Today in Washington, D.C. - June 24, 2010 - Kagan's Work As Political Adviser Gives Rise To Questions About Her Impariality

The House today will debate the Iran sanctions conference report and Democrats’ partisan election advantage campaign finance restriction bill, H.R. 5175, DISCLOSE Act. The Democrats’ unconstitutional DISCLOSE Act designed to silence their political opponents

House Republican Leader John Boehner (R-OH) issued the following statement “The First Amendment says ‘Congress shall make no law … abridging the freedom of speech.’ It’s first for a reason. Freedom of speech is the basis of our democracy. The purpose of this bill, plain and simple, is to allow Democrats to use their Majority in this House to silence their political opponents. This is a backroom deal to shred our Constitution for raw, ugly, partisan gain.

“With this misguided bill, Democrats would restrict free speech and violate the First Amendment. But not for everyone. This bill would muzzle small businesses but protect labor unions. It allows the Humane Society to speak freely, but not the Farm Bureau. It would protect the rights, but not 60-Plus. And lastly it would protect the National Rifle Association but not the National Right to Life. The NRA is carved out and gets a special deal in this bill. The NRA is all about protecting the Second Amendment, but apparently its leaders don’t care about protecting the First Amendment. That’s very disappointing.

“Since the Supreme Court’s decision to uphold the First Amendment, Democrats have maintained their bill would ‘apply equally across the board’ to corporations, labor unions and advocacy organizations alike. Instead, they produced a bill full of loopholes designed to help their friends while silencing their political opponents. We in this House take an oath to ‘preserve, protect, and defend our Constitution. A vote for this bill violates that oath.”

The Senate resumes consideration of the House message to accompany H.R. 4213, the debt-extending “tax extenders bill.” Senate Democrats have put forward a third substitute amendment, since the first two could not get 60 votes and a cloture vote on it could come as early as tonight. The problem with the latest version, though, is that it still adds $33 billion to the debt.  Yesterday, the Senate voted 57-40 to table a motion from Sen. Jim DeMint (R-SC) to refer the bill back to the Finance Committee and return it with language that would make the 2003 capital gains tax cuts permanent.

Senate Majority Leader Harry Reid said he plans to take up the conference report on the Iran sanctions bill (H.R. 2194) today.

The New York Times reported yesterday, “[Sen.] Mitch McConnell of Kentucky, on Wednesday questioned the ability of Elena Kagan to serve impartially as a Supreme Court justice, seizing on notes . . .  that suggested she supported changes in campaign finance laws that would hamstring Republicans but not Democrats. Ms. Kagan, who is President Obama’s second nominee to the high court, worked in the Clinton administration from 1995 to 1999, first as associate White House counsel, and later as deputy assistant to the president for domestic policy and deputy director of the Domestic Policy Council. 'The recent release of documents relating to Ms. Kagan’s work in the Clinton White House reveals a woman who was committed to advancing a political agenda - a woman who was less concerned about objectively analyzing the law than the ways in which the law could be used to advance a political goal . . .  In other words, these memos and notes reveal a woman whose approach to the law was as a political advocate - the very opposite of what the American people expect in a judge.'”

Sen. McConnell explained these documents from Kagan’s service in the Clinton administration take on added importance “because she has no judicial record, little experience as a private practitioner, and no significant writings for the last several years.” In the absence of such records, senators are forced to turn to her work as a political advisor and academic for a clue as to how Kagan might apply the law.  That’s precisely why Kagan’s political advocacy is so troubling. As Sen. McConnell said, “Ms. Kagan’s notes reveal that finding ways to help Democrats over Republicans was very much on her mind.” Her notes concerning a mid-1990’s campaign finance case where the Supreme Court said the government couldn’t limit political parties’ spending on independent expenditure ads that urge a vote for or against a candidate are particularly revealing. One of Kagan’s notes shows she “seemed to delight in the prospect,”  that banning soft money would “hurt Republicans and help Democrats.” She scribbled a note, “soft $ ban – affects Repubs, not Dems!” In another note, Kagan suggested “free tv” (in other words, allowing campaign commercials to run for free) as a way to counteract what Democrats saw as an advantage for Republicans.

Sen. McConnell noted that Kagan’s “advocacy and apparent glee at identifying some political harm to Republicans is, to my mind, another piece of her record that calls into question her ability to impartially apply the law to all who would come before her as a justice on our nation’s highest court.”

The New York Times points out, “Ms. Kagan, who is perhaps best known for her time as dean of Harvard  Law School, has spent much of her career alternating between academia and public service. She has worked on two political campaigns, those of Elizabeth Holtzman, who ran for the Senate in 1980, and Michael S. Dukakis, who ran for president in 1988.” And Kagan herself described her tenure in the Clinton administration, saying, “Most of the time I spent in the White House, I did not serve as an attorney; I was instead a policy adviser.”

“The more we learn about Ms. Kagan’s work as a political advisor and political operative,” Sen. McConnell said yesterday, “the more questions arise about her ability to make the necessary transition from politics to neutral arbiter.” Speaking with the NYT, Sen. John Cornyn, a member of the Judiciary Committee, agreed: “Obviously the job of political adviser is very different than that of a judge — a judge can’t take sides.”

As the hearings on Elena Kagan’s confirmation begin next week, Americans will be watching to see if she “could impartially apply the law to groups with which she doesn’t agree and for which she and the Obama Administration might not empathize,” as Sen. McConnell said.

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