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Supreme stealth

Supreme Court nominee Elena Kagan's diligence obscures her partisan past

Issue: "Gulf toil," June 5, 2010

Elena Kagan clerked for a liberal Supreme Court justice, Thurgood Marshall, in 1980, worked on Gov. Michael Dukakis' 1988 presidential campaign, worked for then-Sen. Joe Biden on the Senate Judiciary Committee in 1993, worked as a policy adviser and counsel to President Bill Clinton, and now serves in the Obama administration as the solicitor general, the lawyer who argues the government's cases before the Supreme Court. Despite the overtly political record, President Obama has portrayed his nominee for the Supreme Court as a nonpartisan moderate, and she is likely to receive Senate confirmation.
Seven Republicans voted for her Senate confirmation last year as solicitor general, but Senate Republican leader Mitch McConnell said that the "standard of scrutiny is clearly much higher now." Republicans primarily object to some of her actions recently as dean of Harvard Law School, where she pushed for a ban on military recruiters on campuses that receive public money because of the military's "Don't Ask, Don't Tell" policy. The top Republican on the Senate Judiciary Committee, Sen. Jeff Sessions, said she may have circumvented the law.
Despite her liberal background, she's not an easy caricature: In 2002, Kagan wrote a letter to the top Democrat on the Senate Judiciary Committee urging him to support a Bush nominee, Michael McConnell, who went on to receive Senate confirmation and became a federal appeals court judge. Since Obama came to office, McConnell has been in private practice and most recently argued for the Christian Legal Society before the Supreme Court, where he defended the group's right to require its voting members to agree to a statement of faith. McConnell recently praised Kagan's "truly unusual record of reaching out across ideological divides."
The New York Times' David Brooks and others, like attorney Tom Goldstein, who publishes the high-caliber court-watching news site SCOTUSblog, see these details as marks of her carefulness to make a wide range of friends without revealing her personal viewpoints. "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," Goldstein commented. The studious reserve required to pass confirmation as a justice these days requires an unhealthy suppression of one's opinions, they argued.
Republicans cite her lack of experience on a court bench as another mark against her. Though she has a sparse record-having never before served as a judge-she will be providing more documents from her White House days with the approach of her confirmation hearings.
Religious groups may be concerned about a memo she wrote to Justice Marshall over 20 years ago, in which she argued that religious groups shouldn't receive public funding because they can't separate their teachings from their work. When senators questioned her about that memo in her confirmation hearings last year, she called her arguments "the dumbest thing I ever heard" and said she indeed believed that religious groups could receive public funds. She dealt with similar issues as domestic policy adviser to President Clinton, working on the 1996 welfare reforms, which opened up federal funds for religious groups to provide social services. If she is confirmed, the court will have no Protestant justices-all would be either Catholic or Jewish. The Senate Judiciary Committee has scheduled confirmation hearings for the week of June 28.

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Emily Belz
Emily Belz

Emily, who has covered everything from political infighting to pet salons for The Indianapolis Star, The Hill, and the New York Daily News, reports for WORLD Magazine from New York City. Follow Emily on Twitter @emlybelz.


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