A Supreme Court nominee whose record is thin in certain areas of the law really should be questioned thoroughly for her judicial philosophy on those points. Instead, recent history tells us the opposite: the confirmation process will focus not on the question marks, but on any point of controversy that can be hammered over and over.
What does that mean for the prospects of religious freedom getting strong mention in Elena Kagan's confirmation hearing, which should take place this summer? That I probably shouldn't get my hopes up. The most likely mention is a repeat of something Kagan was already asked about at her Solicitor General hearing: a memo she wrote for Justice Thurgood Marshall suggesting that federal money should not go to religious organizations. Her answer? That she was wrong :
It seems now utterly wrong to me to say that religious organizations generally should be precluded from receiving funds for providing the kinds of services contemplated by the Adolescent Family Life Act.
Those of us that care about the First Amendment should press Senators to ask tough questions on the essential freedoms protected by the Constitution, especially when we know so little about the nominee's point of view in that regard.
