Elena Kagen: Obama’s Supreme Court Justice Nominee

THE HEADLINES….

The President, Vice  President, and Elena Kagan

White House Photo, Lawrence Jackson, 5/10/1
  • Speeches and writings show fuller picture of Kagan: Not so long ago, Supreme Court nominee Elena Kagan opined the law sometimes allows things that are “just plain dumb.” She once compared herself to Oprah Winfrey giving away swag on TV. And she routinely told students at one of the nation’s most competitive law schools they should just relax and have fun. From reams of files from Kagan’s past, glimmers of the would-be Supreme Court justice’s personality and style are emerging to help paint a fuller portrait for senators weighing her confirmation. The documents provide glimpses of Kagan’s sense of humor, her view of the importance and limits of the law, her take on the role of the Supreme Court in American life, and the major issues and sometimes-mundane tasks she handled during a career in legal circles, academia and a Democratic White House…. – AP, 5-20-10
  • Senators Want Kagan Documents: Washington….Moving toward a quick confirmation hearing, the Senate Judiciary Committee on Wednesday asked the Clinton presidential library to turn over volumes of documents, correspondence , emails and other memos related to Elena Kagan during her time as a top presidential assistant in the 1990s…. – LAT, 5-19-10
  • Senate panel will begin Kagan confirmation hearings on June 28: Kagan hearings will begin June 28 The Senate Judiciary Committee will begin confirmation hearings June 28 for Supreme Court nominee Elena Kagan, the panel’s chairman announced Wednesday. Sen. Patrick J. Leahy (D-Vt.) said the schedule should allow the hearings to be completed before senators go home in early July for a week-long break…. – WaPo, 5-19-10
  • FACT CHECK: Kagan is no ivory-tower peacenik: Elena Kagan is no ivory-tower peacenik. Judging by her own words, the Supreme Court nominee held the armed forces in high regard during her tenure as Harvard Law School dean. She had one beef with the institution, a big one: its “repugnant” prohibition on openly gay service members. Republicans are using that to portray her as an anti-military activist and to accuse her — groundlessly — of acting outside the law in restricting military recruiters on campus. If anything, the record shows Kagan defended Harvard’s conditions for on-campus military recruitment with less than a full-throated roar… – AP, 5-18-10
  • Kagan’s skills well-suited to Senate hearings: Standing before the nine Supreme Court justices, Elena Kagan is forceful, quick on her feet, admits error when necessary, then goes right back at the questioner — blunt yet polite. Her style as solicitor general is likely to serve her in confirmation hearings, but only to an extent, legal and political analysts say. Kagan has exhibited the dexterity necessary to respond to tough questions in a public forum, but a Senate Judiciary Committee hearing is a more politically charged setting than the high court. “She can’t just show that she’s a super-duper lawyer for the president,” says Ken Duberstein, a chief of staff to President Reagan who handled several Supreme Court nominations. “She has to tell a life story and convey a temperament that shows she’ll be fair and impartial.”… – USA Today, 5-17-10
  • Senator says Kagan broke law at Harvard: While Senate Republicans acknowledge that they are unlikely to derail Solicitor General Elena Kagan’s nomination to the Supreme Court, that hasn’t stopped them from testing potential lines of attack against her. Sen. Jeff Sessions (Ala.), the ranking Republican on the Judiciary Committee, accused Kagan of violating the law when she was dean of Harvard Law School between 2003 and 2008. During her tenure, she continued the school’s restrictions on campus military recruitment because of the armed forces’ “don’t ask, don’t tell” policy that bans openly gay people from serving. Sessions blasted Kagan on ABC’s “This Week” for enforcing the recruitment restrictions during a time of war, which he called “no little-bitty matter.”… – WaPo, 5-17-10
  • Personal ties bind Obama, Kagan President joins ranks of picking friend for court: If Elena Kagan is confirmed as the next Supreme Court justice, President Obama will have something that has become increasingly rare for presidents: a personal friend on the court. Indeed, when Obama introduced Kagan at the White House as his court nominee, it sounded almost as if he were talking about himself: a former Chicago law professor, Harvard graduate, and White Sox fan who eschewed the lucrative world of corporate law to focus on academia and public service. Obama brought her into his administration by nominating her to be solicitor general and now, after slightly more than a year in that job, he wants to elevate her to the Supreme Court. Boston Globe, 5-16-10
  • Pragmatism over partisanship? Kagan described as favoring a consensus-building, analytical style over a passion for her own ideas: Just after Election Day the fall of her senior year at Princeton, Elena Kagan published an opinion piece in the campus newspaper recounting how she had wept and gotten drunk on vodka at a campaign gathering for a liberal Brooklyn congresswoman who had unexpectedly lost a race for the Senate. Ronald Reagan was heading to the White House, and Rep. Elizabeth Holtzman — a champion for women’s causes for whom Ms. Kagan had toiled 14-hour days as a campaign press assistant — was leaving Capitol Hill. Ms. Kagan, then 20 and imbued with the liberal principles on which she had been raised, said she was flirting with despair that “there was no longer any place for the ideals we held. … I wonder how all this could possibly have happened and where on earth I’ll be able to get a job next year.”… – WaPo, 5-16-10
  • ‘General Kagan’ no newcomer to high court: Six times in the past nine months, Solicitor General Elena Kagan has come to the mahogany lectern in the hushed reverence of the Supreme Court to argue the government’s case before the justices she now hopes to join soon…. – AP, 5-15-10
  • Kagan’s Link to Marshall Cuts 2 Ways: In the spring of 1988, Justice Thurgood Marshall assigned a clerk, Elena Kagan, to write a first draft of his opinion in a case considering whether a school district could charge a poor family for busing a child to the nearest school, which was 16 miles away….
    Because Ms. Kagan has never been a judge and has produced only a handful of scholarly writings, clues to her philosophy are rare. In that vacuum, liberals and conservatives alike are attributing special significance to her clerkship year with Justice Marshall, who led the civil rights movement’s legal efforts to dismantle segregation before becoming a particularly liberal Supreme Court justice.
    But while Ms. Kagan, a former board member for the Thurgood Marshall Scholarship Fund, clearly relished the experience and admired the justice as a historic figure, she appears to have had a far more ambivalent attitude toward his jurisprudence, according to a review of his papers at the Library of Congress, her comments over the years about him and interviews with her fellow clerks and colleagues…. – NYT, 5-13-10
  • As Clinton Aide, Kagan Recommended Tactical Support for an Abortion Ban: Elena Kagan, President Obama’s nominee to the Supreme Court, once recommended to President Bill Clinton that he support a Democratic-sponsored ban on some late-term abortions as a way to defeat a stronger measure gaining momentum in the Senate.
    As a White House domestic policy aide, Ms. Kagan sent Mr. Clinton a memorandum urging him to endorse the ban sponsored by Senator Tom Daschle, Democrat of South Dakota. The memo anticipated that the Daschle plan would fail but suggested that it would provide political cover for enough senators to stick by the president when he ultimately vetoed the tougher bill sponsored by Republicans.
    “We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto,” Ms. Kagan and her boss, Bruce Reed, said in the memo on May 13, 1997…. – NYT, 5-12-10
  • Kagan fits Obama’s vision for the Supreme Court: With his second Supreme Court nomination in as many years, President Barack Obama has laid down clear markers of his vision for the court, one that could prove to be among his most enduring legacies….
    Kagan, 50, the solicitor general named to replace outgoing liberal Justice John Paul Stevens, would not immediately alter the ideological balance of the bench. But her addition would almost certainly provide a lasting, liberal presence, and administration officials hope she would, in the words of one, “start to move the court into a different posture and profile.”….
    Rep. Lamar Smith of San Antonio, the ranking Republican on the House Judiciary Committee, said Kagan will have to show “that she was not chosen by the president as a political ally who will rubber-stamp his agenda — but as an impartial jurist who will uphold the Constitution’s limits on the proper role of the federal government and defend the liberties of everyday Americans.”…. – WaPo, 5-10-10
  • Obama Is Said to Select Kagan as Justice: President Obama will nominate Solicitor General Elena Kagan as the nation’s 112th justice, choosing his own chief advocate before the Supreme Court to join it in ruling on cases critical to his view of the country’s future, Democrats close to the White House said Sunday. After a monthlong search, Mr. Obama informed Ms. Kagan and his advisers on Sunday of his choice to succeed the retiring Justice John Paul Stevens. He plans to announce the nomination at 10 a.m. Monday in the East Room of the White House with Ms. Kagan by his side, said the Democrats, who insisted on anonymity to discuss the decision before it was formally made public…. – NYT, 5-10-10

POLITICAL QUOTES

  • Meet Elena Kagan – WH, 5-11-10
  • Nominating Kagan: “Her Passion for the Law is Anything But Academic”: For nearly 35 years, Justice Stevens has stood as an impartial guardian of the law, faithfully applying the core values of our founding to the cases and controversies of our time.
    He has done so with restraint and respect for precedent — understanding that a judge’s job is to interpret, not make law — but also with fidelity to the constitutional ideal of equal justice for all. He’s brought to each case not just mastery of the letter of the law, but a keen understanding of its impact on people’s lives.
    Elena is widely regarded as one of the nation’s foremost legal minds. She’s an acclaimed legal scholar with a rich understanding of constitutional law. She is a former White House aide with a lifelong commitment to public service and a firm grasp of the nexus and boundaries between our three branches of government. She is a trailblazing leader — the first woman to serve as Dean of Harvard Law School — and one of the most successful and beloved deans in its history. And she is a superb Solicitor General, our nation’s chief lawyer representing the American people’s interests before the Supreme Court, the first woman in that position as well. And she has won accolades from observers across the ideological spectrum for her well-reasoned arguments and commanding presence.
    But Elena is respected and admired not just for her intellect and record of achievement, but also for her temperament — her openness to a broad array of viewpoints; her habit, to borrow a phrase from Justice Stevens, “of understanding before disagreeing”; her fair-mindedness and skill as a consensus-builder.
    These traits were particularly evident during her tenure as dean. At a time when many believed that the Harvard faculty had gotten a little one-sided in its viewpoint, she sought to recruit prominent conservative scholars and spur a healthy debate on campus. And she encouraged students from all backgrounds to respectfully exchange ideas and seek common ground — because she believes, as I do, that exposure to a broad array of perspectives is the foundation not just for a sound legal education, but of a successful life in the law.
    This appreciation for diverse views may also come in handy as a die-hard Mets fan serving alongside her new colleague-to-be, Yankees fan Justice Sotomayor, who I believe has ordered a pinstriped robe for the occasion. (Laughter.)
    But while Elena had a brilliant career in academia, her passion for the law is anything but academic. She has often referred to Supreme Court Justice Thurgood Marshall, for whom she clerked, as her hero. I understand that he reciprocated by calling her “Shorty.” (Laughter.) Nonetheless, she credits him with reminding her that, as she put it, “behind law there are stories — stories of people’s lives as shaped by the law, stories of people’s lives as might be changed by the law…”
    That understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people, has animated every step of Elena’s career — including her service as Solicitor General today.
    During her time in this office, she’s repeatedly defended the rights of shareholders and ordinary citizens against unscrupulous corporations. Last year, in the Citizens United case, she defended bipartisan campaign finance reform against special interests seeking to spend unlimited money to influence our elections. Despite long odds of success, with most legal analysts believing the government was unlikely to prevail in this case, Elena still chose it as her very first case to argue before the Court.
    I think that says a great deal not just about Elena’s tenacity, but about her commitment to serving the American people. I think it says a great deal about her commitment to protect our fundamental rights, because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens. – WH, 5-10-10

HISTORIANS & ANALYSTS’ COMMENTS

  • Gil Troy: Globe and Mail: A Careerist Conundrum of Supreme Proportions Did Elena Kagan somehow lose her voice and soul while climbing her way to the top?: For New Yorkers born in the 1960s, U.S. President Barack Obama’s nomination of Elena Kagan to the Supreme Court triggered the frissons of pride and envy many of us feel when someone our age and from our humble background makes it. But Ms. Kagan’s careerist conundrum is particularly fascinating. Did this woman with the perfect Princeton- Oxford-Harvard résumé somehow lose her voice and her soul while climbing professionally as deliberately as she did? To be fair, to young New Yorkers in the 1970s, the notion of a woman sitting on the Supreme Court was downright revolutionary. Ms. Kagan’s nomination is the ultimate Free to Be … You and Me moment…
    Still, we do not know how Ms. Kagan will act. She may prove to have been a phony phoenix, emerging, after years of hiding it, as a full-throated ideologue. Alternatively, decades of calculated accommodating might keep her building bridges as she did when she was dean of Harvard Law School.
    Regardless, as a professor and a parent, I wonder: Do I advise my students and my children that they are “free to be you and me?” Or, to go as far as some want to go, must they squelch their voices, round their edges, and be the corporate careerists that excessive media scrutiny in a polarizing political culture demands they be? – The Globe & Mail, 5-17-10
  • Julian Zelizer: Senate should accept Kagan’s ’95 ‘challenge’: In 1995, Elena Kagan published a lengthy book review in the University of Chicago Law Review, titled “Confirmation Messes, Old and New,” in which she was critical of the confirmation process for Supreme Court nominees.
    While she challenged the author Stephen Carter’s argument that the confirmations had become nasty and destructive, she instead complained that the hearings tended to avoid substantive issues.
    Kagan argues that in response to the contentious debate over Robert Bork in 1987, senators refrained from dealing with real issues. Rather than offering a serious examination of how a nominee viewed constitutional issues, the hearings instead provided a “vapid and hollow charade” devoid of substance.
    She urged a return to the kind of debate that surrounded Bork, which she said “presented to the public a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominees.”
    Based on the initial media and political response to her nomination, it seems that Kagan was spot on. During the first week since President Obama announced his selection, public discussion has revolved around irrelevant issues that won’t teach us much about Kagan….
    Maybe after reading Kagan’s record, the Senate can elevate rather than denigrate the public discourse and demonstrate how Congress can fulfill its functions. – CNN, 5-17-10

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