|Associate Justice of the U.S. Supreme Court|
From: August 7, 2010-present
|Predecessor||John Paul Stevens|
|Successor||Incumbent (no successor)|
Elena Kagan is currently an Associate Justice on the United States Supreme Court, having been nominated by President Obama on May 10, 2010 to fill the seat of retiring Supreme Court Justice John Paul Stevens. Previously she served as Solicitor General of the United States, confirmed in 2009 by a vote of 61-31. She was born April 28, 1960, to a lawyer father and school teacher mother, and has never married.
- 1987 – Served as judicial clerk for Abner Mikva, U.S. Court of Appeals in the D.C. circuit.
- 1988 – Served as judicial clear for Justice Thurgood Marshall of the Supreme Court.
- 1991 – Became assistant professor at the University of Chicago Law School. Met Barack Obama.
- 1995-99 – Employed as Associate White House Counsel and Deputy Assistant to the President for Domestic Policy under President Bill Clinton.
- 1999 – Nominated to the U.S. Court of Appeals for the District of Columbia Circuit.
- 1999-2001 – Harvard Professor of Law.
- 2003 – Charles Hamilton Houston Professor of Law.
- 2003 – Appointed as first female dean at Harvard Law School, after nomination by then Harvard University president Lawrence Summers.
- 2005-2009 – Began service as a member of the Research Advisory Council of the Goldman Sachs Global Markets Institute.
- 2009 – Became the first woman to hold the position of Solicitor General of the U.S.
Affection for Barack Obama
In a rare video record of her speaking, in 2005, Kagan expressed her affection for Barack Obama, stating,
And its that passion for service, ya know, that commitment, to be of use, to give back, to make a real difference in the world, that's what makes Barack Obama - Barack Obama. And thats what makes Barack Obama for me and for so many others, a hero." “But the night that Barack Obama spoke - not then even Senator Obama - [pause] he opened his mouth, he said a few words, and the place was mesmerized. You could hear a pin drop. In part, that is because of all these, well of, you know, rock star qualities he has: the eloquence, the magnetism, the great looks, the brilliance. But just as much, its because when Barack Obama speaks, when he opens up his mouth, you, you know you’re getting the real deal..." "And I think everybody in that room, and in that great hall, felt privileged, felt privileged to be at the coming out party of someone who will be, someone who deserves to be, and someone who the rest of us needs to be; one of the truly great political figures, one of the truly great public servants, of our time."
Nomination to the Supreme Court
On May 10, 2010, President Obama nominated Kagan to fill the seat of retiring Supreme Court justice John Paul Stevens. The 50 year old (in 2010) Kagan has years of experience in the legal field but had never served on the judicial bench, until her swearing in on August 7, 2010 as a Supreme Court justice. Kagan is the third woman currently seated on the court, and her confirmation marks the first time in American history that the Supreme Court has no Protestant members, as the Jewish Kagan replaced the sole Protestant, Stevens. Due to her young age, Kagan could potentially serve decades on the Court.
Documents from Kagan's service in the Clinton White House have served to reinforce the conception that Kagan is "a politically savvy, sometimes hard-edged strategist whose views of the Constitution are at odds with those of conservatives", and that she is possessed with "a sharp intellect and somewhat territorial; highly opinionated but eager to facilitate consensus."
Working with former President Bill Clinton, the Obama White House sought to ensure that no revelation from the documents harmed Kagan's confirmation chances. While many liberals fear that Kagan is not liberal enough, Republicans expressed concern that records would not be fully produced in time for the committee to conduct a proper review before her confirmation hearings, which were scheduled to begin June 28, 2010. Alabama Sen. Jeff Sessions, the top Republican on the Judiciary Committee, stated that there appeared to be 1,600 withheld documents which were not released, apparently due to confidentiality concerns.
Preparation by Bill Clinton
As a result of a request by senators who would vote on her nomination, 90,000 pages of records from the Clinton White House were released which revealed that Kagan played a role in crafting former President Bill Clinton’s policies on abortion, assisted suicide, religious freedom, gun control, welfare reform and tobacco. In addition, they also show that Kagan was part of Clinton's small army of lawyers which unsuccessfully sought to postpone Paula Jones’ sexual harassment lawsuit against him. As a result of her work, Clinton sought to gain her a seat on the federal appeals court in Washington, often a stepping-stone to the Supreme Court, an appointment which the Republican-controlled Senate opposed. In response to Kagan's note of thanks, the former President stated, "I was honored to nominate you - you will be a wonderful judge if we can get you through - and young enough to have a profound impact."
On August 5, 2010, by a vote of 63-37 the Senate confirmed Elena Kagan as the Supreme Court's 112th justice and fourth woman, replacing retired Justice John Paul Stevens. Five Republicans and all but one Democrat voted for Kagan, along with the Senate's two independents. In a ritual reserved for the most historic votes and that has rarely been practiced, the senators sat at their desks and stood to cast their votes with "ayes" and "nays."
Kagan is the first Supreme Court justice in nearly 40 years with no experience as a judge, and after her swearing-in on August 7 it marks the first time in history in which the nine-member court has had three women serving together, joining Ruth Bader Ginsburg and Sonia Sotomayor, President Obama's first nominee.
Due to her liberal ideology Republicans overall opposed Kagan. Jeff Sessions of Alabama, the top Republican on the Judiciary Committee, stated that Kagan,
|“||is truly a person of the political left - now they call themselves progressives - one who has a history of working to advance the values of the left wing of the Democratic Party, and whose philosophy of judging allows a judge to utilize the power of their office to advance their vision for what America should be.||”|
Kagan was also criticized for revealing little about what kind of justice she would be in weeks of private meetings with individual senators and many days of testimony before the Senate Judiciary panel, although she had penned a law review article criticizing Supreme Court nominees for obfuscating their views before the Senate. Kagan avoided questions about her personal beliefs on a variety of critical issues and repeatedly refused to give her opinion on Supreme Court rulings.
Activity and ideology
In 1987, Kagan was a law clerk for Judge Abner Mikva, a far-left judge on the D.C. Circuit Court of Appeals, and in 1988 she served justice Thurgood Marshall on the Supreme Court. The latter is considered by some to be the most liberal Supreme Court justice in American history, and that Kagan called him her legal hero is troubling to conservatives.
At Princeton, Kagan was see as a reserved and discreet person, politically "progressive and thoughtful but well within the mainstream of the ... sort of liberal, democratic, progressive tradition, and everything with lower case.” Kagan, future N.Y. Governor Elliot Spitzer and certain other campus leaders were members of the Coordinating Council of the Campaign for a Democratic University, which saw the administration as taking too much authority upon themselves, and signed a manifesto opposing it which appeared in the university paper, the ‘Prince.’ The group sought to “effect a fundamental restructuring of University governance,” and charged that “the administration rules this campus by decree.
On November 10, 1980, a week after Ronald Reagan’s presidential victory, Kagan submitted to The Daily Princetonian a personal essay titled, “Fear and Loathing in Brooklyn,” in which she explains that having worked some 14 hours a day, six days a week for the election of liberal candidate Liz Holtzman, she wept when the candidate lost.” She expressed that due to her background, "I absorbed such liberal principles early; more to the point, I have retained them fairly intact to this day." Reflecting on Reagan's win and the liberal loss, she stated,
Looking back on last Tuesday [election day], I can see that our gut response -- our emotion-packed conclusion that the world had gone mad, that liberalism was dead and that there was no longer any place for the ideals we held or the beliefs we espoused -- was a false one. In my more rational moments, I can now argue that the next few years will be marked by American disillusionment with conservative programs and solutions, and that a new, revitalized, perhaps more leftist left will once again come to the fore...But somehow, one week after the election, these comforting thoughts do not last long. Self-pity still sneaks up, and I wonder how all this could possibly have happened and where on earth I’ll be able to get a job next year.
Even after the returns came in, I found it hard to conceive of the victories of these anonymous but Moral Majority-backed opponents of Senators Church, McGovern, Bayh and Culver, these avengers of 'innocent life' and the B-1 Bomber, these beneficiaries of a general turn to the right and a profound disorganization on the left.
For her senior college thesis at Princeton, she analyzed the failure of socialism in New York in the early 20th century, a movement which her father and older brother sympathized with. Although the 153-page paper, To the Final Conflict: Socialism in New York City, 1900-1933, was written while Kagan was only 22, and was more of a dispassionate examination of the internal divisions in the movement that led to its decline, some perceive it as lamenting "the non-existence of a viable socialist movement in the U.S." Statements that some see as showing sympathy with socialism include:
Through its own internal feuding, then, the SP [Socialist Party] exhausted itself forever and further reduced labor radicalism in New York to the position of marginality and insignificance from which it has never recovered. The story is sad but also a chastening one for those who, more than a half century after socialism’s decline, still wish to change America.
However, history professor Sean Wilentz, who advised Kagan on her senior thesis, believes Kagan was adept at removing her personal beliefs from her academic research on labor and radical history, and is far from being a socialist.
An associate White House counsel beginning from 1995–99, Kagan recommended that the federal government support a case in favor of religious freedom. The California Supreme Court had ruled that a landlord violated a state law prohibiting housing discrimination by refusing to rent an apartment to an unwed couple because she considered sex outside marriage to be a sin. Kagan rejected the California justices’ rationalization used in ruling against the landlord, that the landlord's religious freedom was not burdened because she could get another job.
In an abortion case pertaining to a prisoner who sought the state to pay for her murder of the preborn infant, Kagan sought to persuade then president Clinton to choose a version of the bill that would pass, while protecting a woman's right to abortion.
Marjorie Dannenfelser, the leader of the Susan B. Anthony List, explained that:
|“||In the past Kagan has been a strong supporter of the pro-abortion agenda. She has vigorously opposed the de-funding of taxpayer-funded clinics which promote abortions, despite the fact that a majority of Americans do not want their tax dollars to fund abortion providers.||”|
Anne-Marie Slaughter, who became friendly with Kagan when both were Sachs Scholars at Oxford, and later taught with her at Chicago and Harvard law schools. opined that Kagan “knows how to pick her battles and stand up for what she needs to stand up for without alienating people unnecessarily. That’s a very valuable skill set, particularly at a place as political as Harvard Law School.” Early in her tenure Kagan pleased students by renovating both the student center and the out-of-date gymnasium, and by ensuring that free coffee and hot chocolate were available in the main classroom building and in the library.
Also while at Harvard, Kagan supported a censorship and banning of participation by the United States Armed Forces in recruitment that is made available to hundreds of other employers. She signed onto a law brief in 2004 urging the U.S. Supreme Court to overturn the Solomon Amendment, a law that denies federal funding to any university that “has a policy or practice … that either prohibits, or in effect prevents” military personnel “from gaining access to campuses, or access to students … on campuses [including Harvard Law Schoo], for purposes of military recruiting that they not discriminate against recruitment by the U.S. Armed Forces.. A federal appeals court judged the law to be unconstitutional, but the U.S. Supreme Court rejected her argument by a vote of 8-0. But Harvard University continues to ban ROTC to this day.
Kagan opposed military recruiters from being at Harvard because of the "don't ask, don't tell" policy which attempted to prevent homosexual relations in the military. She characterized it as “a profound wrong—a moral injustice of the first order … a wrong that tears at the fabric of our own community, because some of our members cannot, while others can, devote their professional careers to their country.”
Some have charged Kagan with duplicity in this issue, for not opposing a $20 million from a prince in Saudi Arabia in 2005, a country in which homosexual acts are punishable by death or flogging." The funds were used to create the Center for Islamic Studies in honor of Saudi Arabian Prince Alwaleed Bin Talal Bin Abdulaziz.
Regarding Capital Punishment, In her Solicitor general confirmation hearing, 2009, Kagan also stated, “I am fully prepared to argue, consistent with Supreme Court precedents, that the death penalty is constitutional.”
Kagan also apparently supports greater Presidential power. In a June, 2001 Harvard Law Review article, Kagan defended the Clinton administration's assertion of the right to direct federal regulatory agencies without congressional or court involvement. In review of this, William F. West, a professor who specializes in federal administration at the Bush School of Government and Public Service at Texas A&M, stated, "She is certainly a fan of presidential power." Neal Katyal, who has succeeded Kagan as Solicitor General, also was critical of her support of expanded executive power. However, in an 2001 article in the Harvard Law, Kagan wrote that while she largely welcomed Clinton's expanded presidential control, she cautioned, “President Clinton’s assertion of directive authority over administration, more than President Reagan’s assertion of a general supervisory authority, raises serious constitutional questions.”
In 2003, Elena Kagan presented an oral argument before the U.S. Supreme Court, defending the government' federal campaign finance law in Citizens United v. Federal Election Commission, in which the FEC had outlawed corporations, including non-profits, from spending funds from their general treasuries to pay for campaign ads. The specific cause was government opposition to a 90-minute documentary by the non-profit organization, Citizens United, opposing Hillary Clinton, then candidate for president. The Court rejected the government's argument and invalidated the law as unconstitutional, with Chief Justice John Roberts commenting, "we don't put our First Amendment rights in the hands of FEC bureaucrats."
Kagan has extensive ties to Goldman-Sachs, a financial institution under federal investigation.
Concerning Constitutional Theory, the interpretive basis used for deciding what the Constitution means, at her Solicitor General hearing Elena Kagan testified in favor of the use of foreign law to interpret the U.S. Constitution. She also wrote, “I think a judge should try to the greatest extent possible to separate constitutional interpretation from his or her own values and beliefs. In order to accomplish this result, the judge should look to constitutional text, history, structure and precedent." And that "The Constitution generally imposes limitations on government rather than establishes affirmative rights and thus has what might be thought of as a libertarian slant. I fully accept this traditional understanding, and if I am confirmed as solicitor general, I would expect to make arguments consistent with it."
Relating to judicial activism, Kagan stated in her Oxford thesis, “Judges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends. “Such activity is not necessarily wrong or invalid.” However, at her 2009 confirmation hearing for Solicitor General, she stated, “I think it is a great deal better for the elected branches to take the lead in creating a more just society than for courts to do so.” 
Due to her involvement in a number of cases involving key issues, it is expected that Kagan may have to recuse herself from 11 of the 24 cases which the court has consented to hear beginning in October. Additionally, it is speculated that Kagan might eventually have to step aside from two to three dozen cases over the next few years.
As of mid-January 2007, Kagan was considered a strong candidate to become the next president of Harvard University.
- “The Development and Erosion of the American Exclusionary Rule: A Study in Judicial Method.” 1983
- The Changing Faces of First Amendment Neutrality: R.A.V. v St. Paul, Rust v Sullivan, and the Problem of Content-Based Underinclusion, * * 1992 Supreme Court Review 29 (1992)
- Regulation of Hate Speech and Pornography After R.A.V, 60 University of Chicago Law Review 873 (1993)
- A Libel Story: Sullivan Then and Now, 18 Law and Social Inquiry 197 (1993) (book review)
- For Justice Marshall, 71 Texas Law Review 1125 (1993)
- Confirmation Messes, Old and New, 62 University of Chicago Law Review 919 (1995) (book review).
- When A Speech Code Is A Speech Code: The Stanford Policy and the Theory of Incidental Restraints, 29 University of California at Davis Law Review 957 (1996)
- Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 University of Chicago Law Review 413 (1996) 
- Presidential Administration,114 Harvard Law Review 2245 (2001)
- Chevron's Nondelegation Doctrine, with David Barron, 2001 Supreme Court Review 201 (2001) 
- Lawrence J. Siskind, Now He Tells Us!, American Thinker June 20, 2010
- Komrade Kagan, By Mark Alexander · Thursday, 13 May 2010. Retrieved from the Patriot Post 15 May 2010.
- On the Nomination (Confirmation Elena Kagan, of Massachusetts, to be Solicitor General), United States Senate
- Who is Elena Kagan, May 12, 2010
- FrontPageMagazine.com | Monday, May 18, 2009
- ABC news, The Conversation: Elena Kagan Nominated to Supreme Court, May 10, 2010
- God allowing.
- Associated Press, Kagan unscathed after revelations from past, June 19. 2010
- Glenn Greenwald, The case against Elena Kagan, Salon.com, April 13, 2010
- Mark Sherman, Kagan had role in Clinton White House’s big fights, Associated Press, June 13, 2010
- GOP may boycott Kagan hearings June 21, 2010
- Kagan had role in Clinton White House’s big fights, Associated Press June 12, 2010
- CBS news, Elena Kagan Confirmed as Supreme Court Justice, Aug. 5, 2010
- Why Ultra-Liberal Obama Needs Kagan On the Court, Fox News, May 10, 2010
- http://www.dailyprincetonian.com/2010/05/03/26081/print Reserved passion: Kagan ’81, The Daily Princetonian, May 3rd, 2010
- “To the Final Conflict: Socialism in New York City, 1900-1933,
- For Supreme Court nominee Elena Kagan, a history of pragmatism over partisanship, Washington Post, May 11, 2010
- The thesis has been removed from the Princeton University site, and electronic dissemination prohibited, while a fee of $54.60 is charged for purchase: http://www.princeton.edu/~mudd/news/kagan.pdf
- The Daily Princetonian, May 3rd, 2010
- 'Kagan Expressed Broad View of Religious Freedom, New York Times, June 11, 2010
- Kagan Expressed Broad View of Religious Freedom, New York Times, June 11, 2010
- Rumsfeld v. FAIR, Docket No. 04-1152, 2004 U.S. Briefs 1152
- FrontPageMagazine.com | Monday, May 18, 2009
- Senate Republican Accuses Kagan of Staying Silent on Saudi Gift to Harvard'', Fox News, June 16, 2010
- Boston Globe, January 6, 2009
- New York Times, Politics, Kagan's Notable Statements and Writings, May 9, 2010
- Citizens United v. Federal Election Commission
- David N. Bossie, Elena Kagan: Hostile to free speech?, The Washington Post, Friday, May 21, 2010; A17
- Written answers to Senate questions during her confirmation for solicitor general (2009)
- Mark Sherman, Kagan confirmation would affect major tobacco case, Associated Press, June 14, 2010
- Harvard law School
- Harvard University
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