Aug. 3, 2010
Senator Jon Kylwhos one of the most effective members of the Senatejust laid out a devastating case against Elena Kagan.
In addition to all the things weve rightly heard so much aboutdont ask dont tell, military recruiters at Harvard, gun control, and terrorists rightshe highlighted that she failed to do her duty as solicitor general when it comes to the Defense of Marriage Act (DOMA).
Kyl did a masterful job of showing that, after she made the case that when a solicitor general gets involved in a case, it must vigorously defend any federal law that is challenged in court, she was fine with the Justice Department (DOJ) disavowing Congress justifications for DOMA in court in the ongoing challenge to DOMA. The DOJ brief in court said that the Obama administration regarded DOMA as discriminatory and supported its repeal, and that DOMAs purported policy justification should not survive even the most deferential and permissive judicial review.
Thats not any type of legal defense. Instead, its sabotaging your clients case.
Kyl then did a fantastic job addressing two other hot-button issues with profound implications across the spectrum of constitutional interpretationhow to interpret the Second Amendment right to bear arms and the limits of federal power under the Commerce Clause. Her take on both of those issues would have terrible applications for all sorts of important issues, including family issues.
And finally, he made the point that Kagan is not qualified under traditional criteria for the Supreme Court. Although weve had justices with no prior judicial experience, weve never had one who has no judicial experience and only two years total lawyers experience.
All in all, a compelling case for opposing Elena Kagans confirmation to the Supreme Court. Well done, Senator Kyl.