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


Lee Ross

Supreme Court


Kagan Questionnaire Offers Few New Details

May 18, 2010 - 6:23 PM | by: Lee Ross

In detail that most people would find exhaustive, Supreme Court nominee Elena Kagan submitted her official questionnaire to the Senate Judiciary Committee Tuesday afternoon, but critics will likely find little useful information in the 202 page document with assorted attachments in their attempt to better understand Kagan’s judicial philosophy.

The questionnaire is a standard requirement for judicial nominees and many of Kagan’s answers are very similar if not identical to the ones she provided to the committee last year prior to her confirmation as Solicitor General. Since many of the questions are biographical in nature, this repetition is not surprising.

What is new is her responses to questions about recusals and her interactions with senior White House staff in the weeks prior to her nomination. The filing also includes numerous newspaper articles she wrote as an undergraduate at Princeton and speeches she’s given over the years. She also declared her net worth at $1,762,519 and said if confirmed she would step down from the Harvard Law School faculty.

On the issue of recusals, which comes up in questions 13 and 23 of the questionnaire, Kagan says she removed herself from several cases because of connections to the Harvard Law School which she led before becoming Solicitor General. She also took herself out of a case that was before a federal court in New York related to her friend Eliot Spitzer, the former governor of New York.

Kagan was asked what she would do as a justice when conflicts arise, she said, “if confirmed, I would recuse in all matters for which I was counsel of record. I would also look to the letter and spirit of the Code of Conduct for United States Judges (although it is not formally binding on members of the Supreme Court of the United States), the Ethics Reform Act of 1989…and any other relevant prescriptions.” Kagan also said she would consult with other members of the Court before making a decision.

The issue of recusals has come up, more so than other high court confirmations, because of the many cases that Kagan has been exposed to as Solicitor General. The last person to make that transition was Thurgood Marshall (Kagan clerked for Marshall in the 1980’s) who refused to take part in several dozen cases early in his tenure on the Supreme Court because of his prior work as Solicitor General. There has also been some discussion that Kagan might have to beg off from hearing a high court challenge to the recently passed health care legislation.

In discussing her nomination, Kagan who was passed over for the spot last year that went to Sonia Sotomayor, said she was first contacted by White House officials on March 5, more than a month before Justice John Paul Stevens publicly announced his intention to retire.

In addition to interviews with President Obama and Vice President Joe Biden, Kagan said she had meetings with White House Counsel Bob Bauer and his deputy Susan Davies. She also met with top White House aides David Axelrod, Ron Klain, Cynthia Hogan and Lisa Brown, as well as, various lawyers with the Washington D.C. law firm Skadden Arps that helped with the vetting process.

In addition to the questionnaire there are numerous attachments to various articles, speeches and other writings. 47 of these come from her time at Princeton when she worked on the student newspaper, the Daily Princetonian in the late 1970’s and early 1980’s.

In one article, she quotes Class of ‘81 student Eliot L. Spitzer. In another piece, co-authored by her fellow editors of the Princetonian, apparently at the end of their tenure as the editors, Kagan and two others say [January 21, 1981 - the day after Reagan was inaugurated]: “People don’t edit the Prince because of the personal recognition that goes with the job; there isn’t any. And people don’t do it because they believe in the Right of the People to Know; noble ideals die quickly in a newsroom atmosphere. The camaraderie of the newsroom? People only mention that on law school applications.”

Also included in the attachments are articles Kagan wrote covering the 1978 election night victory of former Senator Bill Bradley (D-NJ) who was a Princeton graduate and a November 1979 article about a student group’s planned protest against the possible use of American military force against Iran just a couple of weeks after the takeover of the embassy in Tehran. There is also a short article about a Playboy photographer coming to campus to take pictures of female students. Another well- publicized article about her anguish as a political staffer who cried when her candidate lost is also included.

There is also an article written about Kagan after she won a prestigious scholarship to attend Oxford for two years of graduate work. The article says the purpose of the scholarship was to reward a senior whose prospective career “would be most likely to have consequence of value to the public.”

Fox’s James Rosen contributed to this post.