Sen. Sessions: CA Judge Applying ‘Personal’ Views; Kagan Would Support Gay Marriage on High Court

By Alex Pepper

Aug 4, 2010 1:30pm

ABC News’ Rick Klein reports:

Even before a federal judge hands down a ruling on the California gay marriage case, the top Republican on the Senate Judiciary Committee is laying down a political marker, declaring this as an instance of an activist judge applying “personal, political, ideological views” to a court case.

“It’s another example of a judge allowing their personal, political, ideological views to impact their decision-making,” Sen. Jeff Sessions, R-Ala., said today on ABC/Washington Post’s “Top Line” today.

“The people who wrote our Constitution and the amendments to it would have been flabbergasted — amazed — that somebody would declare that our Constitution defined marriage in this fashion, other than it had been traditionally done. In other words, the states should have the right to define marriage as they choose, and the Constitution does not, in any way, constrict that, in my view.

“So I think it’s an example of the things that irritate the American people, one reason why Elena Kagan’s numbers in a recent poll that just came out are the lowest of any recent nominee for confirmation.”

Judge Vaughn Walker, who was appointed to the federal bench by President George H.W. Bush, is scheduled to hand down his ruling on the challenge to California’s ban on gay marriage this afternoon.

The court is almost certain to make its way to the Supreme Court – where Sessions said he expects the woman who’s set to become the newest justice, Elena Kagan, to support a right for gay and lesbian couples to marry.

“She violated the law at Harvard and blocked the military from going on campus because she disagreed with their gay — the gay policy that Congress had established, not the military,” Sessions said. “And she failed — and this is very serious to me — she failed as solicitor general, after she had promised to defend that ‘don’t ask, don’t tell’ law, she failed to defend it effectively and has left it under a great cloud, when, had she taken it to the Supreme Court, it would have been upheld, I’m confident.

“So yes, I think she has certain ideological views – social views – that are likely to influence her decision-making and objectivity on the bench. That’s disqualifying, really.”

Kagan is almost certain to be confirmed to the high court tomorrow, despite Sessions’ strong objections to her nomination.

“I think her record is problematic. But perhaps not enough members have observed her testimony, and the fact that it was more political spin than really honest description of a series of matters that she was involved with over the years — that I think raised questions about her legal capacity — the clarity of her mind as a lawyer, as a judge.

“But I think the American people get it, this idea of an activist judge is being rejected by the people. So I think we’re winning that debate. And in the long term, it’s so important that we have objective judges — not as President Obama says, who allows their empathy to move us to a ‘broader vision of what America should be.’ That’s not the role of a judge, and it needs to be soundly rejected.

“One Democrat has indicated already that he will vote ‘no,’ and it’ll be interesting to see how many others will. They’re not lemmings. They have to make up their own mind.”

Though Sessions said Kagan’s record should be “disqualifying” for a spot on the Supreme Court, he said he’s not prepared to support a filibuster.

“I do believe that a filibuster is a high burden. I’m not prepared to do that. I don’t think the Senate is prepared to do that at this point,” he said. “But it is troubling, and the American people need to be engaged about this, because if we continue to have this kind of nominee to the Supreme Court, rights — like the right to keep and bear arms, which was upheld by a 5-to-4 vote — will be lost. And I think it’s important.”

Watch the full interview with Sen. Jeff Sessions HERE.

For our “Post Politics” segment, we checked in with Bob Barnes, who covers the Supreme Court and legal issues for The Washington Post, about GOP disappointment in not getting the public to focus on the Kagan nomination, plus the political fallout expected from the gay marriage hearing.

Watch the discussion with Bob Barnes HERE.

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