May 10, 2010
POSITION: Supreme Court nominee
NOMINEE: Elena Kagan
Born: April 28, 1960
Occupation: Dean of Harvard Law School and Charles Hamilton Houston Professor of Law at Harvard University.
Education: BA summa cum laude, Princeton University, 1981; MPhil, Worchester College, Oxford, 1983; JD magna cum laude, Harvard Law School, 1986
Clinton White House: 1995-1996 associate counsel to the President; 1997-1999 deputy assistant to the President for Domestic Policy; 1997-1999 deputy director Domestic Policy Council.
NOTE: From 1986 to 1987 Ms. Dean Kagan served as a judicial clerk for Judge Abner Mikva on the U.S. Court of Appeals for the D.C. Circuit. From 1987-1988 she also served as a judicial clerk for Supreme Court Justice Thurgood Marshall. Dean Kagan briefly served as a staff member for Michael Dukakiss presidential campaign. During the summer of 1993 she served as Special Counsel to the Senate Judiciary Committee to work on the confirmation of Supreme Court Justice Ruth Bader Ginsburg.
Gays in the Military
Last year candidate Barack Obama repeatedly opined that students should have military service opportunities on campus. However, President Obama’s nominee for solicitor general, Harvard Law School Dean Elena Kagan, believes the military should be barred from campus. In fact, she fought all the way to the United States Supreme Court, trampling on students’ constitutional rights all the way there, in order to deny qualified students the opportunity to serve our country … Kagan’s staunch ideological opposition to the military and providing qualified students the opportunity to serve puts her well outside of the mainstream. Even Bill Clinton, who dodged a military draft during Vietnam, signed the law Kagan opposes, the Solomon amendment, with overwhelming congressional and public support.
Solomon, simply put, seeks to facilitate voluntary military service by asking colleges and universities to allow students to meet with military recruiters on campus and to participate in the Reserve Officers’ Training Corps (ROTC). Schools whose policies or practices obstruct students from taking part are ineligible for federal funding.
Yet, Kagan, who has categorized the law as “immoral” at a 2003 Harvard student forum, argued in support of the position of the Forum for Academic and Institutional Rights, the so-called FAIR coalition, claiming elite schools have a right to taxpayer largesse while simultaneously barring the military - a radical view the Supreme Court unanimously struck down … Yet, leftwing views like Kagan’s still disparage the sacrifices our military makes and cause real, quantifiable harm to students and to our nation at taxpayer expense. According to Harvard’s annual financial statements, the school received $473 million of our hard-earned dollars during the 2003-4 school year, while FAIR, with Kagan’s help, won an injunction against the military in the Third Circuit. Harvard took another $511 million during the following school year and, for 2005-6, $517 million more as the Supreme Court heard and rejected FAIR’s claims.
Even Ruth Bader Ginsberg, a former American Civil Liberties Union lawyer and centerpiece of the liberals’ high court coalition, couldn’t find a way to justify these spurious, anti-student claims and recognized Congress’ ability to condition taxpayer spending. Flagg Youngblood, Solicitor General Flimflam, The Washington Times, January 30, 2009.
Believes courts should support hate crime laws and that when reviewing regulations of speech, courts could evaluate motive directly, they could remove the lions share of the First Amendments doctrinal clutter. Elena Kagan, Private Speech, Public Purpose: The Role of Government Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 516 (1996).
In her 1993 University of Chicago Law Review piece, she wrote that proposed regulations on hate speech and pornography failed to adhere to the fundamental First Amendment principle of viewpoint neutrality that the government cannot favor certain private speakers or viewpoints over others. Her 1996 article on government motive in First Amendment cases has been cited more than 115 times an enviably high number for a secondary source. In that article she declares that the application of First Amendment law is best understood and most readily explained as a kind of motive-hunting. David Hudson, Jr., Solicitor-general nominee: impressive First Amendment resume, FirstAmendmentcenter.org.
On Opposing Religious Institutions Involving Themselves In Pregnancy
As a young law clerk, Kagan, 49, once penned a memo saying it would be difficult for a religious organization to take government funding to counsel teenagers about pregnancy without injecting some kind of religious teaching. When a Senator asked her about the memo, Kagan did not hesitate to distance herself from its views, saying she had fresh eyes two decades later. I looked at it, and I thought, That is the dumbest thing I’ve ever heard, she said. Michael Sherer, Solicitor General Elena Kagan, Time, April 13, 2010.
On Questioning of Presidential Nominees
Kagan herself has called for the Senate to use confirmation hearings to engage nominees in meaningful discussion of legal issues. In her 1995 review (62 U. Chi. L. Rev. 919) of Stephen L. Carters The Confirmation Mess, Kagan argues that the critical inquiry that the Senate should conduct on a Supreme Court nominee concerns the votes she would cast, the perspective she would add (or augment), and the direction in which she would move the institution. Kagan draws as the fundamental lesson of the Bork hearings … the essential rightnessthe legitimacy and the desirabilityof exploring a Supreme Court nominees set of constitutional views and commitments.
Although Carters book and Kagans review focus heavily on Supreme Court nominees, they also address DOJ nominations (especially Clintons 1993 nomination, subsequently withdrawn, of Lani Guinier to be AAG for Civil Rights), and Kagans view of the Senates role applies fully to those (and other executive-branch) nominations. That, of course, is hardly surprising, as the case for careful scrutiny of the legal views of DOJ nominees, even if combined with greater deference to the president, seems widely accepted. Ed Whelan, Obamas SG Pick Elena Kagan, NROs The Corner, January 7, 2009.
On Lack of Experience
Kagan may well have less experience relevant to the work of being a justice than any justice in the last five decades or more. In addition to zero judicial experience, she has only a few years of real-world legal experience. Further, notwithstanding all her years in academia, she has only a scant record of legal scholarship. Kagan flunks her own threshold test of the minimal qualifications needed for a Supreme Court nominee. Ed Whelan, Supreme Court Nominee Elena Kagan, NROs Bench Memos, May 10, 2010.
On Being a Washington and Obama Administration Insider
There is a striking mismatch between the White Houses populist rhetoric about seeking a justice with a keen understanding of how the law affects the daily lives of the American people and the reality of the Kagan pick. Kagan is the consummate Obama insider, and her meteoric rise over the last 15 yearsfrom obscure academic and Clinton White House staffer to Harvard law school dean to Supreme Court nomineewould seem to reflect what writer Christopher Caldwell describes as the intermarriage of financial and executive branch elites [that] could only have happened in the Clinton years and that has fostered the dominant financial-political oligarchy in America. In this regard, Kagans paid role as a Goldman Sachs adviser is the perfect marker of her status in the oligarchyand of her unfathomable remoteness from ordinary Americans. Ed Whelan, Supreme Court Nominee Elena Kagan, NROs Bench Memos, May 10, 2010.
Goldman Sachs Ties
Solicitor General Elena Kagan was a member of the Research Advisory Council of the Goldman Sachs Global Markets Institute, according to the financial disclosures she filed when President Obama appointed her last year to her current post. Kagan served on the Goldman panel from 2005 through 2008, when she was dean of Harvard Law School, and received a $10,000 stipend for her service in 2008, her disclosure forms show. Matt Kelly, Possible Supreme Court pick had ties with Goldman Sachs USA Today, April 27, 2010.
Opposition by Liberals
Liberal legal scholars and experts stepped up their attacks Friday on Elena Kagan as a potential Supreme Court nominee, hoping to dissuade President Obama from selecting her in the last few days before an expected announcement early next week. A group of four law professors Friday morning published a piece at Salon.com criticizing Kagan, Obamas solicitor general, for hiring too few women and minorities when she was dean of Harvard law school. Liberal attorney and blogger Glenn Greenwald who has taken Kagan to task for her views on executive power and been the chief organizing force behind criticism of Kagan promoted the column on his Twitter account and kept up a drumbeat against Kagan… .Ive devoted everything I can to making the case against Kagan before Obama chooses, precisely because I know that once he makes his selection, the overwhelming majority of progressives and Democrats will cheer for her even if they have no idea what she thinks or believes, Greenwald said… .Prominent liberal legal scholar Erwin Chemerinsky made that very point this week in an interview. The reality is that Democrats, including liberals, will accept and push whomever Obama picks, said Chemerinsky, founding dean of the University of California-Irvine law school. Obviously, liberals hope that Obama will pick someone more from the left than the center. It cant be that Republicans pick conservatives and Democrats pick only moderates. John Ward, Liberal activists intensify attacks on Kagan as court pick nears, The Daily Caller, May 7, 2010.