National Review Online's Carrie Severino attacked Elena Kagan for saying at her hearing that natural rights are, in Severino's words “irrelevant to her work as a judge because she would only be interpreting the Constitution and the laws of this country.” But Kagan's statement that she would rely on the Constitution and laws rather than natural rights is completely noncontroversial, and indeed Justice Clarence Thomas made similar statements during his confirmation hearing.

During her hearing, Kagan testified to Sen. Tom Coburn (R-OK): “I believe that the constitution is an extraordinary document, and I'm not saying that I do not believe that there are rights preexisting that the constitution and the laws -- but my job as a justice is to enforce the constitution and the laws.”

Severino said Kagan's exchange with Coburn was “painful.” Severino later said “This is not the time for a potential Supreme Court justice to be iffy on the Declaration of Independence. So much for the right to Life, Liberty and the Pursuit of Happiness.”

But Kagan's comments were noncontroversial. Indeed, her comments echo what Thomas said during his own confirmation hearing when he rejected the idea of using “natural law in constitutional adjudication.” From Thomas' hearing:

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.