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Lee Ross

Supreme Court

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Who is Elena Kagan?

May 10, 2010 - 1:12 PM | by: Lee Ross

Analysis:

Kagan’s selection reflects President Obama’s desire to nominate someone who has already been vetted and confirmed by the current Senate and has a reputation of working well with others. Kagan, the current Solicitor General, was supported for that post by liberals and conservatives alike. By all accounts Kagan is thought to be brilliant and has an easy-going approach that makes people warm to her–or at the very least, not provoke knee-jerk convulsions against her. This temperament even led to a New York Times article wondering if she was too bipartisan for liberals looking for the president to select a left-wing hardliner. Unlike the newest Supreme Court justice, Sonia Sotomayor, who comes across as a rather likable everyday person, Kagan may be viewed by regular Americans as a stuffy intellectual.

Bio:

Single, 50, No Children. Born in New York City

Education: Bachelor’s Degree, Princeton (1981) Master’s Degree, Oxford (1983) Law Degree, Harvard (1986)

Kagan is a former dean of the Harvard Law School and is now the Solicitor General of the United States.

To become SG, she passed muster with the Senate Judiciary Committee by a 13-3 margin. The only dissenters were Senators Sessions (R-AL), Cornyn (R-TX) and Grassley (R-IA) On March 19, 2009 the full Senate confirmed her 61-31. All “no” votes were Republicans.

Before becoming Harvard’s Dean–where by all accounts she succeeded in getting a fractious faculty harmonized and was copacetic with conservatives–Kagan worked in the Clinton White House and also taught at Chicago Law School alongside Barack Obama.

She was a law clerk to Supreme Court justice Thurgood Marshall and retired Appeals court judge Abner Mikva.

Potential Problems with the Nomination:

The most obvious is that she has never judged a case in her life. But she had never argued a case in her life either and yet she was confirmed as Solicitor General.

No paper trail. By and large she has no significant record for opponents to cull through. Certainly not the level that a judge in this similar position would have. Some people may see this as a positive. The last high court nominee with this profile was David Souter who had a strong history in state (New Hampshire) law but no record to speak of on federal law. He was considered a “stealth candidate” that Democrats couldn’t “Bork” but turned out to be a very liberal justice. Some liberals (Glenn Greenwald) have already expressed concern about her lack of record. Conservatives will assume that her liberal bona fides are solid enough for her to be the president’s pick.

The Judicial Crisis Network has targeted Kagan, going back to last year. More recent criticism goes after her work as Solicitor General including a decision to submit a government brief in a racial preference case involving the University of Texas. JCN’s Carrie Severino says the decision “suggests that she would be another nominee who, like Justice Sotomayor, believes race and ethnicity can place a thumb on the scales of justice.”

The focus of much early criticism will be Kagan’s attempt at Harvard to keep military recruiters off campus because of objections over the Pentagon’s “don’t’ ask, don’t tell” policy to gay service members. In 2003, she is quoted as telling a gathering of gay Harvard Law alums that “The military policy that we at the law school are overlooking is terribly wrong, terribly wrong in depriving gay men and lesbians of the opportunity to serve their country,” she said. “The need to create this exception makes me and makes almost all the members of the Harvard Law School community profoundly unhappy.”

Kagan signed an amicus (friend of the court) brief to the Supreme Court arguing against a Clinton-era law (aka the Solomon Amendment) mandating college campuses that accept federal funding to also allow military recruiters. The Supreme Court ruled unanimously against Kagan’s position and in favor of the law. At her 2009 confirmation hearing for Solicitor General, Kagan said in that position she would have defended the law.

Kagan’s personal life may also become an issue. Last month a minor media controversy blew up when CBS News posted a blog report saying Kagan, who is not married, would become the “first openly gay justice.” The White House reacted strongly to the report, questioning the network’s journalistic integrity. CBS eventually pulled the post off the website. The White House also reportedly distributed talking points to counter an on-line report that Kagan did a poor job of diversifying the faculty at Harvard when she was law school dean.

Praise for the Nomination:

Most if not all liberal groups will praise Kagan’s selection even if they hoped President Obama might pick someone else.

Here is a write-up of Kagan from the Alliance for Justice.

Cases argued before the Supreme Court as Solicitor General of the United States:

Citizens United v. FEC. September 9, 2009

Salazar v. Buono October 7, 2009

Free Enterprise Fund v. PCAOB December 7, 2009

United States v. Comstock January 12, 2010

Holder v. Humanitarian Law Project February 23, 2010

Robertson v. United States March 31, 2010

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