Supreme Court Nominee Elena Kagan’s Views just as Opaque as Obama’s

IS THE SOLICITOR GENERAL JUST ANOTHER CLOSET RADICAL?

by Debra Mullins

(Jun. 8, 2010) — Obama’s Supreme Court nominee to replace retiring Justice John Paul Stevens, Solicitor General Elena Kagan, has no judicial experience and a rather slim resume as a litigator. Kagan, who is also a Harvard Law School graduate, has spent all but three years of her career in the lofty world of academia and in the government sector under the Clinton Administration where she served as Associate White House Counsel from 1995-1996, and as Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council from 1997-1999.

Kagan was also nominated by Clinton in 1999 for the U.S. Court of Appeals for the District of Columbia. Then-Judiciary Committee Chairman Orrin Hatch (R-UT) never scheduled a confirmation hearing and her nomination eventually lapsed.

Ms. Kagan’s curriculum vitae, by all appearances, is quite stellar; an A.B. in History from Princeton University where she graduated summa cum laude in 1981; a Master of Philosophy degree from Oxford University in 1983; and a J.D. from Harvard University where she graduated magna cum laude in 1986. Kagan also clerked for Supreme Court Justice Thurgood Marshall in 1988 and worked for the Washington, D.C.-based firm of Williams & Connolly LLP as an associate from 1989-1991.

Kagan returned to academia in 1991 as an assistant professor at the University of Chicago’s Law School, where she received tenure as a professor of law in 1995. She first met Obama at the university when he served as a part-time lecturer in constitutional law.

After her stint at the White House, Ms. Kagan again returned to academia 1999 as a visiting professor at Harvard Law School; in 2001, she became a full professor. In 2003, she assumed the helm as Dean of the Harvard Law School, a position she held until her appointment as the Solicitor General was confirmed by the Senate in March 2009. As Dean, Kagan successfully recruited and hired Cass Sunstein, Obama’s regulatory czar, and Lawrence Lessig, a copyright and trademark law expert and political activist. Kagan also banned the Army ROTC from recruiting on the law school’s campus due to the military’s ‘Don’t ask, don’t tell” policy for homosexuals serving in the Armed Forces, a position she maintained until the Supreme Court overturned an appellate court decision that declared the Solomon Amendment unconstitutional. The Solomon Amendment requires universities which receive federal funding to allow military recruiters on their campuses or else lose their funding.

The Senate Judiciary Committee has scheduled confirmation hearings to begin on June 28, 2010. Given how sparse Kagan’s experience is as a litigator and the fact that she has never served on the bench, the Senate Judiciary Committee will not have many briefs or any opinions to review in order to ascertain how she might opine as a member of the U.S. Supreme Court.

The Judiciary Committee will rather have to depend on questionnaires she submitted as the Solicitor General nominee and as a Supreme Court nominee, scholarly and legal papers she has authored, briefs she has written since assuming her position as Solicitor General, and documents or memos she produced while serving the Clinton Administration and during her clerkship with Justice Marshall.

Republicans had requested more time to pour over Kagan’s record before the hearings, but the request was denied by Senate Judiciary Committee Chairman, Senator Patrick Leahy (D-VT).

In 1981, Kagan wrote a senior thesis titled, “To the Final Conflict: Socialism in New York City 1900-1933,” in which she attempts to explain “why the growing and confident American socialist movement of the Progressive Era suddenly fell apart.”  This and other statements derived from her thesis may be a reflection of her views on socialism:

Americans are more likely to speak of a golden past than of a golden future, of capitalism’s glories than of socialism’s greatness.

The story of internal feuding [Socialist Party] exhausted itself forever and further reduced labor radicalism in New York to the position of marginality and insignificance from which it has never recovered. The story is a sad but chastening one for those who more than half a century after socialism’s decline, still wish to change America.

Radicals have often succumbed to the devastating bane of sectarianism; it is easier, after all, to fight one’s fellows than it is to battle an entrenched and powerful foe. Yet if the history of Local New York shows anything, it is that American radicals cannot afford to become their own worst enemies.

In unity lies their only hope.

The entire thesis can be found here.

In 1996, Kagan wrote an article for the University of Chicago Law Review titled: “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.” Ms. Kagan argued that when dealing with free speech, the government’s motive for suppressing it should be taken into consideration. For example, if the speech in question is determined to be offensive to either the government or to society, it could, in theory, be suppressed. There are currently nine general categories of unprotected free speech.

Eugene Volokh, a constitutional law professor at UCLA and blogger at The Volokh Conspiracy, recently opined that it was hard to tell for sure how Kagan would vote on First Amendment cases. Volokh wrote: “This is partly because her work is in large measure structural and theoretical, rather than focusing on specific constitutional controversies. And it is partly because even her articles that focus on such specific controversies, such as over so-called “hate speech” and pornography, are often more analytical rather than prescriptive.”

The entire Kagan thesis can be found here.

Kagan’s views on the First Amendment might be further gleaned from her first oral argument before the Supreme Court in Citizens United vs. Federal Election Commission (FEC). Citizens United, a grassroots advocate of limited government and free enterprise, filed a complaint in U.S. District Court after the FEC disallowed the broadcast of advertisements promoting the release of its documentary about then-Presidential candidate Hillary Clinton. The release of the documentary happened to coincide with the 2008 Presidential primary elections, and the FEC ruled the advertising was a form of electioneering communications which was banned at the time under the Bipartisan Campaign Reform Act (BRCA), also known as the McCain-Feingold Campaign Reform Act.

Ms. Kagan argued on behalf of the FEC that if a corporation were allowed to endorse candidates via the purchase of broadcast, cable and satellite communications, it would not necessarily reflect the views of its shareholders and it could potentially corrupt the political process. Kagan also argued that the BRCA not only allowed the FEC to regulate the direct purchase of electioneering communications by corporations and unions, but it could also, in theory, regulate full-length books, and, more importantly, endorsement pamphlets, which are also considered to be a classic form of electioneering communications.

In January 2010, the Supreme Court struck down portions of the BRCA on a vote of 5-4. The majority opinion felt the law was an infringement of free speech under First Amendment and thus freed corporations and unions from the restriction. Such entities can now directly engage in electioneering communications. During February’s State of the Union address, Mr. Obama criticized the Supreme Court for its ruling and urged Congress to pass a bill to “help right this wrong.”

If confirmed, Kagan will likely side with pro-choice advocates. In 1998, Kagan advised Clinton that encouraging a federal law banning doctor-assisted suicides in response to Oregon’s 1994 Death with Dignity Act would be “a fairly terrible idea.” In 1991, Kagan publicly criticized a Supreme Court decision (Rust v. Sullivan) which upheld the right of the Department of Health and Human Services to restrict groups that performed or promoted abortions from receiving federal funding.

Some notable GOP senators are expressing their reservations about Kagan. Senator Jeff Sessions (R-AL), the ranking Republican on the Senate Judiciary Committee, recently commented on memos Kagan wrote while serving as a law clerk for Justice Marshall:

The newly unearthed memos reveal not only Ms. Kagan’s strong liberal views, but a willingness to bring those views into the courthouse – shaping and even replacing legal judgment. From issues such as guns to abortion to crime control, Kagan’s memos unambiguously express a leftist philosophy and an approach to the law that seems more concerned with achieving a desired social result than fairly following the constitution.”

On May 11, McConnell told reporters “a lifetime position on the Supreme Court does not lend itself to on-the-job training. If a nominee doesn’t have judicial experience, they should have substantial litigation experience. Ms. Kagan has neither.” McConnell has also said that Kagan needs to address concerns that she would serve as a rubber stamp for the Obama Administration.

During a May 16 appearance on NBC’s “Meet the Press,” Senate Minority Leader Mitch McConnell (R-KY) expressed his concerns over Kagan’s argument before the Supreme Court in Citizens United v. FEC in which Senator McConnell commented:

Solicitor Kagan’s office, in the initial hearing, argued that it’d be okay to ban books. And then when there was a re-hearing, Solicitor Kagan herself, in her first Supreme Court argument, suggested that it might be okay to ban pamphlets. I think that’s very troubling.

On June 4, the Clinton Library released over 45,000 pages of Kagan’s paperwork. The White House had previously requested over 160,000 pages from the Clinton Library. Senator Sessions called the number of documents released “inadequate.”  He said, “The batch of documents received today represent less than a third of the 160,000 pages of material we have been told exist from Elena Kagan’s time as a senior policy aide to President Clinton. We are now a mere 23 days away from the hearing and the committee still has yet to receive over 100,000 pages of documents.”

Senator Leahy believes the documents released are sufficient and countered, “With this initial delivery of documents, the Judiciary Committee has received more information from the administration than was made available at this point in the confirmation process for either the [John] Roberts or [Samuel] Alito nominations.”

Democrats are aiming for a full Senate confirmation vote before the Senate’s August recess.