Research

AS SOLICITOR-GENERAL NOMINEE, KAGAN PROMISED “VIGOROUS DEFENSE OF THE STATUTES OF THIS COUNTRY”

At Her Confirmation Hearing, Kagan Stated That Her Most Critical Responsibility As Solicitor-General Was “The Vigorous Defense of The Statutes Of This Country Against Constitutional Attack.” “At the same time, the solicitor general has critical, no less critical responsibilities to Congress. Most notably, the vigorous defense of the statutes of this country against constitutional attack. Traditionally, outside of a very narrow band of cases involving a separation of powers, the solicitor general has defended any federal statute in support of which any reasonable argument can be made.  And I pledge to continue this strong presumption, that the Solicitor General's Office will defend each and every statute enacted by this body.” (Elena Kagan, “Solicitor General Confirmation Hearing,” Senate Judiciary Committee, 2/10/09)

• Kagan Also Stated That She Would Honor “Stare Decisis” And “Be True To The Rule Of Law.” “Regardless, the solicitor general must honor the principle of stare decisis, must exercise care in invoking the court's jurisdiction and, most important of all, must be scrupulously candid in every representation based to the court.  And in this sense, I completely agree with what Senator Specter just said, the most important of all the solicitor general's responsibilities is to be true to the rule of law.” (Elena Kagan, “Solicitor General Confirmation Hearing,” Senate Judiciary Committee, 2/10/09)

AS SOLICITOR-GENERAL, KAGAN REPEATEDLY FAILED TO APPEAL ATTACKS ON FEDERAL STATUTES

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)