The Nation: "Elena Kagan should be borked."


The Nation calls for Supreme Court nominee Elena Kagan to come clean about her legal views:

The truth is, on the fundamental issues of executive power and civil liberties, we simply do not know enough about Kagan's views; because she was never a judge and has a relatively slim paper trail as a scholar and a litigator (in which her role was constrained), we are left parsing these few statements for larger meaning. The same is true on matters of corporate power and other vital issues. When Kagan argued the administration's case in Citizens United v. FEC, against granting corporations near limitless rights to political spending, was she expressing her views or those of the president? When she urged President Clinton to accept compromise legislation banning late-term abortions, was she articulating her opinion about the right to privacy under Roe v. Wade, or was she merely offering legal advice in her role as a White House aide? When she said there is not a "constitutional right to same-sex marriage," was she articulating her understanding of equal protection under the Constitution, or merely describing objectively the current state of constitutional law? And if the former, how does that belief square with her statement that the military's "don't ask, don't tell" policy is "a moral injustice of the first order"?

Kagan should be pressed on all these matters during her confirmation hearing.

Read the whole thing here. Earlier this week, Radley Balko explored Kagan's lousy record on criminal justice issues, Jacob Sullum looked at her wobbly support for free speech, and I examined her troubling deference to government power.