Politics

Conservatives say potential Supreme Court pick Elena Kagan’s views far from ‘moderate’

Jonathan Strong Contributor

If there’s one word potential Supreme Court pick Elena Kagan’s supporters want you associate with her name, it is “moderate” — as in, just as likely to tick off liberals as conservatives. Conservatives, though, are pointing to Kagan’s record which, while sparse, includes some stops along the way that were far more San Francisco than Williamson County, Tenn.

Kagan’s boldest foray into public life was, as dean of Harvard Law School, throwing the military off campus over its “don’t ask, don’t tell” policy on gay soldiers. Kagan called the policy, implemented by her former boss President Bill Clinton, “a profound wrong — a moral injustice of the first order.”

She pursued the matter all the way to the Supreme Court, where the justices unanimously slapped down her arguments, forcing Harvard to allow the military to return. Critics say the legal theories she advanced were so preposterous they raise questions about her ability to focus on the law and not political results. Kagan has pointed out she didn’t write the amicus brief at issue, just signed it, and that she was advancing Harvard’s view as an institution.

Her other major political move while Harvard Law’s dean was to defend lawyers who represent terrorists in their spare time in a statement also signed by Obama nominee Harold Koh. “Our American legal tradition has honored lawyers who, despite their personal beliefs, have zealously represented mass murderers, suspected terrorists and Nazi marchers,” Kagan said. Her stance is supported by many lawyers, including conservative ones, but nonetheless is a matter of debate.

As President Obama’s solicitor general, the lawyer who represents the administration in federal court, conservative legal analysts say she has moved to undermine “don’t ask, don’t tell” and the Defense of Marriage Act, which mandates that marriage remain between a man and woman under federal law.

Specifically, on “don’t ask, don’t tell,” Kagan declined to appeal an adverse ruling by the 9th Circuit. Months before, the Justice Department under then-President Bush said the ruling “cannot be implemented without disrupting the military” in the midst of two wars. Attorney General Holder said there were prudential concerns — generally speaking, the government may fear a Supreme Court decision could be worse than a lower court decision it disagrees with, but conservative legal analysts called foul, saying Kagan and the administration were subtly undermining federal law.

On the Defense of Marriage Act, Kagan damned with faint praise — she defended the law, but not without first saying the Obama administration opposed it, thought it was discriminatory and hoped to overturn it. Pro-gay marriage lawyer Dale Carpenter wrote the move was a “gift to the gay-marriage movement” because the administration was “helping knock out a leg from under the opposition to gay marriage.”

Before she was solicitor general and dean of Harvard Law School, Kagan spent four years in the Clinton White House, rising from a lawyer in the White House Counsel’s office to deputy director of the Domestic Policy Council. She played a key role in negotiations over anti-tobacco legislation. (Notably, she smoked cigarettes for 17 years and still enjoys a cigar — at least she did then, when Dana Milbank heaped praise on her in a New Republic profile).

The other key issue she worked on was hate crimes legislation. Kagan appeared at a conference of gays and lesbians to announce the administration’s push for broader hate crimes laws. Conservative groups have long feared such laws could hamper their religious freedom and 1st Amendment speech rights.

Long ago, Kagan wrote a memo while clerking for the late Supreme Court Justice Thurgood Marshall that said religious organizations that provide care for teen pregnancies shouldn’t get federal funds because of a strict line separating church and state. But in Senate hearings in 2009 Kagan said she had changed her mind and now considered the memo the “dumbest thing I’ve ever heard.”

After Marshall died in 1993, Kagan gave a speech in his honor. She said Marshall’s view of the judiciary was that its primary purpose was to “show a special solicitude for the despised and disadvantaged … to safeguard the interests of people who had no other champion.” Kagan said, of Marshall’s liberal views on the topic, “however much some recent justices have sniped at that vision, it remains a thing of glory.”

At every step in her career, Kagan has drawn gushing praise, often of her ability to bridge warring factions with Solomon-esque wisdom. At Harvard, for instance, she ended a feud between Marxist critical legal theory acolytes and regular liberals that had brought hiring to a freeze by hiring from both sides.

Those hires included several prominent conservatives, who were grateful for Kagan’s beneficence. In fact, right-wing lawyers such as President Bush’s Solicitor General Ted Olson and Bill Clinton’s former worst nightmare Ken Starr wrote in to support Kagan’s nomination for solicitor general.

The lawyers, in their letter, noted “the extraordinary skill she has demonstrated in bringing to Harvard an impressive array of new scholars” and said her “brilliant intellect … directness, candor and frank analysis will make her an especially effective advocate” for the government.

Other conservatives are rejecting the lawyers’ support. Wendy Wright, president of the Concerned Women for America, says they suffer from “Stockholm syndrome,” and that just because Kagan was nice to conservatives at Harvard “doesn’t make her qualified for the Supreme Court.”

The other thing critics say about Kagan is that her paper trail is so short, it’s almost suspicious.

Tom Goldstein, who is not one of those critics, wrote on SCOTUS Blog, “I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade. Now, there are obviously an awful lot of people whom I do not know. But I have never talked to anyone who talked to anyone who had a conversation like that.”

On some issues, like the 2nd Amendment, almost nothing is known about Kagan’s views. She moderated a debate on the issue in 2003, but law professor Eugene Volokh, who defended gun rights at the debate says he learned “nothing at all” about her views on the subject at the event.

While Goldstein says nobody in his presumably elite circles has chatted up Kagan on say, the nondelegation doctrine lately, at least one man claims to have sparred with her, and for years! Harvard alumnus Joseph Flom wrote in a Jan. 23, 2009 letter in support of Kagan’s nomination for solicitor general that one of the reasons he was convinced she’d be “outstanding” for the job is he “had an opportunity over several years to debate current legal issues with her.”

Reached by phone, Flom, an 86-year-old lawyer who specialized in mergers and acquisitions said he remembers “nothing” about Kagan’s political views, merely that the conversations revealed how even-handed and open-minded she could be. He did say she wasn’t in the critical legal studies school and compared her to long-ago high court justices Louis Brandeis and Dennis Cardozo.

Kagan’s saving grace may have been her view that the Senate should grill Supreme Court nominees to ensure they know what they’re getting. In a 1995 book review she wrote “when the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce.” But in 2009, she was “less convinced than I was in 1995 that substantive discussions of legal issues and views, in the context of nomination hearings, provide the great public benefits I suggested.”