Legal Analysis of Kagan Appointment

May 10, 2010

President Obama nominated Solicitor General Elena Kagan to replace Justice John Paul Stevens this morning.  Before her appointment as the U.S. Solicitor General 15 months ago, Kagan was the Dean of Harvard Law School from 2003-2009.  Kagan lacks any judicial experience.

President Obama’s decision to nominate Elena Kagan is ill-advised for the following reasons:

  • Kagan has contributed money to the National Partnership for Women and Families, a pro-choice organization with strong ties to Emily’s List and NARAL.  See Kagan’s Response to Senate Judiciary Committee Questionnaire, Solicitor General Nomination, page 5, available at http://judiciary.senate.gov/nominations/111thCongressExecutiveNominations/upload/Kagan-Public-Questionnaire.pdf.
  • Kagan has publicly and repeatedly criticized Rust v. Sullivan, 500 U.S. 173 (1991), a Supreme Court decision which upheld regulations that ensured Americans’ tax dollars did not support programs that promote or counsel for abortion.  Despite the fact that the majority of Americans do not want their tax dollars to fund abortion providers, Kagan objected to this Supreme Court decision and even argued that the regulations amounted to the subsidization of “anti-abortion” speech.  See Kagan, Elena, The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion,1992 Sup. Ct. Rev. 29 (1992).
  • Kagan is dismissive of the harmful effects abortion has on women’s physical, emotional, and psychological health, calling them “widely contested.”  See Kagan, Elena, Regulation of Hate Speech and Pornography After R.A.V., 60 U. Chi. L. Rev. 873 (1993).
  • Kagan is a judicial activist in the making.  She openly admires one of the world’s leading judicial activists, Aharon Barak, the retired President of the Supreme Court of Israel, describing him as “my judicial hero.”  Kagan’s “hero” wrote a book, The Judge in a Democracy, which has been called “a textbook for judicial activists” and referred to as establishing “a world record for judicial hubris.”  See http://www.hlrecord.org/2.4463/distinguished-israeli-jurist-receives-2006-justice-prize-1.578536.
  • Kagan so esteems judicial activists that she signed a letter from law school deans which sought to silence critics of activist judges, attacking them as “irresponsible” and asserting that their criticism was “harmful to our constitutional system and to the value of a judiciary.”  See May 4, 2005 Letter from Law School Deans.
  • Kagan’s admiration of activist judges will make her a Supreme Court Justice who places her personal ideology over our Constitution and democratic values.  Her respect for the judicial activist philosophy is exactly the thinking that led the Supreme Court to appoint itself the sole arbiter of abortion policy, denying the American people the right to be heard on this critical issue.
  • While a Supreme Court clerk for Justice Marshall in 1987, Kagan wrote a memo arguing that “all religious organizations should be off limits” from receiving federal funding to support projects authorized by the Adolescent Family Life Act (including pregnancy testing, adoption counseling and referral services, prenatal and postnatal care, educational services, residential care, child care, consumer education, etc.) because those projects are “so close to the central concerns of religion.”  Her position was rejected by the Supreme Court in Bowen v. Kendrick, 487 U.S. 589 (1988).  See 1987 Memo from Elena Kagan to Justice Marshall.
  • Kagan may also be sympathetic to those who would impose international norms on Americans, including a limitless right to abortion.  In follow-up questions after her Confirmation Hearing for Solicitor General, Senator Specter questioned Kagan about the use of foreign sources of law in Constitutional decision-making.  Kagan answered, “At least some members of the Court find foreign law relevant in at least some contexts. When this is the case, I think the Solicitor General’s office should offer reasonable foreign arguments to attract those Justices’ support.”  Kagan’s answer further suggests that she does not understand that a Justice’s responsibility is to uphold and adhere to the Constitution.  See Written Questions for Elena Kagan, Nominee to be Solicitor General of the United States available at http://judiciary.senate.gov/nominations/111thCongressExecutiveNominations/upload/Kagan-QFRs.pdf