When Justice John Paul Steven’s announced his retirement, activists on all political fronts were on edge. Progressives and liberals surely saw this as an opportunity for President Obama to nominate someone to their liking, to move the U.S. Supreme Court further left. Conservatives on the other hand braced for a fierce battle against a radical liberal activist. However, President Obama’s nomination of Elena Kagan, who has no judicial experience and few opinions on controversial issues, seems to have both liberals and conservatives worried. We may not know a lot about Kagan, but let me detail much of what we do know.
Personal Life
Elena Kagan was born in New York City on April 28th, 1960. Along with her two brothers, Kagan was raised in the city by her parents. Her mother, Gloria Kagan, taught as a public school teacher and her father, Robert Clark, was a lawyer. Kagan is Jewish and without question very gifted in academics.
Education
In 1981, Kagan obtained a BA in History at Princeton University, where she wrote her thesis on the socialist movement in New York City in the early 20th century. Historian Sean Wilentz said she was not defending socialism, but “she was interested in it.” Kagan later went on to earn a Masters of Philosophy at Worchester College, Oxford University in 1983 and then a Juris Doctor, magna cum lauda from Harvard Law School in 1986.
Early Career
Starting out her legal career in 1987, Kagan worked as a law clerk for President Carter appointee Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit. Then in 1988 she worked for Justice Thurgood Marshall of the Supreme Court of the United States (SCOTUS), a President Johnson appointee. Later on she joined a D.C. law firm, Williams & Connolly, working as a private associate.
In 1991, Kagan worked at the University of Chicago Law School as an assistant professor and became a tenured law professor just 4 years later. It was here where she wrote several publications, which shed some light on her opinions, such as:
- “Regulation of Hate Speech and Pornography After R.A.V”: a legal review on regulating the First Amendment after the SCOTUS case R.A.V. vs. City of St. Paul
- “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine”: a publication on government’s motive in regulating speech
- “Confirmation Messes, Old and New”: a book review of The Confirmation Mess by Stephen Carter which discusses the judicial confirmation process
At 35, Kagan served as the Associate White House Counsel, Deputy Assistant to the President for Domestic Policy, and Deputy Director of the Domestic Policy Council under President Clinton. While working under President Clinton from 1995 – 1999, Kagan co-authored a memo to the President pressing him to support a ban on late term abortions, providing certain exceptions for health-risk reasons were included. She also wrote an article titled “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine”, which argues that the government has the right to restrict First Amendment rights, if it believes the speech to be “harmful” and the restriction is done for good intentions.
Academic Career and Goldman Sachs
After Kagan’s nomination by President Clinton to the U.S. Court of Appeals for the D.C. Circuit expired, she moved on to Harvard Law School. She joined the faculty in 1999 as a visiting professor, where she wrote a law review examining the role of Presidential aides in influencing administration and regulatory law, titled “Presidential Administration”. Kagan eventually became a full professor, and then in 2003 she advanced upwards to become the first female Dean of Harvard’s Law School.
As Dean, Kagan’s focus was on improving morale, which she tackled through new facility construction, changing the first-year curriculum, and adding comforts such as free morning coffee. Kagan also reportedly crossed lines by adding conservative scholars to the faculty, including Jack Goldsmith who served under President George Bush.
As Dean, Kagan supported a policy that expelled military recruiters from campus because of the military’s Don’t Ask, Don’t Tell policy, which prevents gays from serving opening in the military. She claimed the policy was discriminatory against gays and lesbians and that it was a “moral injustice of the first order”, but those comments come to odds with her former boss, President Clinton, who issued the policy in 1993. This has become a major target of Kagan’s critics.
Another target of Kagan’s critics, although less known, is that while serving as Dean, she also served as a member of the Research Advisory Council of Goldman Sachs Global Markets Institute between 2005 and 2008. Reportedly, this panel met yearly to discuss public policy issues and was not involved in investment decisions. In 2008, Kagan received a $10,000 stipend for her service with the investment firm, who is being investigated by the SEC.
Solicitor General
Up to this point, Kagan had not argued a single trial case or argued before the SCOTUS. Despite such a lack of courtroom experience, although not unprecedented (see Robert Bork and Kenneth Star), President Obama appointed to Kagan to Solicitor General in January of 2009. She was confirmed by the Senate in March of 2009 by a vote of 61 to 31. During the confirmation process, Kagan was asked about whether she believed there was a Constitutional right to same-sex marriage. Her answer, “there is no federal constitutional right to same-sex marriage” seemed straight forward, but when asked to clarify, her opinion became very cloudy.
SCOTUS Nomination and My Thoughts
Justice John Paul Stevens announced his retirement on April 9, 2010. A President Ford appointee, Stevens is has frequently sided with the liberal bloc of justices of the SCOTUS, however, he has recently considered himself to be a conservative. Needless to say, the vacancy he leaves is an important one, and President Obama hopes to see Elena Kagan fill it quickly.
Kagan is without question a highly educated woman. Though education is undoubtedly important when sitting on the bench of the highest court in America, it is not the sole factor when considering a nominee. Kagan has several things in her resume that cause me create concern. Here are a few:
- She supported a policy during a time of war that would restrict military recruitment on college campuses, despite the fact that the policy was implemented by her former boss and backed by both the White House and Congress.
- Her opinions on the First Amendment and government regulation of free speech are gravely concerning. Particularly when considering the FCC’s current attempt to circumvent a federal court decision against regulating the internet and President Obama’s recent comments about information being a distraction.
- Her opinions on many controversial issues vague or non-existent, such as the Second Amendment
- The White House is isolating Kagan and her family from the press. Why?
- The fact that she, until recently, has had absolutely no courtroom experience, which is the most compelling reason against her nomination considering the prestigious and influential position she is seeking, in my opinion.
To conclude, I find Elena Kagan to be a top tiered academic in the field of law. However, based on her positions that conflict with liberties the Constitution protects such as the First Amendment, and the indisputable fact that she just does not have the experience for the job, I strongly urge the Senate to vote no on her nomination to the SCOTUS.
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Why would anyone be surprised by what Obama would nominate that wasn't interested in Socialism, or worse
I'd have to agree with that Jenni.
Still not too comforting that she is "interested in" socialism. Three words in Kagan's article startle me…… "First Amendment" and "Restrictions". That's enough to make me sweat if she is voted in.
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