Elena Kagan Confirmation Hearing Sets Stage for Political Showdown

Richard L. Hasen of Loyola Law School in Los Angeles says, "I don't think we can draw conclusions based on oral arguments or academic writings. At oral arguments she was representing a client, as to the academic articles, the relevant ones are in some cases, years old."

"It seems to me though that she is likely to face questions about her current views, given that the President has suggested in his comments that she would have sided with the dissenters [in Citizen's United], and that Senator Specter said that Kagan had expressed to him disagreement with the Supreme Court's failure in that case to give sufficient deference to Congress."

Gay Marriage

Opponents of gay marriage point out that Solicitor General Kagan authorized the filing of a Department of Justice Brief that read, the "Administration does not support DOMA as matter of policy, believes it is discriminatory, and supports its repeal" .

In a written questionnaire Kagan submitted to congress when she had been nominated as Solicitor General Kagan responded to the question "Do you believe that there is a federal constitutional right to same-sex marriage?" by saying "there is no federal constitutional right to same-sex marriage." Later in a letter to Senator Arlen Specter Kagan made clear she was referencing the current state of play in the Courts, not her personal perspective on the question.

"We look forward to hearing more from her on that issue," says Michael Cole, press secretary for the Human Rights Campaign.

Gun Control

"We have not taken a position as yet but we have expressed concerns on her positions on gun and self defense issues" says Andrew Arulanandam, director of public affairs at National Rifle Association. Support from the group is unlikely, especially since Kagan refers to the NRA in one 1996 memo as a "bad guy" organization.

As a Supreme Court clerk she expressed skepticism regarding a petitioner's contention that a District of Columbia firearms statute violates the petitioner's constitutional right to "keep and bear arms." Kagan wrote: "I'm not sympathetic."

In 2008 the Supreme Court ruled in District of Columbia v. Heller that the Constitution guarantees an individual's right to possess a firearm. After the ruling, during her confirmation hearing for Solicitor General, Kagan told Congress that the decision is Heller is now "settled law".

The NRA is also troubled by a November 13, 1997 memo Kagan co-authored urging the President to sign a directive suspending existing permits on the importation of Modified Semiautomatic Assault Type Rifles.

In 1999 she wrote a memo to President Clinton in which she said, "We will give you a separate memo early this week outlining an aggressive strategy to press for quick passage of our gun control proposals."

Curt Levy, the Executive Director for the conservative Committee for Justice writes, "When it comes to firearms, Elena Kagan's liberal bias stands out again and again throughout the documents." Says Levy. "It's no wonder that Bill Clinton, the most pro-gun control President in American history, put Kagan in charge of gun policy."

Death Penalty

In March 2009, during her confirmation process to be Solicitor General, Kagan wrote to Senator Arlen Specter, "I am not morally opposed to capital punishment." Specter asked the question because Kagan's former boss, Justice Thurgood Marshall maintained that the death penalty was always unconstitutional.

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