Elena Kagan: 8 Things You Need to Know About Her

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."

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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."

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Abortion

The Center for Reproductive Rights released a report last week questioning Kagan's record on abortion rights.

"Kagan's record documents her agreement with the general proposition that the Constitution affords a right to abortion," the report says, but then adds, "her positions on the specific contours of that substantive right are less discernible. Indeed, some of her writings raise questions about the depth of her consideration of the significance of reproductive rights to women's health, lives and equality."

In 1997, while serving at the White House, Kagan co-authored a memo urging then-President Clinton to support a Democratic proposal to prohibit late-term abortions even though some abortion-rights groups opposed the proposal.

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The memo reflects that Kagan, joined by several other members of the administration, was seeking a pragmatic political position on an issue that was raging at the time. The Republicans were trying to push through the Partial Birth Abortion Act which did not contain an exception for the health of the mother. Some Clinton supporters were attracted by the legislation because they were strongly opposed to the abortion procedure.

Senator Daschle introduced an amendment that offered a middle ground position with a narrowly tailored health exception.

Kagan writes that even though "the choice groups" oppose the Daschle proposal, the president should support it because "it will be difficult" to make the case that the language in Daschle's amendment "does not adequately safeguard women's health."

Other memos reflect the extensive role Kagan played in shaping the Clinton administration's position on any legislation banning the procedure.

Video of Senator Scott Brown meeting with Elena Kagan.
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