Murkowski to Oppose Kagan Nomination

WASHINGTON, D.C. – U.S. Sen. Lisa Murkowski, R-Alaska, today announced that she intends to oppose the nomination of Solicitor General Elena Kagan to the United States Supreme Court: 

“Over the past week I think those who followed the hearings came to appreciate Ms. Kagan’s talents as a law teacher. She has a great command of Supreme Court precedents and strived to explain them in plain language. Yet, as Ms. Kagan acknowledges, the cases that come before the Supreme Court are difficult in nature and not always answered by precedent. Over the past week Ms. Kagan has given the American people hardly any idea about how she will approach these difficult cases. Her responses to many of the questions posed by my colleagues on the Judiciary Committee were clever and graceful but not terribly revealing and in many cases evasive. Ms. Kagan did not uphold the standard she set for herself regarding Supreme Court nominees in a 2005 article in which she urged the Senate to probe the legal views of a nominee in order to meet the Senate’s constitutional responsibility of advice and consent.

“Ms. Kagan, like this administration’s last nominee, Justice Sotomayor, is a native of New York City. Although she spent a portion of her career in Chicago, most of her career has been spent ‘inside the beltway’ of Washington, D.C., and Cambridge, Massachusetts on the campus of Harvard University. If confirmed, six of the nine Supreme Court Justices will be from the Northeast United States, and only three law schools of the 199 law schools accredited by the American Bar Association will be represented on the high court—Harvard, Yale and Columbia law schools. While I welcome the fact that this administration has substantially increased the representation of women on the high court, it is of greater significance to me that the administration has not increased the representation of people from the West or from rural backgrounds on the court. 

“Perhaps my most significant concern about Ms. Kagan’s testimony was her admission that she really was not familiar with the history of the Second Amendment relied upon by the Supreme Court in the Heller case. I would expect more from a scholar of American constitutional law. As a Supreme Court Justice, Ms. Kagan would be required to respect the Supreme Court’s precedents in Heller and McDonald, holding that the right to keep and bear arms under the Second Amendment is a fundamental right guaranteed to law abiding individuals. She said little more than that she will uphold the precedents and declined to express her personal views on the scope of protections provided by the Second Amendment.

“One of the most interesting points in the hearing came when my colleague, Dr. Tom Coburn of Oklahoma, asked Ms. Kagan if she would find a federal law requiring that each individual consume three fruits and three vegetables a day constitutionally objectionable. She responded she would regard it as dumb law but then went on to analyze it under Congress' authority to regulate commerce. In answering the question Ms. Kagan never considered whether such a law would violate liberty or privacy interests found elsewhere in the Constitution. Ms. Kagan appeared to duck the question and maybe that is because she thought it went to whether the individual mandate in the health care reform bill is constitutional. As my colleague Senator Coburn indicated, the fear of Americans that their liberties are being stripped one by one by increasing congressional intrusion into their private lives is very real and is one of the reasons that Americans are losing confidence in their government. I think the committee deserved a more thoughtful answer.

“I did not support Ms. Kagan’s nomination to be Solicitor General of the United States because I did not think she had the requisite experience for the job. It is not essential that a Supreme Court nominee have experience as a judge but those who lacked that experience had substantial experience in the practice of law. Ms. Kagan has spent the bulk of her career as an academic, a university administrator and policy advisor. For the reasons I have cited here, I plan to oppose her nomination when it comes before the Senate.”

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