Elena Kagan: 8 Things You Need to Know About Her

Nine years earlier, while she was clerking for Justice Thurgood Marshall, Kagan warned her boss that a pending case regarding female prisoners seeking state funds for elective abortions could become the "vehicle" for Conservatives on the bench to "create some very bad law on abortion."

"We can see from her statements that she viewed a court backing away from abortion rights or prisoner rights as a step in the wrong direction," said Severino. "It is often said that hard cases make bad law, and she worried that deciding these cases against the women inmates might go farther than she or her justice would have gone in limiting these rights. For those who weren't already confident in her pro–Roe v. Wade position, this should be a clear signal."

Executive Power and War on Terror

Video of Senator Arlen Specter discussing meeting with Elena Kagan.
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Much has been written on Kagan's 2001 Harvard Law Review article detailing her support for the Clinton administration's use of a stronger executive power when it comes to the control of government agencies. Such presidential supervision, she wrote works to "jolt into action bureaucrats suffering from bureaucratic inertia in the face of unmet needs and challenges."

However, supporters of Kagan are quick to point out that her views of a robust executive power on the agency level should not be confused with an endorsement of the Bush/Cheney's view of executive power during the war on terror. Walter Dellinger, former acting Solicitor General for the Clinton administration, says that her take on a robust executive "does not endorse anything remotely" like the Bush-Cheney view of broad presidential power during the War on terror "to evade laws passed by Congress."

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In an opinion piece for Slate Dellinger writes that the Bush-Cheney view of executive power "was wrong because it allowed for the president to ignore decisions made by Congress and assert unilateral power to violate duly enacted laws. That is a view of presidential power that Kagan expressly rejects."

In a 2005 letter, Kagan joined other law deans to criticize an amendment authored by Lindsay Graham which would have limited detainees from being able to challenge their detention in federal court.

"When dictatorships have passed laws stripping their courts of power to review executive detention or punishment of prisoners, our government has right challenged such acts as fundamentally lawless. The same standard should apply to our own government."

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Some liberals have complained that Kagan was not vocal enough in her criticism of policies made by the Bush administration during the War on Terror.

Glenn Greenwald of Salon has written: "Among the most disturbing aspects is her testimony during her Solicitor General confirmation hearing, when she agreed wholeheartedly with Lindsey Graham about the rightness of the core Bush/Cheney terrorism template: namely, that the entire worlds is a "battlefield" that "war" is the proper legal framework for analyzing all matters relating to Terrorism, and the Government can therefore indefinitely detain anyone captured on that "battlefield."

Video of Senator Mitch McConnell meeting with Elena Kagan on Capitol Hill.
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