WASHINGTON — President Obama has nominated Solicitor General Elena Kagan (left) 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.
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.
In settling on Ms. Kagan, the president chose a well-regarded 50-year-old lawyer who served as a staff member in all three branches of government and was the first woman to be dean of Harvard Law School. If confirmed, she would be the youngest member and the third woman on the current court, but the first justice in nearly four decades without any prior judicial experience.
That lack of time on the bench may both help and hurt her confirmation prospects, allowing critics to question whether she is truly qualified while denying them a lengthy judicial paper trail filled with ammunition for attacks. As solicitor general, Ms. Kagan has represented the government before the Supreme Court for the past year, but her own views are to a large extent a matter of supposition.
Replacing Justice Stevens with Ms. Kagan presumably would not alter the broad ideological balance on the court, but her relative youth means that she could have an influence on the court for decades to come, underscoring the stakes involved.
Ms. Kagan defended her experience during confirmation hearings as solicitor general last year. “I bring up a lifetime of learning and study of the law, and particularly of the constitutional and administrative law issues that form the core of the court’s docket,” she testified. “I think I bring up some of the communications skills that has made me — I’m just going to say it — a famously excellent teacher.”
Ms. Kagan was one of Mr. Obama’s runners-up last year when he nominated Sonia Sotomayor to the court, and she was always considered the front-runner this year.
Ms. Kagan had several advantages from the beginning that made her the most obvious choice. For one, she works for Mr. Obama, who has been impressed with her intelligence and legal capacity, aides said, and she worked for Vice President Joseph R. Biden Jr. when he was a senator. For another, she is the youngest of the four finalists, meaning she would most likely have the longest tenure as a justice. Read more>>>
Kagan’s Notable Statements and Writings
Constitutional Theory
In her testimony during her confirmation for solicitor general, Elena Kagan wrote: “I think a judge should try to the greatest extent possible to separate constitutional interpretation from his or her own values and beliefs. In order to accomplish this result, the judge should look to constitutional text, history, structure and precedent. Relating these views to the position for which I am nominated, I think these kinds of arguments also are most successful in advocacy before the courts in constitutional cases. ... 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, and if I am confirmed as solicitor general, I would expect to make arguments consistent with it.”
Judicial Activism
In Ms. Kagan’s written responses to Senate questions during her confirmation for solicitor general, she disagreed with the view that the courts should take the lead in creating a more just society.
Don’t Ask, Don’t Tell
Ms. Kagan opposes the ban on gays serving openly in the military. As dean of Harvard Law School, she barred military recruiters from using the law school’s Office of Career Services. She reversed her decision after the government threatened to enforce the Solomon Amendment, which allows the federal government to withhold money from universities that do not extend the same welcome to military recruiters as they do to other recruiters. In a message to the school, she wrote, “The importance of the military to our society — and the extraordinary service that members of the military provide to all the rest of us — makes this discrimination more, not less, repugnant.” However, during her confirmation for solicitor general, she wrote that because the Supreme Court has upheld the Solomon Amendment, she would “vigorously” defend it against constitutional challenge.
Defining Combatants
During her confirmation hearing for solicitor general, Ms. Kagan agreed with a questioner that someone suspected of helping to finance Al Qaeda should be subject to battlefield law — indefinite detention without a trial — even if he were captured in a place like the Philippines rather than in a physical battle zone.
Presidential Powers
In a 2001 article in The Harvard Law Review that considered the “unitary executive” theory, Ms. Kagan wrote that such presidential control “expanded dramatically during the Clinton presidency,” a development she largely welcomed. But she said Congress, experts and interest groups should also play a role in informing the executive branch’s actions. “I do not espouse the unitarian position,” Ms. Kagan wrote. “President Clinton’s assertion of directive authority over administration, more than President Reagan’s assertion of a general supervisory authority, raises serious constitutional questions.”
The Death Penalty
In Ms. Kagan’s written responses to Senate questions during her confirmation for solicitor general, said she did not believe that international law prevented federal and state governments from broadening the application of the death penalty.
The Second Amendment
In response to questions about District of Columbia v. Heller, which struck down parts of the District of Columbia’s gun control law and ruled that the Second Amendment protects an individual's right to own guns, Ms. Kagan cited the court’s analogy to the First Amendment, writing that it provided “strong although not unlimited protection.”
Abortion
During her confirmation for solicitor general, Ms. Kagan said she would respect laws and precedent regarding abortion rights.
Financing for Faith-Based Groups
During her confirmation hearings, Ms. Kagan denounced a memo she wrote while serving as a clerk for Justice Thurgood Marshall in 1989. That memo suggested that faith-based groups should not receive money for certain activities. Pregnancy care centers, she thought at the time, would not be able to counsel pregnant teenagers without injecting their religious beliefs. At her hearing, she said presuming a religious organization would use money in an impermissible manner was incorrect.
Same-Sex Marriage
As part of her confirmation for Solicitor General, Ms. Kagan was asked whether she would defend the constitutionality of the Defense of Marriage Act, which said that states need not recognize same-sex marriages performed in other states. Ms. Kagan’s said, as solicitor general, she would defend any acts “if there is any reasonable basis to do so.” She noted this was “a low bar for a statute to climb over.”
Source: The New York Times, May 10, 2010
Elena Kagan picked to replace Justice Stevens
Kagan is the former dean of Harvard Law School, worked in the Clinton administration and was a colleague of Obama's at the University of Chicago law school. He chose her to be the government's top appellate lawyer and representative at the Supreme Court, the first woman to hold the job. Republicans complained during her confirmation for that job about her lack of courtroom experience — her first argument at the Supreme Court last September was her first in any court—and that she refused to answer questions on specific constitutional questions and cases. Conservative legal activists denounced her decision to forbid military recruiters on the law school campus because the ban on military service by gays violated the university's antidiscrimination policies. She was confirmed on a 61-31 vote. Read more>>>
Source: The Washington Post, May 10, 2010
Statements of Elena Kagan on the Death Penalty
“I am fully prepared to argue, consistent with Supreme Court precedents, that the death penalty is constitutional.”
"I can say that nothing about my personal views regarding the death penalty (relating either to policy or law) would make it difficult for me to carry out the Solicitor General’s responsibilities in this area." Elena Kagan, SOLICITOR GENERAL CONFIRMATION HEARING, 2009. Read more here.
Source: Texas Moratorium Network, May 10, 2010