On the Fourth Day…Still Talkin’ Gays, Guns, and Abortion

Amie Newman

The fourth day of the Kagan hearings included - once again, guns, gays, abortion, and let me throw in judicial activism, because what's a Supreme Court Justice hearing without cries of "judicial activism" after all?

The fourth day of the Kagan Supreme Court nominee hearings included – once again, guns, gays, abortion – and let me throw in judicial activism because what’s a Supreme Court Justice hearing without cries of “judicial activism” after all? Fear over the second amendment was expressed by constitutional lawyer William Olson, a lawyer who represents “Gun Owners of America,” who called the right to bear arms and self-preservation a “God-given right” that he believed Kagan would not support (and now it’s the Supreme Court’s job to rule on God’s law?). However, concerns about “judicial activism” were alluded to or spoken directly of by many of the minority witnesses from Robert Alt with the ultra-Conservative Heritage Foundation to Charmaine Yoest of Americans United for Life. Ed Whelan, a minority witness, expressed fear that Kagan might actually “invent a case for same-sex marriage…and penalize all those Americans who understand marriage a union between a mand and a woman.”   

Today saw a parade of witnesses, however, both in support of and in opposition to Elena Kagan’s appointment to the United States Supreme Court and included lawyers, judges, advocates, former colleagues, academics and Tony Perkins of the Family Research Council (who needs to be singled out for his inability to fit into any category aside from “person who fears that Kagan will create what he calls the ‘homosexual version of Roe v. Wade’).

The first three witnesses included the “real faces” behind decided Supreme Court cases including Lilly Ledbetter, a Goodyear employee who brought her case to the Court after discovering immense disparities in pay between herself and her male colleagues for the same work, but only after 19 years. The Court ultimately decided against her in a 5-to-4 ruling, leading Congress to pass the Lilly Ledbetter Fair Pay Act, signed into law by President Obama in January 2009. Ledbetter, in her testimony, noted that there was only one female Supreme Court justice on the court when her case was decided and that, had one other justice “adhered to the law” in her case, the outcome would have been very different.

The three former and current military members who then testified were in consensus that Kagan should not be confirmed based solely on what they perceived to be her anti-military bias resulting from her decision to bar military recruitment at the Harvard Law School’s Office of Career Services. But MotherJones has sort of taken care of them  already, calling them “paid, professional Conservative activists” and exposing their extreme views on homosexuality (one was paid by the anti-gay, aforementioned Family Research Council) and on both President Obama and Elena Kagan as well. There also were current members of the military who testified on her behalf.

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The testimonies from Charmaine Yoest of Americans United for Life and Tony Perkins from the Family Research Council included exactly what you’d expect. Yoest decried Kagan’s decision to represent the full position of the American College of Obstetricians and Gynecologists on late abortion procedures in addressing the erroneously named  “partial-birth abortion” Act. But Yoest also called the partial-birth abortion ban a “common sense restriction” and she was concerned that Kagan “would work towards taking our jurisprudence on life issues far beyond Roe v. Wade.”

Meanwhile, Perkins took a right-turn into “what are you talking about?!” when he testified that, “Kagan would advance created rights for homeosexuals – a Roe v. Wade of gay rights – if allowed on the Supreme Court.”

The committee predicatably, even boringly, expressed differing thoughts on whether or not Elena Kagan should be confirmed as our next Supreme Court justice, with Democrats espousing her brilliance and superior qualifications and Republicans raising eyebrows and voices over her abortion-lovin’, gay-rights pushin’, anti-militarism (though, likeable!) nature. The American Bar Association did give her their highest qualification based on a “non-partisan, peer review” conducted with over 2400 law professors, Deans, preeminent lawyers and judges, current Supreme Court justices, federal and state court judges, lawyers who worked with or against Kagan, former Solicitors General from both political parties among others.

Marcia Greenberger, President of the National Women’s Law Center, an organization that has been involved in “almost every effort over the last thirty years to secure women’s rights” testified to Kagan’s amazing career, breaking down barriers for women, and the importance of Kagan’s presence, as a woman, on the Supreme Court. Greenberger praised Kagan and alluded to Ledbetter in the end saying Kagan is, “Open-minded and dedicated, scrupulously fair and committed to defending equal justice. Kagan will bring to the Supreme Court the commitment to equal justice for ordinary Americans, including the women of this country who often need its protection in ways they never expected.”

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