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:
Don't Ask, Don't Tell
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."
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.
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.
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
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."
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." 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."
Free Speech and Campaign Finance
As an academic, Kagan has written broadly on free speech issues, and her first argument before the Court as Solicitor General centered on the question of whether decades old campaign finance legislation banning corporate expenditures into electoral advocacy violated the free speech rights of the corporations.
Theodore Olson, a lawyer representing the non-profit corporation Citizen's United, told the Court, "Robust debate about candidates for elective office is the most fundamental value protected by the first Amendment's guarantee of free speech."
In her arguments Kagan focused on corruption and wrote, "Use of corporate treasury funds for electoral advocacy is inherently likely to corrode the political system, both by actually corrupting public office holders and creating the appearance of corruption." A deeply divided 5-4 Court ruled against the government.
Some first Amendment Scholars have suggested however, that although Kagan dutifully argued the government's position in the case, her past academic writings suggest that she might be skeptical of the constitutionality of some campaign finance reform.
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."
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.
"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."
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.
Race and Affirmative Action
The NAACP has endorsed Kagan's nomination for the Supreme Court.
While working as a lawyer in the White House in 1997 Kagan expressed enthusiasm for a position the administration's Solicitor General was taking on an affirmative action case. The case concerned a school board that had invoked its affirmative action policy in dismissing a white teacher instead of a black teacher with equal seniority.
Walter Dellinger, who was then serving as the Solicitor General , urged the administration to take a narrow position in the case in favor of a monetary judgment that had been awarded to the white teacher. Dellinger said the school board hadn't proved it relied on a diversity argument when making its decision and he felt the case was not the appropriate vehicle for the court to take a broader look at affirmative action.
"The approach I propose demonstrates that we are serious in our commitment to mend (without ending) affirmative action." Dellinger wrote.
At the top of Dellinger's memo Kagan added a handwritten note," I think this is exactly the right position" she wrote "as a legal matter, as a policy matter, and as a political matter."
Kagan and Bruce Reed, her boss at the Domestic Policy Council in the Clinton Administration clashed with other members of the administration regarding the issue of Race Policy Initiatives. Kagan and Reed took a more centrist approach to the issue writing in one memo that the "focus of the race initiative should be a race-neutral opportunity agenda."
Lester Spence, a political scientist at John Hopkins University has questioned her commitment to racial diversity while serving as the Dean of Harvard Law School. He wrote in an article for The Root "while Kagan made significant strides in making Harvard Law School ideologically diverse--hiring a number of conservative legal scholars--she made no strides in making the law school more diverse, gender- or race-wise."
The current Dean of Harvard Law, Martha Minow, rejects the characterization. In a recent conference call organized by the White House, Minow said that Kagan worked on "all kinds of diversity" including ideological, gender, racial, and methodological. Minow said that Kagan was a "huge advocate" for diversity but warned that no Dean can "wave a magic wand" and hire anyone she wants.