Opponents of Pro-Abortion Elena Kagan’s Supreme Court Bid Find Silver Lining

National   |   Steven Ertelt   |   Aug 6, 2010   |   9:00AM   |   WASHINGTON, DC

Opponents of Pro-Abortion Elena Kagan’s Supreme Court Bid Find Silver Lining

by Steven Ertelt
LifeNews.com Editor
August 6
, 2010

Washington, DC (LifeNews.com) — From the outset of President Barack Obama’s nomination of pro-abortion activist Elena Kagan to the Supreme Court, her confirmation was virtually guaranteed. Today, the day after the Senate approved the nomination, Curt Levy of the Committee for Justice tries to find the silver lining.

With Democrats controlling nearly 60 votes, the ability of pro-life advocates and their Republican allies in the Senate to stop the nomination was difficult from the start.

But Levy, one of the top conservatives monitoring judicial nominees, says there is a silver lining that bodes well for those opposed to judicial activists who may be appointed to the high court in the future.

"Although the reality of 59 Democratic senators meant that the confirmation of Elena Kagan was never really in doubt, believers in the rule of law have several things to cheer in the Kagan confirmation battle," he writes in an op-ed in today’s Daily Caller.

"Republican senators mounted their strongest opposition in more than century, sending strong signals to the White House about future Supreme Court picks, while teeing up important issues for this fall’s Senate races," he said. "The confirmation fight also saw the continuing repudiation of the Left’s living Constitution philosophy and the solidification of a profound change in the politics of judicial confirmations."

Levy says opponents of pro-abortion judicial activists like Kagan have come a long way since a mere three senators voted against pro-abortion nominee Ruth Bader Ginsburg — noting that Kagan received fewer votes than Sonia Sotomayor.

"Last summer, the 31 votes against Justice Sotomayor’s confirmation surprised liberals and conservatives alike in light of more modest expectations and the memory of a mere three votes against the elevation of Ruth Bader Ginsburg to the Supreme Court," he wrote in the Daily Caller. "Opponents of judicial activism were able to build and even improve on that effort this summer, despite President Obama’s attempt to thwart opposition by nominating a stealth candidate."

"Conservative groups and Senate Republicans – particularly GOP Leader Mitch McConnell and Judiciary Ranking Member Jeff Sessions – worked hard to get out the disturbing truth about Elena Kagan. As a result, the number of senators voting against confirmation reached nearly 40, including the first Democratic senator to vote against an Obama High Court nominee. That’s the most votes against a Democratic Supreme Court nominee in more than a century," Levy continued.

Levy also says the opposition to Kagan means that, after Republicans pick up more seats in the Senate following the November elections, any further Obama nominee to the Supreme Court can’t be as stridently left-wing as Kagan.

He also noted that polling data on the issue of abortion and Kagan’s nomination showed "Kagan is on the wrong side of the American people by large margins" which means her nomination could help the pro-life movement pick up more seats in November.

"Those Democrats will have to explain to their constituents why they essentially voted for … limitless abortion … and the like in confirming Kagan," he wrote.

"Although it’s no surprise – given Kagan’s likely agenda on the Court – that public support for Kagan was consistently at a historical low for a Supreme Court nominee headed for confirmation, that unpopularity further complicates the explaining that Democratic senators will have to do back home," Levy said.

Levy also notes the debate itself in the hearings and on the Senate floor over Kagan was to the advantage of those who oppose judicial activists.

"The senators who opposed Kagan should be proud not only of their votes today, but also of the tough but courteous questions they asked her during her hearings and of the often powerful floor statements they made in opposing her. As a result, Americans got the teaching moment they deserved including a serious debate about constitutional interpretation and the proper role of judges," he pointed out.

Levy concludes by noting that the debates on Kagan and Sotomayor made them retreat, at least in their comments to the Senate, from the expanding Constitution notion that gave rise to Roe v. Wade and abortion.

"On a closely related point, both Kagan and Sotomayor not only refused to stand and fight for the Left’s cherished theory of a living Constitution, but actively disavowed such an approach to judging during their hearings. That leaves little doubt that, while liberal judicial activism will live on surreptitiously in the courts, the living Constitution is now dead as a defensible judicial philosophy outside academe. That is perhaps the most important conservative victory in this summer’s confirmation process," he concluded.


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