Opinion: Will the Real Elena Kagan Show Up at Her Confirmation?

(June 28) -- President Barack Obama nominated Elena Kagan to the Supreme Court, presumably because she shares his judicial philosophy.

Yet when Kagan's confirmation begins, you can bet that she will sound more like Justices John Roberts and Samuel Alito.

The reason is simple. Kagan, Obama and the senators who'll vote on her confirmation all know that the American public won't accept a judicial nominee who wants to rewrite the Constitution to reflect her personal view on important public policy issues. And the public generally takes a more conservative view on issues like the scope of the federal government's authority, the Second Amendment or the brutal practice of partial-birth abortion.

So expect Kagan to try very hard to hide from positions she took on these issues in the past, based on documents released by the Clinton Library and the Department of Defense, which revealed that Kagan took typically liberal positions on each of those issues of constitutional importance during her career.

It wouldn't be the first time this has happened.

During her confirmation hearings last year, Justice Sonia Sotomayor distanced herself from President Obama's so-called "empathy standard" -- a brazen mangling of jurisprudence that empowers judges to make decisions based on personal feelings and political views -- even with a popular president and a Democratic majority poised to confirm her.

In fact, President Obama and his allies in the Senate twisted their tongues and talked as though they had abandoned the philosophy of judicial activism that liberals had proudly championed for decades. Instead, their rhetoric emphasized traditionally conservative judicial views, with the White House going so far as to describe Sotomayor as a "nonideological and restrained judge" in a memo to senators. But it put her on the side of the American people.

After Sotomayor went out of her way to testify that she was committed to the rule of law and judicial restraint, liberal law professor Mike Seidman said, "If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court."

We called it a confirmation conversion.

Not surprisingly, it didn't last. Since her confirmation, and despite her promise to base decisions on the Constitution and not the standards of bureaucrats in Europe, Justice Sotomayor recently joined an opinion stating that international opinion and a "global consensus" was relevant to deciding that juvenile criminals can never be sentenced to life without parole for non-homicidal crimes in this country. Just a few days ago, she joined the dissenting opinion of the liberal justices who believe a federal law prohibiting "material support" to terrorist organizations is unconstitutional.

Don't expect anything different from Kagan.

There is nothing to examine with this nominee as a judge (she's not been one), and even precious little as a practicing lawyer (she did a brief stint back in the day), but the script is familiar.

We are again hearing the White House praise the concept of judicial restraint.

We are told that Elena Kagan is qualified for the Supreme Court because she is a moderate dedicated to cooperation and restraint. (She even treated conservatives at Harvard Law School with respect!) The White House has been so committed to this narrative that some on the left fear that her confirmation would move the court to the right. We doubt it.

Does anyone believe that leading liberals like John Podesta and Rahm Emanuel -- who have known Kagan since their days together in the Clinton administration and now help run the Obama administration -- would vouch for a nominee who threatened to join the conservative justices in the controversial cases where the fifth vote matters?

More importantly, does anyone believe that Kagan was merely reflecting the views of her old boss when she expressed hostility to important cases limiting the national government's power, a typical liberal view of the Second Amendment's right to bear arms and support for a virtually unlimited right to partial-birth abortion?

Senators have the opportunity to ask Kagan about her background and the views she's held. Whatever her record shows, if the White House, Senate Democrats and the nominee herself hide it behind the smokescreen of another confirmation conversion, don't be surprised.

And don't be fooled.

David McIntosh is a former Republican congressman from Indiana who held senior positions in both the Reagan and Bush administrations. Kellyanne Conway is president and CEO of the polling company. Both are lawyers.


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