Kagan’s thin record spurs hunt for clues

Wednesday, May 12, 2010

WASHINGTON — Elena Kagan's opposition to the Pentagon's “don't ask, don't tell” policy on gay troops is a rare insight into her personal views. Kagan's public record, thinner than most earlier Supreme Court nominees, otherwise offers supporters and critics little assurance about how she would vote as a justice.

President Barack Obama nominated Kagan on May 10 to succeed Justice John Paul Stevens, who will retire this summer. Kagan is expected to vote the same way as Stevens, the leader of the court's liberals, on most issues. But the assessment of her anticipated votes is based more on her affiliation with two Democratic administrations than on her record.

With the exception of “don't ask, don't tell,” which she condemned as a discriminatory “moral outrage,” Kagan has more often been circumspect and cautious about injecting her own views into her public words. She worked in the Clinton White House and the Obama Justice Department, putting forward or defending the administration position. As dean of Harvard Law School, she generally avoided polemics.

Writing about Kagan's view of the First Amendment, UCLA law professor Eugene Volokh wrote on his blog, The Volokh Conspiracy, that it's “hard to predict” from her writings how Kagan would decide cases as a Supreme Court justice.

“Kagan’s First Amendment work suggests a general acceptance of current free-speech law, and an attempt to better understand it and make it more internally consistent rather than to radically change it,” Volokh wrote May 10 in a post titled “Elena Kagan as a Scholar.”

Volokh praised Kagan's scholarship, saying her articles “go behind glib generalizations and formalistic distinctions.” But they are poor predictors because they “are often more analytical…than prescriptive,” Volokh said in a blog post.

In a law review article in 1992, Kagan assessed a Supreme Court ruling that upheld a rule prohibiting recipients of federal funds from counseling women to have an abortion. “The regulations at issue can hardly be understood except as stemming from government hostility towards some ideas (and their consequences) and government approval of others,” Kagan wrote. She was then a law professor at the University of Chicago.

Republicans hunting for clues about what kind of justice Supreme Court nominee Kagan would be said yesterday they wanted to see papers from her time serving in the Clinton administration.

The focus on Clinton-era documents reflects the GOP's difficult task of turning up material that could power opposition to Kagan, the solicitor general who appears likely to be elevated to justice barring extraordinary developments during her confirmation process.

Because Kagan spent little time in court and never sat as a judge, she does not have the typical long history of court opinions and legal briefs. That has made it difficult to assess her legal acumen or ideology, and gives Republicans little ready ammunition to use against her.

Press secretary Robert Gibbs said yesterday the White House would work “to fulfill reasonable requests” for documents from Clinton's presidential library in Little Rock, Ark., but he left open the possibility that some could be declared off-limits because they relate to communications between the president and his staff.

“I'd have to check more deeply with counsel on that,” Gibbs said.

“It is a confirmation, it's not a coronation,” said Sen. Jeff Sessions of Alabama, the top Republican on the Judiciary Committee that will hold hearings on Kagan's nomination. “She's never been a judge. Never litigated cases except in the last few months as solicitor general. And so she lacks a good bit, frankly,” Sessions said.

“We need to understand what it was that she was involved in, whether there were controversies surrounding that,” said Sen. Jon Kyl of Arizona, the No. 2 Republican. “And if that means that there are documents we need to see, we should see them. … We are determined to understand what her role was in the Clinton administration as it pertains to her qualifications to serve as justice.”

Kagan, 50, is meeting today with leaders of both parties as well as Sessions and Judiciary Committee Chairman Patrick Leahy, D-Vt., as she begins the delicate and closely watched ritual of making “courtesy calls” to the senators whose votes she'll need to win confirmation.

But if any of them want to know Kagan's views on hot-button legal issues – like the legality of the White House's new health-insurance law, the constitutionality of gay marriage, or Arizona's new immigration law – they're unlikely to learn much.

If Kagan follows the playbook for nominees, she won't be speaking her mind about legal, political or social issues raised by the senators whose votes she needs for confirmation.

Unless she breaks the traditional silence of other recent Supreme Court nominees – something the nominee herself called for in 199 5 – senators will have to vote on elevating Kagan to the nation's highest court without finding out where she really stands on today's touchy topics.

Republicans are warning that a lack of candor could be detrimental to her getting bipartisan approval.

“Ms. Kagan failed to answer many questions posed by senators prior to her confirmation as solicitor general,” Sen. John Cornyn, R-Texas, said. “This failure led many members to oppose her nomination. I hope that she will now more willingly respond to reasonable and relevant questions.”

But ever since Robert Bork expansively explained his theories of the law to the Senate Judiciary Committee in 1987 and failed to get Senate confirmation, Supreme Court nominees have kept their personal opinions about controversial questions to themselves as much as possible.

Stevens, the man Kagan wants to replace, says that is the way it is supposed to be.

“It's quite unfortunate to be trying to pin down judges on particular issues,” Stevens said in a speech at a judicial conference last week. “What they've said in published opinions is one thing, but speculating about issues is another.”

Senate Majority Leader Harry Reid defended Kagan yesterday against GOP criticism that she's not qualified for the job. Kagan “has fresh ideas. She's been out in the real world recently. I think she's going to be just a terrific addition to the Supreme Court,” Reid, D-Nev., said on the Senate floor.

He pointed out that one storied chief justice, William Rehnquist, was a GOP nominee who also came to the court without having first been a judge.

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