law, and a keen understanding of how the law affects the daily lives of the American people. It will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens." That is how he will cast his nominee, Solicitor Kagan.
Those calling themselves "conservatives" will speak of the need for a "strict constructionist" and a "judicial conservative" who" interprets rather than makes the law." The nominee will pledge to do just that. The "800 pound Gorilla" in the room in review will be the legal construct called an "Abortion Right." Its' manufacture by the Supreme Court out of what it called the "penumbra" of the 14th Amendment began the current Cultural Revolution in the United States. The "Culture of Death" it unleashed has now spread throughout the West. It set up the ongoing misuse of the 14th Amendment´s "Equal Protection of the Law" as
a cover for what amounts to a radical remaking of the culture through a mistaken notion of "liberty."
The 1992 decision in Planned Parenthood v Casey left in place the egregious holding foisted upon the Nation in the opinions of Roe and Doe denying the preeminent and fundamental human Right to Life to an entire class of persons, our youngest neighbors. Two sentences from that opinion call to light the fundamental failure of the current Jurisprudence which is undermining true liberty in of our Nation, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." This is clearly an example of what Pope Benedict rightly identified as the "Dictatorship of Relativism"!
There is no "Abortion Right". The "Right to choose" does not constitute a right to take innocent human life. Some choices are always wrong. Our criminal code is filled with examples. There is no other class of persons over which we recognize an alleged right to kill. Additionally, Abortion is an action. It has no "rights". Human Persons are the recipients of rights, endowed upon them by the God who is their source and not manufactured out of thin air by a Court. The first and fundamental Right, revealed by the Natural Law, is the Right to Life. Without that Right there can be no other Rights because there is no human person to be their recipient. Roe and its companion case Doe were wrongly decided and should be reversed, period.
Justice Stevens concurred in the Casey opinion with these inane words "Liberty finds no refuge in a jurisprudence of doubt. Yet, 19 years after our holding that the Constitution protects a woman´s right to terminate her pregnancy in its early stages, Roe v. Wade (1973), that definition of liberty is still questioned." The architects of this profane definition of liberty as a libertine license to take the lives of children in the womb view abortion as settled law, a foundation stone which must not be removed lest we foster what they call a "jurisprudence of doubt." Get the switch here? A "conservative" approach to jurisprudence now requires the protection of the status quo under a misunderstanding of "stare decisis". So, Solicitor Kagan will mouth similar platitudes throughout the nomination process.
Justice John Paul Stevens, with his gentlemanly demeanor, was a proponent of the "Culture of Death". So too, it appears, will his replacement be. However, she has no judicial record to point to in order to show this to be the case. So, she will likely be confirmed receiving even the support of many who bear the label "conservative." The effect will be to uphold the "status quo", even though it is wrong.
I commend Fr. Frank Pavone for being like that little boy in the old fable "The Emperor had no clothes" and telling the truth. He is absolutely correct "...there are certain issues so central to the very nature and purpose of government that one's position on those issues is tantamount to a qualification for the job. The very purpose of government is the protection of human rights, starting with life. No court can legitimize an act of violence, such as abortion, or take away human rights. Anyone who fails to affirm that does not belong in any public office, much less the US Supreme Court."
Will anyone have the courage to make such a statement when the confirmation hearings begin? Will anyone ask this nominee whether she recognizes the fundamental human Right to life? I hope so.