Over the last several days the Senate Judiciary Committee held confirmation hearings on Solicitor General Elena Kagan, President Obama’s nominee to replace John Paul Stevens as Associate Justice of the Supreme Court. Unfortunately, only two senators took the time to ask Solicitor General Kagan about the crucially important issue of religious freedom.
Senator Dianne Feinstein (D-CA) asked Kagan about the tension between the Establishment and Free Exercises Clauses of the First Amendment. Kagan’s answers demonstrated her thorough understanding of the way these clauses can conflict with one another, and of the judicial tests (like the Lemon Test and the Endorsement Test) that can be used to resolve such conflicts. Senator Feinstein also asked about taxpayers’ ability to bring lawsuits (“standing”) challenging presidential programs like the faith-based initiative. Kagan explained the Court precedent allowing taxpayers to bring Establishment Clause suits against legislative branch action but not against executive branch action, but she could not say mush since the Court has agreed to take a case that will deal with this issue next term.
Later in the hearings Senator Ben Cardin (D-MD) followed up on this Q&A by asking Kagan about whether students should receive special protections under the Establishment Clause. Kagan’s answer showed that she understood the Coercion Test, which is usually applied by the courts in these cases, saying that this test is applied more easily to children, but that this is a very “contentious area in the law.”
While we are thankful for the questions asked by Senators Feinstein and Cardin, we had hoped that Solicitor General Kagan would be questioned about religious freedom more thoroughly than she was