Kagan Memos as Clerk Raise Ire of Sen. Sessions

Jun 10, 2010 5:41pm

ABC News' Ariane de Vogue reports:  Sen. Jeff Sessions, R-Ala., held a briefing today to express his continuing concern about memos Supreme Court nominee Elena Kagan wrote to Justice Thurgood Marshall when she was a clerk.

Hundreds of the documents are publicly available at the Library of Congress, and Sessions believes the memos demonstrate a personal or political approach to some cases instead of one based on the law.

During her confirmation hearing for solicitor general Kagan was asked in general if the memos to her boss reflected her personal opinion, and she responded:“I do not want to say that there was nothing of me in these memos” she said. But she went on to explain that she wrote them in order to facilitate the work of the Justice and allow him to advance his goals.

“You know,” 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."

Today, Sessions highlighted a memo written by Kagan in 1988 while she was serving as a clerk, in which she lays out a case involving an undercover operation by the government that was launched to apprehend child pornography traffickers.

The defendant in the case was convicted of two counts of mailing material involving sexual exploitation of minors after he responded to ads in newsletter called Love Land that was secretly run by the Postal Inspection Service.

The defendant claims his due process rights were violated by the government. Lower courts found that the governmental scam came “close to the line” but did not cross it. The courts held that the defendant was not entrapped by the government because he had indicated a predisposition to send child porn through the mail.

Kagan lays out the case in a cert memo for her boss, writing, “I’m a bit shocked that the U.S. Government publishes a newsletter soliciting people to transport such materials through the mails.”

Kagan writes that the lower court “may have been correct on the law," but she thinks the case merits further attention.

It is this sentiment that concerns Sessions. He is worried that Kagan disregards what might be “correct” law to look for a remedy outside of the law’s confines.

– Ariane de Vogue

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