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Wednesday, April 7, 2010 as of 11:14 AM ET

Capitol Hill

Shannon Bream

Washington, DC


Kagan’s Paper Trail

May 10, 2010 - 10:41 PM | by: Shannon Bream

Solicitor General Elena Kagan, President Obama’s new Supreme Court nominee, has never been a judge. As such, her paper trail is much slimmer than the average nominee, but it still is providing fodder for critics.

Groups on both the right and left say they are worried that Kagan is too much of an unknown entity for them accurately gauge what kind of justice she would be. They are uniformly asking senators to fully vet and question Kagan, to get a better sense of where she stands on key issues.

That’s a subject Kagan has addressed before and will now have to confront head on. In a 1995 piece for the University of Chicago Law Review, Kagan called the confirmation process “an embarrassment” and wrote, “Senators today do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues.”

Critics and supporters alike are eager to see how Kagan feels about the process, now that she’ll be the one in the hot seat before the Senate Judiciary Committee.

Senators are sure to have questions about the decision she made while dean of Harvard Law School — to ban military recruiters from the campus. Kagan has long opposed the military’s “Don’t Ask, Don’t Tell” policy calling it a “moral injustice of the first order.” She believed that allowing the military to recruit on campus would violate anti-discrimination policies.

The issue was eventually litigated all the way to the Supreme Court, and Kagan signed on to a brief along with a number of other educators and institutions. The group lost in a unanimous Supreme Court opinion authored by Chief Justice John Roberts.

Kagan complied with the decision, allowing recruiters back on campus – but expressed her disappointment in having to do so. A number of advocacy groups that support military interests say Kagan’s selection is a tough blow. Move America Forward, which bills itself as a grassroots military support group, calls Kagan “anti-military” – though she has been careful to note her respect and admiration for the work the U.S. military does.

Her writings while a student at Princeton will also spark interest during her confirmation hearings. In November 1980, she authored a piece for the student newspaper called “Fear and Loathing in Brooklyn.” In it, Kagan said she “absorbed … liberal principles early,” and she lamented the political success the right was having. She wrote that she looked forward to a time when a “more leftist left will once again come to the fore.”

Her senior thesis at Princeton focused on the demise of the Socialist movement in the early 20th century. Kagan referred to it as “… a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America.”

Her supporters say it was simply a college paper that examined, but did not condone socialism. The professor who oversaw her research for the piece went a step further, calling Kagan the “furthest thing from a socialist – period.”

However, with such an abbreviated record to parse, the writings are sure to attract attention in the weeks ahead.