Archive for Saturday, June 26, 2010

Elena Kagan’s words offer hints to opinions on major issues

June 26, 2010


— How might a Justice Elena Kagan rule on the leading issues of the day?

Some hints are in her speeches, writings and answers to senators who confirmed her for the job she now holds, solicitor general, the government’s top lawyer.

Kagan makes her case for a spot on the Supreme Court in hearings beginning Monday before the Senate Judiciary Committee. Kagan has never served as a judge, so don’t look for opinions to analyze.

A look at some of the major issues:


Kagan hasn’t spoken publicly on Roe v. Wade, the 1973 Supreme Court decision saying a woman has a constitutional right to an abortion, as a legal or personal matter. But she has worked for two Democratic presidents, Barack Obama and Bill Clinton, and Justice Thurgood Marshall, all of whom held pro-choice views.

During her solicitor general hearings, she wrote, “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.”

While working for Clinton, she recommended he support a compromise ban on most late-term abortions. As a clerk for Marshall, she criticized a lower court ruling requiring Monmouth County, N.J., to pay for inmates’ elective abortions, saying it was “well-intentioned,” but “parts of it are ludicrous.” Kagan said women generally have no right to have their abortions paid for, and “I do not see why prisoners should have such rights.”

Here’s what nominees tell senators: The Constitution provides a right to privacy and I can’t talk about specific cases that may come before the court in the future.

Gay rights

Kagan hasn’t kept her silence on the military’s ban on gays serving openly.

In an e-mail to students while serving as Harvard law school dean, Kagan said that policy was “a profound wrong — a moral injustice of the first order.”

She got involved after an appeals court ruled unconstitutional a law that threatened schools’ federal money if they didn’t allow military recruiters on campus. Kagan enforced Harvard’s policy by banning the military from using the on-campus recruiting office. She also arranged for a student group to bring together recruiters and law students who were interested in the military.

She signed on to an unsuccessful attempt to defend the lower court’s decision when the case reached the Supreme Court. After losing, she told students that the military could return to campus.

But, she said, “I believe the military’s discriminatory employment policy is deeply wrong — both unwise and unjust.”

Kagan also wrote in response to a written question at her solicitor general hearing that there was “no federal constitutional right to same-sex marriage.”

Death penalty

As senators reviewed her nomination to be solicitor general, Kagan said there was nothing about her personal views on the death penalty that would make it difficult for her to carry out the duties of that job.

She later added in a question about the use of foreign law in U.S. courts: “I do not believe that international law (assuming it has not been incorporated into domestic federal law) can prevent federal and state governments from broadening the application of the death penalty should they wish to do so.”

Campaign finance

As solicitor general, Kagan unsuccessfully argued against a Supreme Court decision upholding the First Amendment rights of corporations and labor unions to spend money on campaign ads. She’s likely to tell senators that she was bound to represent her client, the government, regardless of her own views.

But when Obama announced Kagan’s nomination, he made sure to point out that she chose that campaign finance case as her first to argue before the high court, indicating that Kagan may agree with the president’s contention that case was wrongly decided.

Specter has said that Kagan has criticized the decision in terms of the principle that the Supreme Court should defer to Congress.

While working for Clinton, she and other White House aides wrote: “It is unfortunately true that almost any meaningful campaign finance reform proposal raises constitutional issues and will provoke legal challenge. This is inevitable in light of the Supreme Court’s view — which we believe to be mistaken in many cases — that money is speech and that attempts to limit the influence of money on our political system therefore raise First Amendment problems.”


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