Elena Kagan: 8 Things You Need to Know About Her

WASHINGTON, June 25, 2010— -- In the weeks since Elena Kagan's nomination to the U.S. Supreme Court, hundreds of thousands of documents have been released, providing a more robust picture of the would-be justice as an academic, a lawyer and the first female solicitor general of the United States.

The memos reflect her ambition to dig into some of the country's most divisive social issues and offer analysis or policy recommendations depending upon her job at the time. They also give a glimpse of her personality as she corresponds with colleagues, sometimes with salty language, taking command of the issues, rarely suffering fools gladly.

As her confirmation hearing unfolds over the next few weeks, senators will want to know whether the memos reveal her personal beliefs.

"I do not want to say that there was nothing of me in these memos," she said during her 2009 confirmation hearing for solicitor general, referring to her writings as a clerk for Justice Thurgood Marshall in 1984.

But, she said, "I was a 27-year-old pipsqueak, and I was working for an 80-year-old giant in the law and a person who, let us be frank, had very strong jurisprudential and legal views."

Kagan assured senators in 2009 that she would make decisions as solicitor general based only on the law. Still, Kagan's critics believe she would have a difficult time putting aside her personal beliefs if she assumes a seat on the Supreme Court.

"In her memos to Justice Marshall as well as her work for Clinton, Kagan consistently wrote from her own perspective, prefacing her advice with 'I think' and 'I believe' and distinguishing her opinions from other members of Clinton's White House team or from the president's own opinions," said Carrie Severino of the Conservative Judicial Crisis Network.

"A troubling pattern has already emerged in Ms. Kagan's record," said Sen. Jeff Sessions, R-Ala. "Throughout her career, she has demonstrated a willingness to make legal decisions based not on the law but instead on her very liberal politics."

But Paul Clement, who served as solicitor general during the Bush administration and supports Kagan's nomination, disagrees. He says the documents serve a limited role. They do not necessarily reflect her personal beliefs but the job she was tasked with doing when she wrote the memos.

"The key to me in the documents is trying to discern whether Kagan understood her role and did it well," said Clement.

"What you can see though, is that…in a variety of different roles, I think Elena understood the role that she was discharging and I think she, you know, acquitted herself very well in those different roles… She understands the role that she's been assigned, which I think speaks very well for her," he said.

Here is a sampling of some of the memos and what they say reveal about Kagan and hot-button issues:

The military's "don't ask, don't tell" policy that bans openly gay individuals from serving in the military is one issue where Kagan's views are crystal clear.

As Dean of Harvard Law School she initially objected to the presence of military recruiters at the campus career center because she believed the "don't ask, don't tell" violated the school's anti-discrimination policy.

But later, she explained in an e-mail to faculty and students that she was obliged under federal law to allow the military recruiters on campus or lose government funding. A challenge to the federal law eventually went to the Supreme Court, which ruled unanimously against Kagan's position.

In one October 2003 e-mail to all members of the law school she wrote: "I abhor the military's discriminatory recruitment policy. . . This is a profound wrong."

Senator Sessions expressed concern about Kagan's position. "What were you thinking" he asked, "when you punished our men and women in uniform?"

Documents released by the Department of Defense reflect the military's consternation with Kagan's role on the issue. "Dean Kagan," says one memo written in 2006 by Bill Carr, Principal Deputy Under Secretary of Defense for Personnel and Readiness, "has reportedly encouraged students to demonstrate against the presence of recruiters."

But in 2007 Kagan addressed the controversy in a passionate speech at West Point: "I have been grieved in recent years to find your world and mine, the U.S. military and U.S. law schools, at odds, indeed, facing each other in court — on one issue. That issue is the military's 'don't ask, don't tell' policy… But I would regret very much if anyone thought that the disagreement between American law schools and the US military extended beyond this single issue. It does not."