Tony Blankley pushes natural law myth to call for filibustering Kagan

Blog ››› ››› ADAM SHAH

In a Washington Times column, Tony Blankley essentially calls for senators to filibuster the nomination of Elena Kagan to "save the Republic." His sole reason for calling for the filibuster is Kagan's testimony that "I don't have a view of what are natural rights independent of the Constitution, and my job as a justice will be to enforce and defend the Constitution and the laws of the United States." In fact, as we've documented, Kagan's testimony about natural rights is consistent with testimony given by conservative Justice Clarence Thomas at his confirmation hearing.

In his column, Blankley attempts to contrast Kagan's testimony on natural rights with statements by Abraham Lincoln and former Chief Justice John Marshall. Blankley even concludes, "senators have had their warning: Side with Abraham Lincoln and the republic or with Elena Kagan."

Blankley quotes Kagan saying:

"To be honest with you, I don't have a view of what are natural rights independent of the Constitution, and my job as a justice will be to enforce and defend the Constitution and the laws of the United States."

[...]

"I'm not saying I do not believe that there are rights pre-existent [to] the Constitution and the laws. But my job as a justice is to enforce the Constitution and the laws. You should not want me to act in any way on the basis of such a belief [in an inalienable right to life, liberty and the pursuit of happiness] if I had one [said on being asked if she disagreed with the Declaration of Independence's enunciation of inalienable rights]."

But this testimony is not controversial. In fact, Clarence Thomas similarly stated at his hearing that he didn't "see a role for the use of natural law in constitutional adjudication." He testified:

As I indicated, I believe, or attempted to allude to in my confirmation to the Court of Appeals, I don't see a role for the use of natural law in constitutional adjudication. My interest in exploring natural law and natural rights was purely in the context of political theory. I was interested in that. There were debates that I had with individuals, and I pursued that on a part-time basis. I was an agency chairman.

Two more points: First, one stumbling block for Blankley's call for senators to filibuster Kagan's nomination is the fact that Republican senators, including Sens. Orrin Hatch (UT), Sam Brownback (KS), Chuck Grassley (IA), John Cornyn (TX), Jeff Sessions (AL), James Inhofe (OK), Tom Coburn (OK), and Pat Roberts (KS), have previously said or suggested that filibustering judicial nominees is unconstitutional.

Second, Blankley comes awfully close to advocating for an unconstitutional religious test for Supreme Court nominees. Blankley writes:

Even more to the point, the right to remove those conditions from a man must always lie exclusively in the power of Him who gave them. The judge or politician who does not understand the source of those rights is ever likely to presume -- at some useful moment -- that a mere man or woman or government may act to deny such rights. Indeed, they are not rights if they are not so created -- but mere temporary grants of privilege from an all-powerful state.

But the Constitution states: "[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

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