Rand Paul 2010 | U.S. Senate

“Last month, the President nominated his friend and member of his administration, Solicitor General Elena Kagan, to a lifetime position on the Supreme Court. Ms. Kagan has never been a judge and only practiced law for two years as a junior associate before her current position as Solicitor General. She has largely been an academic, administrator, and policy advocate and advisor.

“So we haven’t had a lot of information about her background.

“But recent documents from her time as a policy advocate in the Clinton Administration have shed more light on her views. And, in my view, they help answer the question some have asked as to whether she would be able to transition into a very different kind of role — namely, that of an impartial jurist Americans expect to sit above the political fray.

“As a judge on our highest court, Ms. Kagan would no longer be a member of President Obama’s team. Rather, her job would be to apply the law even-handedly to persons and groups with whom she might not necessarily empathize. And in that regard, it’s instructive to see how she’s viewed the law and applied it when it comes to persons and groups with which she may not agree.

“I previously discussed Ms. Kagan’s role in the Citizens United case. Here was a case in which the government said it could block a small non-profit corporation from showing a movie that it made about then-Senator Hillary Clinton because it viewed the film as the kind of political speech that was prohibited by federal campaign finance laws.

“This was not only the first case Ms. Kagan argued as a member of the Obama Administration; it appears to have been the first case she has ever argued in any court. And in it, she and her office took the position, at different points in the case, that the federal government had the power to ban videos, books and pamphlets if it didn’t like the speech or the speaker — a shocking position for the solicitor general of a nation that’s always prided itself on a robust exchange of ideas under the First Amendment.

“The justices on the Supreme Court — conservative and liberal alike — also seem to have been taken aback by this position. As were legal commentators of all political stripes; but now, in looking at some of the documents from her time as a political advisor in the Clinton Administration, perhaps her views before the Supreme Court in Citizens United are not that surprising after all.

“As a part of President Clinton’s team, Ms. Kagan co-wrote a memo in which she said it was unfortunate that the Constitution stands in the way of many government restrictions on spending on political speech. She also wrote that many of the Supreme Court’s precedents that protect political speech in this area were, to quote her memo, “mistaken in many cases.”

“We have also learned from the documents produced by the Clinton Library last week that Ms. Kagan was a member of the campaign finance working group at the Clinton White House. These documents appear to show that in this area, at least, Ms. Kagan placed her political desires over an even-handed reading of the law and of the rights that the Constitution protects.

“What’s more, these newly-released documents show that Ms. Kagan went out of her way to prevent the professional lawyers at the Justice Department from officially noting their concerns that the legislation being considered in Congress could infringe on Americans’ First Amendment rights.

“In the mid-1990s, for example, the Office of Legal Counsel was concerned with the constitutionality of campaign finance legislation making its way through Congress. As a July 17, 1996, memo by Ms. Kagan put it: the OLC believed that all of the campaign finance bills under consideration by the House at that time “present[ed] serious constitutional issues.”

“Now, Ms. Kagan didn’t say these lawyers were wrong. In fact, she noted that their concerns were to be expected in a case like this. But allowing them to express their legal analysis would have been at odds with the Clinton Administration’s political strategy — a strategy she helped develop.

“She was determined, as one memo put it, to “try to head off DOJ … letters” that noted constitutional problems. So she called a political appointee at the Justice Department and told him that Clinton’s Office of Management and Budget “might well disapprove” any such opinion letter from the Justice Department.

“The phone call evidently worked. The documents we’ve now seen show that the political appointee with whom she spoke called back and told her the “OLC did not have adequate time to prepare comments on the campaign finance legislation and, given the possibility that such comments might not go through, would not attempt to do so.”  What a coincidence, Mr. President.

“Whether one works in the Judicial, Legislative, or Executive branches of government, you take an oath to support and defend the Constitution of the United States. In this case, Ms. Kagan recognized that the professional lawyers at the Justice Department had valid legal concerns that these bills might violate Americans’ free speech rights. But she disregarded these valid concerns — and even helped prevent them from being aired — in order to help advance a political agenda.

“Now, I understand that Ms. Kagan was part of President Clinton’s team. Just like she’s now part of President Obama’s team. Both presidents were no doubt pleased with her political and policy advice. And we know President Obama is very pleased with the job she did in Citizens United.  But if she were confirmed to the Supreme Court, she can’ be on anyone’s team.

“Ms. Kagan has said that judging is a “craft,” and that the Senate should always insist that a nominee’s background show that they can, quote, “master” that craft. I agree with Ms. Kagan that judging is a craft.  But for most of her adult life, she has practiced a much different craft — the craft of political advocacy. We must be convinced that someone who has spent the better part of her career as a political advisor, policy advocate, and academic — rather than as a legal practitioner or a judge — can put aside her personal and political beliefs, and impartially apply the law, rather than be a rubberstamp for the Obama or any other Administration. The Clinton library documents make it harder — not easier — to believe that Ms. Kagan could make that necessary transition.”