Research Briefing

As Elena Kagan’s Confirmation Hearings Get Underway, There Are Several Critical Questions She Must Answer

Please tune-in this Monday, June 28th for live response to Kagan hearings: GOP.com/liveresponse

1. Can You Assure The Public That You Know The Difference Between Serving As A Political Advisor And Making Decisions As A Judge?

Kagan Wrote That Judges Who “Mold And Steer The Law…To Promote Certain Ethical Values And Achieve Certain Social Ends…Is Not Necessarily Wrong.” “As men and as participants in American life, judges will have goals. And because this is so, judges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends. Such activity is not necessarily wrong or invalid. The law, after all, is a human instrument – an instrument designed to meet men’s needs….Concern for ethical values has an important role to play in the judicial process. For in the last analysis, the law is a very human enterprise with very human goals.” (Elena Kagan, “The Development And Erosion Of The American Exclusionary Rule: A Study In Judicial Method,” Oxford University, p.120, 4/20/83)

Kagan Has Written That Interpretation Of The Constitution “Necessarily + Inevitably” Involves “Political + Policy Questions.” “Kagan had been recently made the Harvard law dean when she spoke to a group of Princeton alumni in 2003 about judicial review, the courts' power to review the actions of the other branches of government. In handwritten notes that were among the thousands of pages of documents Kagan provided the Senate Judiciary Committee, she said judicial review ‘should be exercised w/ caution’ because it involves overturning the actions of popularly elected officials. Interpreting the Constitution is not mechanical, she said. If it were, it ‘wouldn't be issue,’ Kagan wrote in abbreviated notes. Interpretation, Kagan said, ‘necessarily + inevitably’ involves ‘political + policy questions.’” (Mark Sherman, “Kagan’s Writings Suggest Her View On Judge’s Role,” The Associated Press, 5/23/10)

As Supreme Court Clerk, Kagan Advised Justice Thurgood Marshall To “Vote For So-Called Defensive Denials,” To “Prevent His More Conservative Colleagues From Giving More Power To Police And Prosecutors.” “Kagan on numerous occasions urged the justice to vote for so-called defensive denials, rejecting appeals from criminal suspects and defendants to prevent his more conservative colleagues from giving more power to police and prosecutors.” (Greg Stohr and Kristin Jensen, “Kagan Said She Was `Not Sympathetic' Toward Gun-Rights Claim,” Bloomberg, 5/13/10)

2. Based On Your Past History, Should The American Public Be Concerned That Your Role On The Bench Will Be To Protect President Obama’s Policy Agenda?

Since Obama Fears The Supreme Court Will Challenge His “Ambitious Agenda Expanding The Reach Of Government” He Has Put Forth A Nominee Who Will Help Protect His Agenda. “As he presses an ambitious agenda expanding the reach of government, Mr. Obama has come to worry that a conservative Supreme Court could become an obstacle down the road, aides said. It is conceivable that the Roberts court could eventually hear challenges to aspects of Mr. Obama’s health care program or to other policies like restrictions on carbon emissions and counterterrorism practices.” (Peter Baker & Jeff Zeleny, “Obama to Nominate Kagan as Justice,” The New York Times, 5/9/10)

Kagan Has Argued For Expanded Presidential Power As “A Mechanism To Achieve Progressive Goals.” “As a matter of policy, moreover, Kagan writes that she sees presidential supervision of federal agencies ‘as a mechanism to achieve progressive goals’ in areas such as environmental protection. She believes that presidential supervision can ‘jolt into action bureaucrats suffering from bureaucratic inertia in the face of unmet needs and challenges.’ She believes that it is important to render the bureaucratic sphere ‘more transparent and responsive to the public, while also better promoting important kinds of regulatory competence and dynamism.’ This is a view of presidential power that traces its lineage to Theodore Roosevelt and FDR.” (Walter Dellinger, “Executive Power,” Slate.com, 4/16/10)

In Kagan, Obama Sees “A Forceful, Effective Counterweight To Chief Justice John Roberts And Justice Antonin Scalia.” “White House aides also have signaled that Obama believes Kagan could provide a forceful, effective counterweight to Chief Justice John Roberts and Justice Antonin Scalia, and perhaps even be the bridge to bring Justice Anthony Kennedy onto the liberal side in narrow 5-4 decisions.” (Josh Gerstein, “Elena Kagan Strategy: Avoid A Big GOP Fight,” Politico, 5/10/10)

3. Are You Going To Follow Your Own Advice And Answer Questions Directly, Avoiding “Platitudinous” Statements And Political Spin, So This Hearing Takes On More Than “An Air Of Vacuity And Farce”?

Kagan Has Stated That A Supreme Court Nomination Hearing Must Focus “On A Nominee’s Legal Views.” “The recent hearings on Supreme Court nominees, though, suggest another question: might we now have a distinct and more troubling confirmation mess? If recent hearings lacked acrimony, they also lacked seriousness and substance. The problem was the opposite of what Carter describes: not that the Senate focused too much on a nominee's legal views, but that it did so far too little.” (Elena Kagan, “Confirmation Messes, Old And New,” 62 University of Chicago Law Review 919 (1995))

Kagan Has Stated That The Senate Must Engage A Nominee “In Meaningful Discussion Of Legal Issues,” If Not, “Process Takes On An Air Of Vacuity And Farce…” “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. Whatever imperfections may have attended the Bork hearings pale in comparison with these recent failures. Out, then, with the new mess and in with the old!” (Elena Kagan, “Confirmation Messes, Old And New,” 62 University of Chicago Law Review 919 (1995))

Kagan Argues That Without Senate Pressure Nominees Aren’t Compelled To Disclose “Their Views On Legal Issues” Since “The Safest And Surest Route To The Prize Lay In Alternating Platitudinous Statement And Judicious Silence.” “Neither do I mean to deride Justices Ginsburg and Breyer for the approach each took to testifying. I am sure each believed (along with Carter) that disclosing his or her views on legal issues threatened the independence of the judiciary…More, I am sure both judges knew that they were playing the game in full accordance with a set of rules that others had established before them. If most prior nominees have avoided disclosing their views on legal issues, it is hard to fault Justice Ginsburg or Justice Breyer for declining to proffer this information. And finally, I suspect that both appreciated that, for them (as for most), the safest and surest route to the prize lay in alternating platitudinous statement and judicious silence. Who would have done anything different, in the absence of pressure from members of Congress?” (Elena Kagan, “Confirmation Messes, Old And New,” 62 University of Chicago Law Review 919 (1995))

4. Do You Agree With President Obama’s Other Judicial Nominees, Supporting The Progressive Legal View That Judges Should Take Into Account “Evolving Norms And Social Understandings” To Reach Decisions?

Obama Circuit Court Nominee Goodwin Liu Argued That Judges Should Take Into Account “Evolving Norms And Social Understandings” And Be “Broad-Minded In Their View” When Interpreting The Constitution. “[T]he reality is, every judge really knows and every lawyer really knows, is that the job...involves fundamentally, acts of judgment...And how do people come at their judgments?....lessons learned from experience, and an awareness of the evolving norms and social understandings of our country....So I would hope that the Obama administration would appoint judges who are broad-minded in their view of the kinds of sources that are legitimate to take into account in reading, especially the Constitution, but broadly legal texts of all sorts.” (Goodwin Liu, “Prof. Goodwin Liu Interviewed At White Oak,” The Brennan Center For Justice, 05/05/09)

Kagan “Read The 14^th Amendment” Expansively “Reflecting The Liberal View That The Constitutional Guarantee Of Liberty Should Be Read Broadly.” “As a Supreme Court law clerk in 1987, Elena Kagan read the 14th Amendment as permitting lawsuits against reckless state officials who ignore their duties—reflecting the liberal view that the constitutional guarantee of liberty should be read broadly.” (Jess Bravin, “Kagan Backed Broad Interpretation Of 14^th Amendment,” The Wall Street Journal, 5/16/10)

Does Kagan Agree With The Extreme Left View That The Fourteenth Amendment Gives Citizens A Right To Health Care, Tax Credits And Job Training At Taxpayers' Expense? “On my account of the Constitution's citizenship guarantee, federal responsibility logically extends to areas beyond education. Importantly, however, the duty of government cannot be reduced to simply providing the basic necessities of life..... Beyond a minimal safety net, the legislative agenda of equal citizenship should extend to systems of support and opportunity that, like education, provide a foundation for political and economic autonomy and participation. The main pillars of the agenda would include basic employment supports such as expanded health insurance, child care, transportation subsidies, job training, and a robust earned income tax credit.” (Goodwin Liu, “E ducation, Equality, and National Citizenship, 116 Yale Law Journal 409 (2006))

5. You Have Exhibited A Pattern Of Allowing Your Personally Held Beliefs To Guide Your Professional Actions, So What Assurances Can You Give This Will Not Be The Case Once You’re On The Bench?

As Dean Of Harvard Law School, Kagan Praised The University’s Decision To Ban Military Recruiters From Harvard’s Campus Over The Military’s Ban On Openly Gay Service Members. “‘This return to our prior policy will allow [the Office of Career Services] to enforce the law school's policy of nondiscrimination without exception, including to the military services,’ the dean, Elena Kagan, wrote in a brief statement late yesterday. ‘I am gratified by this result, and I look forward to the time when all law students will have the opportunity to pursue any legal career they desire.’” (Jenna Russell, “Harvard Law School Bans Military Recruiters Over Anti-Gay Policies,” The Boston Globe, 12/1/04)

• She Called Clinton-Era Federal Statute Of Don’t Ask, Don’t Tell “A Profound Wrong – A Moral Injustice Of The First Order.” “[Kagan] also wrote an open letter to the campus describing her ‘deep distress’ over the issue, calling the ban on openly gay service members ‘a profound wrong -- a moral injustice of the first order.’” (Marcella Bombardieri, “Pentagon Ordered To Halt Law School Recruiting Tactics,” The Boston Globe, 11/30/04)

As Dean, Kagan Even Encouraged Students To “Forcefully” Protest Against The Military. “Kagan wrote in her message that she hopes “many members of the Harvard Law School community will accept the Court’s invitation to express their views clearly and forcefully regarding the military’s discriminatory employment policy.”” (Paras Bhayani, “HLS To Abide By Court’s Decision,” The Harvard Crimson, 03/08/06)

As Solicitor-General, Kagan Failed To Review The 9^th Circuit’s  Decision Undermining The Military’s Application Of Don’t Ask, Don’t Tell Law. “The Obama administration has decided to accept an appeals-court ruling that could undermine the military's ban on service members found to be gay. A federal appeals court in San Francisco last year ruled that the government must justify the expulsion of a decorated officer solely because she is a lesbian. The court rejected government arguments that the law banning gays in the military should have a blanket application, and that officials shouldn't be required to argue the merits in her individual case.” (Jess Bravin and Laura Meckler, “Obama Avoids Test On Gays In Military,” The Wall Street Journal, 5/19/09)

• Kagan’s Office Allowed The Deadline For Appeal To The Supreme Court To Pass, Which Will Force The Military To Continue Litigating This Issue In The Lower Courts For Years. “The administration let pass a May 3 deadline to appeal to the Supreme Court. That means the case will be returned to the district court, and administration officials said they will continue to defend the law there. The move ‘takes the issue off the front burner,’ as a trial and subsequent appeals could take years before the question returns to the Supreme Court, said an official familiar with the matter.” (Jess Bravin and Laura Meckler, “Obama Avoids Test On Gays In Military,” The Wall Street Journal, 5/19/09)

And In August 2009, Kagan’s Office Filed A Brief In A California Case Challenging The Defense Of Marriage Act, Stating That “This Administration Does Not Support DOMA As A Matter Of Policy, Believes That It Is Discriminatory, And Supports Its Repeal.” (US District Court For The Central District Of California, “Reply Memorandum”, Case No. SACV09-00286 DOC (MLGx), 8/24/09)