Elena Kagan Nomination Debate Preview

President Obama is expected to announce at 10 am this morning that Elena Kagan will be submitted to the Senate for confirmation to the U.S. Supreme Court.  From FoxNews.com:


President Barack Obama is to nominate Solicitor General Elena Kagan as his pick to replace retiring Justice John Paul Stevens on the Supreme Court, NBC News reported Sunday.

Let the vetting begin.  A preview of the Senate debate on Kagan to be Supreme Court Justice can be found in the Congressional Record preceding the March 19, 2009 vote on her nomination to be President Obama’s Solicitor General.  Kagan is going to have a rough ride — she only passed on a 61-31 vote.

The March 2009 debate is a preview to the public debate that will be going on over the next few weeks from coast to coast.  Kagan was hit hard on her actions in banning the military from recruiting on campus at Harvard Law.  She was also critiqued for not having the necessary experience for the Obama Solicitor General position.  These issues will be front and center in this debate.  Will this be President Obama’s Harriet Miers Moment?

The Solicitor General position is the confirmed presidential appointee to assist Attorney General Eric Holder in representing the interests of the Obama Administration before the U.S. Supreme Court.  The US Department of Justice describes the Solicitor General as the following:

The original Statutory Authorization Act of June 22, 1870, states, “There shall be in the Department of Justice an officer learned in the law, to assist the Attorney General in the performance of his duties to be called the Solicitor General.” The Office of the Solicitor General is tasked to conduct all litigation on behalf of the United States in the Supreme Court, and to supervise the handling of litigation in the federal appellate courts. The general functions of the Office can be found at 28 CFR 0.20.


Some Senators will argue that Kagan lacks the requisite experience to be a justice on the Supreme Court.  Senator Jeff Sessions (R-AL) on the Senate Floor on March 19, 2009 his reservations for Kagan to be Solicitor General:

Well, so far as I can observe, other than time in the White House Counsel’s Office, Dean Kagan has only practiced law for 2 years in a real law firm practicing law. She had very limited experience in the things you would look for in a person of this nature.

If Kagan did not possess the experience as a judge or practitioner to be Solicitor General, then, even with a year under her belt as Solicitor General, it is hard to argue that she is qualified to be on the highest court in the land.

Sessions raised the issue of Kagan’s, in her capacity as Dean of the Harvard Law School, barring the U.S military from recruiting on campus, because of the military’s “Don’t Ask, Don’t Tell” policy on gays in the military:

During her tenure as dean, Ms. Kagan barred the U.S. military from coming on the Harvard Law School campus to recruit young law graduates to be JAG officers in the U.S. military. That was from November of 2004 through September of 2005. She barred them from coming and recruiting on campus while 150,000 of our finest men and women in this country were serving in combat in Iraq and Afghanistan and during a time in which 938 troops died in combat, preserving the rights of people like law deans, faculty, and students to have all the opinions they want. Her decision to bar the military from her campus during a time of armed conflict represents exceedingly poor judgment and leadership, particularly for someone who wants to lead the Department of Justice, the executive branch, and support the military of the United States. By refusing to allow military recruiters on the Harvard Law School campus, she placed her own opposition to military policies above the need of our military men and women to receive good legal advice, even from Harvard lawyers. And she did so at a time when the military, serving in conflicts in two foreign countries, was facing a host of complex legal issues. We are still fighting over them, for that matter.


Congress passed something called the Solomon Amendment that conditioned federal money to be given to a University on that campus allowing military recruitment.  If a school was to bar the military, then they were to get no federal funds.  Dean Kagan barred the military from recruiting on the Harvard Law campus, in violation of that provision in law.  Kagan then joined a friend of the Court brief in the Rumsfeld v FAIR case arguing that her actions were not a violation of the law.  Sessions argued that Kagan’s brief contained a presumption that was “clearly wrong as a matter of law.”  Kagan had called the law “immoral” and showed poor legal judgement in her actions and in signing the brief. 

Sessions argued:

I think a nominee to be the Department of Justice’s chief advocate before the Supreme Court, to hold the greatest lawyer job in the world, should have a record of following the law and not flouting it. The nominee should, if anything, be a defender of the U.S. military and not one who condemns them. Ms. Kagan’s personal political views, I think, are what led to this criticism of the military, this blocking of the military. She opposed a plain congressional act that was put into place after we went through years of discussion and pleading with some of these universities that were barring the military. They had refused to give in, so we passed a law that said, OK, you don’t have to admit the military, but we don’t have to give you money, and we are not giving you any if you don’t admit them. They didn’t like that. So Ms. Kagan’s refusal of on-campus military recruiters went against a congressional act.

Senator Jim Inhofe (R-OK)also criticized Kagan for her actions in barring the military from recruiting at Harvard Law School:


When serving as a dean of Harvard Law School, she demonstrated poor judgment on a very important issue to me. Ms. Kagan banned the U.S. military from recruiting on campus. She and other law school officials sued to overturn the Solomon amendment. The Solomon amendment originated in the House. Congressman Jerry Solomon had an amendment that said no university could preclude the military from trying to recruit on campus. This was a direct violation of the amendment. She actually was claiming that the Solomon amendment was immoral. She filed an amicus brief with the Supreme Court opposing the amendment. The Court unanimously ruled against her position and affirmed that the Solomon amendment was constitutional.

Senator Jon Kyl (R-AZ)supported Kagan for the temporary S.G.’s position after stating that he had reservations about her actions relating to the Solomon Amendment controversy and her lack of experience as a judge or practitioner.  Kyl did make it clear that his vote for her to by Solicitor General is no indication as to whether he would vote for her lifetime appointment to the U.S. Supreme Court:

I would like to make clear that my vote for Dean Kagan is only for the position of Solicitor General, and my vote does not indicate how I would vote for her if she were nominated for any other position, especially a position that is a lifetime appointment. Specifically, according to numerous news accounts, Dean Kagan is expected to be considered for nomination to the Supreme Court if an opening were to occur during the Obama administration. If she were nominated, her performance as Solicitor General would be critical in my evaluation of her suitability for the Supreme Court. My decision whether to support or oppose her would be strongly influenced by the decisions made by her as Solicitor General, such as the cases for which she does and does not seek review, the positions she argues, and the bases for her arguments. If she approaches her job as Solicitor General ideologically or argues inappropriate positions, I will not hesitate to oppose her nomination.


Senator Jim Bunning (R-KY) expressed reservations about the Solomon Amendment controversy and Kagan’s extreme views on religion and religious organizations participation in the counseling of pregnant teenagers:

Dean Kagan has also expressed an unsettling attitude towards religion and religious organizations. In a memo as a law clerk on the subject of which organizations should receive funding to counsel teenagers on pregnancy, she wrote “It would be difficult for any religious organization to participate in such projects without injecting some kind of religious teaching.” She added “When government funding is to be used for projects so close to the central concerns of religion, all religious organizations should be off limits.” This seems like an incredibly insensitive, insulting, and impractical view to hold. Does Dean Kagan feel that only atheists are fit to handle government funds? Would she support some sort of a “religious commitment” litmus test? This seems like an attitude that would be unfit for a high ranking member of our government.

Even Senator Arlen Specter (R-PA at the time) expressed reservations about the nominee because she would not answer direct questions and was evasive about her views on specific issues.  Specter stated that it was tough to find “out from a nominee what the nominee thinks on important questions.”  Expect Kagan to be even more evasive and to not answer any question about her feelings on issues that are important to Senators during the Supreme Court confirmation process.  Sadly, the confirmation process for judges has devolved into the functional equivalent of a constitutional law oral examination with nominees merely reciting existing case law then stating that they would follow binding precedent.  Specter pledged to vote no and concluded:


She feels she does not have to answer questions because it would be inappropriate because the case is pending and the Solicitor General has rendered an opinion. Well, I disagree with that. I have no illusion the issues I have raised will prevail. I think it is pretty plain that Dean Kagan will be confirmed. But I do not articulate this as a protest vote or as a protest position, but one of institutional prerogatives. We ought to know more about these nominees. We ought to take the confirmation process very seriously. I believe the scarcity and paucity of Senators who have come to the floor to debate this nomination does not, candidly, speak too well for this institution. We are all waiting to vote to go home. But this is an important position. For a Supreme Court Justice nominee, television cameras would be present during the hearings, and everybody would be there, and everybody would be on camera.   Well, I think we have to pay a little more attention, and I have gone to some length to try to find out more about Dean Kagan. In the absence of being able to do so and to have a judgment on her qualifications, I am constrained to vote no.

Three issues will be central to the prospects of Kagan’s confirmation to the U.S. Supreme Court.  First, did she disqualify herself for a lifetime appointment to the Court with her extreme actions in barring the military from recruiting on the Harvard Law campus.  Second, will she legislate from the bench and exhibit the same elitist attitude that lead her to disregard the Solomon Amendment by barring the military from recruiting on campus during time of war.  Finally, will she answer any questions during the confirmation process allowing Senators to understand her judicial philosophy.  If the answer is no to the final question, conservative Senators may filibuster the Kagan nomination for the purpose of forcing Kagan, and future nominees, to directly answer questions about judicial philosophy.  Any way you slice it, this is going to be a tough nomination process and a difficult confirmation battle.



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