According to the New York Times and MSNBC, President Barack Obama will nominate Solicitor General Elena Kagan will be nominated for the Supreme Court vacancy. If confirmed, she will replace Justice John Paul Stevens.
According to Wikipedia,com:
Elena Kagan (pronounced /ˈkeɪɡən/),[2] born April 28, 1960[1]) is Solicitor General of the United States. She is the first woman to hold that office, having been nominated by President Barack Obama on January 26, 2009, and confirmed by the U.S. Senate on March 19, 2009. Kagan was formerly dean of Harvard Law School and Charles Hamilton Houston Professor of Law at Harvard University. She was previously a professor of law at the University of Chicago Law School. She served as Associate White House Counsel under President Bill Clinton. It has been reported by MSNBC and the New York Times that Kagan will be nominated to be the next U.S. Supreme Court justice, replacing John Paul Stevens, by President Obama on May 10, 2010.[3][4] If nominated and confirmed, she would become the fourth female Supreme Court justice in United States history and third on the court’s current bench. She would also be the eighth Jewish justice and the third on the current bench.
I can’t wait to see what the dumbest thing she ever said was, and put that under the magnifying glass.
[…] Moonhowlings » President Obama to Nominate Solicitor General Elena Kagan for Supreme Court Vac… […]
She is interesting….
Copy/paste from Judgepedia.
Court experience
Although the Senate confirmed Ms. Kagan in March, she has not argued in any case before the Supreme Court or any of the federal appellate courts.
In the two years that Ms. Kagan spent in private practice as an associate, from 1989-91, she appeared “occasionally” in court.[8]
Notable statements and writings
Although Kagan has not written opinions or very many briefs, she answered many questions in January 2009 as part of the confirmation process to become Solicitor General. She has also authored many published works.
Confirmation hearing controversies
Senator Arlen Specter, then the ranking Republican member of the Senate Judiciary Committee, said that Ms. Kagan’s answers to his questions were “inadequate for confirmation purposes.” Specter became frustrated because Kagan often refused to give her own views regarding “whether particular Supreme Court decisions were rightly decided.”[9]
Kagan generally gave a variation of this answer when Specter requested her views on Supreme Court decisions:
“As noted earlier, the Solicitor General owes important responsibilities to the Court, one of which is respect for its precedents and for the general principle of stare decisis. I do not think it would comport with this responsibility to state my own views of whether particular Supreme Court decisions were rightly decided. All of these cases are now settled law, and as such, are entitled to my respect as the nominee for Solicitor General. In that position, I would not frequently or lightly ask the Court to reverse one of its precedents, and I certainly would not do so because I thought the case wrongly decided.”[10]
Role of courts
Kagan has spoken or written of her view of how courts should relate to the broader society on several occasions.
Kagan wrote an appreciation of Justice Marshall in 1993. In that publication, she stated, “…in Justice Marshall’s view, constitutional interpretation demanded, above all else, one thing from the courts: it demanded that the courts show a special solicitude for the despised and disadvantaged. It was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government—to safeguard the interests of people who had no other champion. The Court existed primarily to fulfill this mission. . . . And however much some recent Justices have sniped at that vision, it remains a thing of glory.”[11]
During her confirmation hearings, Senator Specter asked Ms. Kagan about her view of the role of the courts and their interaction with the political branches. In part, Ms. Kagan responded: “I think it is a great deal better for the elected branches to take the lead in creating a more just society than for courts to do so.”[12]
Military recruitment
Given her position as Dean of Harvard Law School, Ms. Kagan commented frequently on the controversy regarding whether to allow military recruiters the same access to students as other employers. As a result of the military’s “don’t-ask-don’t-tell” policy, many universities determined that the military did not comply with their nondiscrimination policies and denied recruiters equal access. In response, Congress passed the Solomon Amendment, which required universities that accepted Federal funds to provide military recruiters with such equal access. Many universities challenged the Solomon Amendment, alleging that it violated the First Amendment right to association. Although the Third Circuit agreed with this argument, the Supreme Court unanimously upheld the Solomon Amendment and reinstated the funding condition.[13]
After the Third Circuit invalidated the Solomon Amendment, Ms. Kagan prevented the military from recruiting on campus for one semester. After the government threatened to withhold campus funds, Ms. Kagan allowed the military to return to campus the next semester.[14]
Ms. Kagan and many other Harvard Law professors signed an amicus curiae brief filed with the United States Supreme Court. The brief presented a statutory argument; namely, that the Amendment did not require universities to make the military exempt from neutral and generally applicable recruiting rules.[15]
First Amendment
During Ms. Kagan’s confirmation hearings to become Solicitor General, Senator Specter referenced a memo she wrote for Justice Marshall about an act that authorized federal funds to religious organizations that provided care for teen pregnancies. [Bowen v. Kendrick, 487 U.S. 589 (1988).] According to the memo, Kagan concluded that it is:
“difficult for any religious organization to participate in such projects without injecting some kind of religious teaching . . . . But when the government funding is to be used for projects so close to the central concerns of religion, all religious organizations should be off limits.”
In response to written questions from Senator Sessions regarding this memorandum, Ms. Kagan stated that:
“It seems now utterly wrong to me to say that religious organizations generally should be precluded from receiving funds for providing the kinds of services contemplated by the Adolescent Family Life Act . . . . I think it incorrect (or, as I more colorfully said at the hearing, ‘the dumbest thing I ever heard’) essentially to presume that a religious organization will use a grant of this kind in an impermissible manner.”[16]
In answering written questions from Senator Specter regarding obscene speech, Ms. Kagan stated:
“The Constitution has never been held to confer a right to engage in obscene speech. To the contrary, the Court long has considered obscenity a category of ‘low value’ speech that is unprotected by the First Amendment . . . . I fully accept this longstanding body of law[.]”[16]
Ms. Kagan has authored several publications regarding First Amendment speech issues. [For example, see Elena Kagan, “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine,” 63 U. Chi. L. Rev. 413 (1996).] Two publications explored and advocated “alternative means of regulating some pornography and hate speech, or of alleviating the harms that such speech causes.” [Elena Kagan, “Regulation of Hate Speech and Pornography After R.A.V,” 60 U. Chi. L. Rev. 873 (1993).] Specifically, she endorsed limitations “directed at conduct, rather than speech. They will be efforts using viewpoint-neutral classifications. They will be efforts taking advantage of the long-established unprotected category of obscenity. Such efforts will not eradicate all pornography or all hate speech from our society, but they can achieve much worth achieving.”[17]
Second Amendment
During her Solicitor General nomination proceedings, Ms. Kagan provided answers to Senator Chuck Grassley regarding her view of District of Columbia v. Heller, 128 S.Ct. 2783 (2008):
“The Supreme Court held in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), that the Second Amendment guarantees an individual right to keep and bear arms. The Court granted this right the same status as other individual rights guaranteed by the Constitution, such as those protected in the First Amendment . . . . I understand the Solicitor General’s obligations to include deep respect for Supreme Court precedents like Heller and for the principle of stare decisis generally. There is no question, after Heller, that the Second Amendment guarantees Americans “the individual right to possess and carry weapons in case of confrontation.”[16]
Fourteenth Amendment
In answer to a question from Senator Specter, Ms. Kagan stated that she “view[s] as unjust the exclusion of individuals from basic economic, civic, and political opportunities of our society on the basis of race, nationality, sex, religion, and sexual orientation.”[16]
Ms. Kagan answered several written questions from Senator Grassley regarding the Supreme Court’s abortion doctrine:
“Under prevailing law, the Due Process Clause of the Fourteenth Amendment protects a woman’s right to terminate a pregnancy, subject to various permissible forms of state regulation. See Planned Parenthood v. Casey, 505 U.S. 833 (1992).”
“Under prevailing law, the U.S. Constitution does not compel taxpayer funding of abortion. The Court said in Harris v. McRae, 448 U.S. 297, 316 (1980), that ‘it simply does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.’ As Solicitor General, I would owe respect to this law, as I would to general principles of stare decisis.”
“Under prevailing law, a particular informed-consent or parental involvement law will meet constitutional standards if it does not impose an “undue burden” on a woman’s right to terminate a pregnancy. Planned Parenthood v. Casey, 505 U.S. 833 (1992), upheld informed-consent and parental-consent provisions under this standard. As Solicitor General, I would owe respect to this law, as I would to general principles of stare decisis.”[16]
Kagan also responded to a question from Senator Specter regarding whether a constitutional right to abortion funding existed, saying, “…on the assumption that Justice Ginsburg once advocated a constitutional right to funding for abortion, that position has been decisively rejected.”[16]
Ms. Kagan discussed the intersection of morality and legislation in answering a question from Senator Sessions, saying, “Many laws are grounded in moral and ethical principles and that those principles can provide a rational basis to support such laws.”[16]
In answering a question from Senator Cornyn, Ms. Kagan stated “[t]here is no federal constitutional right to same-sex marriage.”[16]
In answering a question from Senator Specter, Ms. Kagan also addressed the constitutional aspects of government welfare programs: “The Constitution has never been held to confer a right to a minimum level of welfare . . . .This determination comported with this nation’s traditional understanding that the Constitution generally imposes limitations on government rather than establishes affirmative rights and thus has what might be thought of as a libertarian slant. I fully accept this traditional understanding[.]”[16]
Guantanamo detainees
On November 14, 2005, Ms. Kagan signed a letter urging the Senate to remove an amendment that purported to strip federal courts of jurisdiction to hear habeas claims from detainees held at Guantanamo Bay.[18] Among other things, the letter stated, “[w]hen dictatorships have passed laws stripping their courts of power to review executive detention or punishment of prisoners, our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government.” [Id.]
Separation of Powers
In response to questions from Senator Specter regarding how she would consider executive actions, such as those relating to the Foreign Intelligence Surveillance Act, Ms. Kagan quoted Justice Jackson’s three-pronged concurrence from Youngstown Sheet & Tube Co. v. Sawyer[, 343 U.S. 579 (1952).] Regarding the third situation—when the President acts against the will of Congress—Ms. Kagan noted that “on some occasions, as Justice Jackson recognizes, Congress is indeed ‘disabl[ed]’ from acting upon a subject. But these occasions are rare and cannot be created or justified merely by a general invocation of the commander-in-chief power.”[16]
In 2001, Ms. Kagan wrote an article that largely praised “the presidentialization of administration—the emergence of enhanced methods of presidential control over the regulatory state.” In her article, she stated that, “within broad but certain limits,” such an approach “both satisfies legal requirements and promotes the values of administrative accountability and effectiveness.”[19]
Statutory interpretation
In response to written confirmation questions from Senator Specter regarding her approach to statutory interpretation, Ms. Kagan stated:
“By far the best way of determining Congressional intent in cases of statutory interpretation is to look at what Congress intended – not what either the President or foreign law says about the language in dispute. There may be exceptional occasions when non-Congressional sources can provide clues to meaning – for example, when Congress itself has indicated that it is looking to foreign law or when a Presidential signing statement makes note of a particular piece of legislative history. In general, however, such sources have far less weight than the actual language of the statutory provision in question and the legislative history (if any) surrounding it.”[16]
At least some members of the Court find foreign law relevant in at least some contexts. When this is the case, I think the Solicitor General’s office should offer reasonable foreign law arguments to attract these Justices’ support for the positions that the office is taking. Even the Justices most sympathetic to the use of foreign law would agree that the degree of its relevance depends on the constitutional provision at issue.”[16]
Agency deference
Ms. Kagan is the co-author of a publication that recommends adjusting the scrutiny of judicial review of agency action to encourage the agency to shape its policymaking processes.[20]
Judicial confirmations
In 1995, as part of a book review, Ms. Kagan discussed the difficulties in moving nominees through the confirmation process. As part of that review, she stated: “When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.”[21]
O.K., I admit it, I guess I am biased here…….Elena AND Jewish………………
Interestingly enough, if Ms. Kegan is confirmed it will be the first time the Supreme Court does not have a single Protestant member. With Ms. Kegan on the bench, the Supreme Court will have 6 Catholic members and 3 Jewish members.
I’m not trying to start a religious discussion here. I’m just pointing it out as an interesting factoid given that of the 109 Supreme Court justices ever, only 20 have ever been anything other than Protestant. (12 Catholics, 7 Jews, 1 with no religion.)
FA, we discussed the same at lunch. Very interesting. We’re really having trouble getting a feel for her because she seems to veer into the right a lot. Her statement on the 2A for example; classic. With as many 2A cases going up she might be a good justice to help the current majority.
It’ll be interesting to see how she plays out. I can’t really see anything ‘wrong’ with her. And, her SG nomination went fairly smoothly so I think she’s pretty much a shoe in.
Interesting that it appears to be the Left which is most dissatisfied with this nomination.
Hopefully any justice will apply the rule of law and not kowtow to threats from his or her church. The various bishops have threatened to deny communion to congressmen and senators who didn’t vote according to church teachings. Churches need to not meddle in affairs of state.
Translation: knowing she is jewish makes me feel safer.
Wolverine, which part of the left is dissatisfied? The robo-emails I have gotten have been fairly neutral and just insist that she get fair hearings.
Her position on diversity in the workplace, her statements on same-sex marriage or her position on late-term abortions?
She’s no (big) fan of the left. As a friend told me – she’s socially liberal on the hot topics but neo-con on civil liberties. She’s fairly centrist if you look at what’s available of her record which makes the left nervous because she could easily be swayed by Roberts and Scalia.
She makes me FAR less nervous than other candidates but I still want to see what she has to say during her hearing.
So, I guess you could say if a person (me) who is sometimes to the right of Cuccinelli feels ‘comfy’ with Kagan.. Should that not tell you something? 😉
@Marin, it would scare me if you were comfortable with her. I have heard she is centrist.
And she may be gay! That apparently is the big story here.
Rick, why do you care about her sexual orientation? It’s a non-issue if she is or is not. And, even if she were wouldn’t that make her a very self loathing person with her comment, “[t]here is no federal constitutional right to same-sex marriage.”
That she is or isn’t is none of my concern or business. That she is or isn’t the right person to sit on the court based on the ideal that justice is equal to all and that the Constitution as written is the law of our land IS my business.
I don’t care except in that the furor from the right will be funnier to watch than usual. And the question of what is gay and how can we tell will probably be funny to watch also.
And no it wouldn’t make her self-loathing. Marriage is reserved to the states.
I don’t know that I should even bother forming an opinion on whether she’s qualified or not. Expect potshots and half the GOP very upset about this, and then she gets successfully confirmed, and then she’s there for life. I don’t have the delusion that I really get a voice in any of it. She’d have to ahve said things even dumber than Stoutemire (sic) not to be confirmed.
Isn’t the right concerned she has no experience as a judge………….oh no, how are they going to reconcile that with their support for Chief Justice Renquist.
I have no issue with her not holding the title Judge. The Constitution does not require it.
Rehnquist who it should not be forgotten harassed black voters in the 60’s … and then lied about it.
Moon, I am not in the “Left” so I cannot provide details. However, just about every MSM article or column I have read on this nomination mentions that the “Left” appeared to be hoping for a nominee more clearly in empathy with their ideological positions and was a bit nervous about some of her past “pragmatic” opinions. Can’t provide chapter and verse about this, but the view appears often enough to say that “where there is smoke….” However, this will probably change if the Republicans decide to have a go at her in the hearings. In fact, I would say that opposition by Rush Limbaugh guarantees it out of pure reflex.
Wolverine, I think what you had been looking at was posted on Newsweek and HuffPost.
http://www.huffingtonpost.com/2010/04/09/elena-kagan-emerging-as-s_n_532319.html which is linked by the Newsweek article at http://www.newsweek.com/id/237760.
Greenwald wrote (Salon), “replacing Stevens with Kagan… would shift the Court substantially to the Right on a litany of key issues (at least as much as the shift accomplished by George Bush’s selection of the right-wing ideologue Sam Alito to replace the more moderate Sandra Day O’Connor).”
I won’t say that she’s a favorite of the TEA party but she does have a lot of support from neo-cons and republicans.
http://www.nytimes.com/2009/05/17/us/17kagan.html discusses how she’s too centrist and the hope from the left was that he would nominate a progressive.
Does she have a lot of things that irk or concern me? Yes. Do I think the pick could’ve been MUCH, MUCH worse? Oh yah. So, if I had to settle between her and a ‘social justice’ nomination — I’ll choose the lesser of two evils. 🙂
Kagan will be a Justice barring any radical mishap at the hearing.
Sandra Day OConnor was always one of my favorites!
MH, can you get #17 out of moderation. Has links to stories about her centrist positions and how many on the left fear that she’ll give the conservative majority an extra vote. I think if you see that comment you’ll start to understand – maybe – the fear you might have of her given that a number of persons on the right flank aren’t seeing her as a shot across the bow.
Would I love a Roberts Jr. or another Scalia? YUP! But, given where Obama could’ve gone with this nomination.. I dare say I am ‘pleased’.
I have to point out that during her tenure as dean of Harvard Law School, she attempted to keep the military recruiters off-campus due to their supposed discrimination against gays. However, the “Don’t Ask, Don’t Tell’ policy came from Congress, not from the military. Her actions therefore have to be viewed as pandering rather than as any sort of noble protest, since the military was simply carrying out the law.
I see her as a center left jurist. She’s had extreme positions in the past. I’m not going to get excited about her. The President could have picked a worse one, and if this candidate doesn’t make it through, just might……
Her actions actually have to be seen as following the Harvard rules about recruiting. Harvard does not invite recruiters who discriminate. Since the military doesn’t allow gays and lesbians, they had to come in a different capacity.
It doesn’t matter where the ‘don’t ask, don’t tell’ came from. The military isn’t open to everyone.
It sounds to me like she was following the rules of her institution rather than pandering of any sort. The military was not kept off campus.
“Sandra Day OConnor was always one of my favorites!”
Election night, 2000. When Gore is announced the winner, she tells other party guests sitting with her and her husband “Oh, this is terrible”, announces that she has a headache and needs to go home. Subsequently, rather than recusing herself, she casts the deciding vote in Bush vs. Gore, a travesty decision and a shameful moment in American politics.
She’s a political hack like the rest of them.
I heard that. Not sure I digested it. But, I did like her. Maybe I should make that past tense.
That Duke debacle made some life-altering changes in people’s lives. I instinctively dislike singling out athletic teams as the proving ground. How about 4th floor Ames …surely there is one somewhere. Often athletic teams are more disciplined than other subgroups.
Kagan’s actions may have been in accordance with Harvard’s rules, but they violated Federal law which requires any college or university that accepts Federal money (and Harvard most definitely does) must allow access to military recruiters.
While many Harvard grads may think otherwise, Harvard rules don’t trump Federal law.
Harvard challenged the law on 1st Amendment grounds and it eventually went to the Supreme Court, where they rejected Harvard’s argument in a very close 9-0 ruling.
I’m not saying this should disqualify her or even if it should be a factor, but to say Kagan was just upholding Harvard’s rules is pretty thin cover.
Supposedly Kagan simply upheld the ban which began in 1979 under her predecessor Robert Clark. According to CampusProgress.org:
For clarity, Rumsfeld v. FAIR was decided as 8-0 not 9-0. Alito did not participate as Justice O’Conner had heard the case but retired.
While it was an ‘interesting’ interpretation of the Soloman Amendment you had to know the SCOTUS was going to kill it (Hardvard’s arguement) if nothing else to stay consistent with United States v. Virginia (1996) [that was where VMI was told to pound sand if they didn’t admit women].
What’s funny is that the case actually strengthened Congressional powers by making it clear that Congress could simply MANDATE rather than using the spending clause to ‘ask’ for permission to have the recruiters on campus under Congress constitutional ability to raise an army.
Personally, I think that while it explored a novel question that the case had EPIC FAIL written all over it.
Now that all college loans will be made by the federales…………….can you see where this may go?