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Monday, May 10, 2010

Who Is The Real Elena Kagan? Questionable Record On Diversity

Name: Elena Kagan

Vital stats: Born in New York, member of the Democratic Party, Jewish, graduate of Harvard Law School, Oxford University, and Princeton University.

Career highlights: Solicitor general, Department of Justice, 2009-present; Member, Research Advisory Council at the Goldman Sachs Global Markets Institute, 2005-2008; Dean, Harvard Law School, 2003-2009; Deputy assistant to President Clinton for Domestic Policy, 1997-1999; Associate counsel to President Clinton, 1995-1996; Special counsel to Senate Judiciary Committee chairman Joe Biden, 1993; Law clerk to Justice Thurgood Marshall, U.S. Supreme Court, 1987-1988; Staff member, Dukakis for President Campaign, 1988.

Solicitor General who joined the high court: William Howard Taft, Stanley Reed, Robert Jackson, and Thurgood Marshall.

Holding Court: What You Need To Know About Elena Kagan

The Basics:

Elena Kagan, currently Obama's solicitor general, was the first woman to hold that position, as well as the female dean of Harvard Law School. A graduate of that school as well as Princeton and Oxford, she clerked for Justice Thurgood Marshall (who nicknamed her "Shorty") and Judge Abner Mikva.

She taught at the University of Chicago Law School at the same time as the President, was a major aide in the Clinton Administration, worked for Joe Biden when he was on the Senate Judiciary Committee, and was appointed to her Harvard job by Larry Summers. At 50, she'd be the youngest member of the court, and the only one without experience as a judge.

She Is Widely Seen As Brilliant:

One of the many testimonials to Kagan's fine mind is that of Sean Wilentz, the historian who advised her undergraduate thesis on the demise of New York socialism in the early 20th century. He says that Kagan is "one of the most extraordinary people I've met in my life, let alone teaching at Princeton."

...But You May Have To Take Someone Else's Word For It:

Many have already complained of Kagan's relative reticence in public life:

It's as if she's been grooming herself to be a Supreme Court Justice since high school in New York City, when she posed in her yearbook with a judge's robe and gavel above a quote from Justice Felix Frankfurter.

In college, as editorial page editor of the Daily Princetonian, she oversaw unsigned editorials and her own beliefs were hard to pin down. Her relatively thin publication record as a law professor and civil servant led to her being recently compared to Harriet Miers, which is hotly disputed by her supporters.

Political Savvy:

Ironically, Kagan once criticized the confirmation process as being "an embarrassment," because "senators today do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues."

She was also denied the opportunity to reveal more about her decision-making process, since Republicans blocked President Clinton's nomination of her as DC circuit judge from even getting a hearing. The spot eventually went to now-Chief Justice John Roberts. She is now being described as Obama's intended intellectual counterweight to Roberts on the Court.

Liberals Think She Isn't Liberal Enough, And Republicans At One Point Adored Her:

Not long after Kagan was confirmed as Solicitor General last year, the Times remarked, "Republicans were almost as effusive as the Democrats in their praise for her." But some progressives have raised concerns about Kagan from the start, either because of a lack of evidence of her ideological stances or because she didn't use her platform as dean of Harvard Law School as a platform to criticize Bush administration legal abuse.

In her Solicitor General hearings, she said she didn't believe there was a constitutional right to same-sex marriage, though she may have simply been describing existing precedent, and that she was not "morally opposed" to capital punishment. She did stand up against "Don't Ask Don't Tell" (until she didn't.)

Professor Lawrence Lessig, whom Kagan recruited back to Harvard Law School, recently wrote, "The part that everyone gets about Elena Kagan is Brilliance and Strength":

The questions are about her politics and resolve. Is she a Liberal, or in the language of the times, a progressive? Would she be a Triangulator, or a Justice fighting hard for what she believes?"

His Argument:

That Kagan "has developed a sixth sense for the strategy of an argument. She matches that insight with a toughness that can get what she wants done. That doesn't mean triangulating. It doesn't mean 'compromise.' It means finding a way to move others to the answer you believe is right." Glenn Greenwald, among others, demanded to see the evidence. Others saw reason to believe that she was more liberal on issues of executive power and habeas corpus.

Her ambiguous record may simply come down to how she construes the role of the judiciary:

Kagan's former boss at the Clinton White House Domestic Policy council said of her last year, "She doesn't approach these problems through an ideological lens. She's not a particularly political person, I don't think. She's a law professor first." Of her considerable similarities to President Obama in terms of worldview, she's been described as a Consensus Builder between warring factions.

Questions Have Been Raised About Her Record On Diversity:

She has, at various times in her career, infiltrated boys' clubs, playing poker and smoking cigars or "impress[ing] the male clerks by joining their pickup basketball games in the court's top-floor gym," as the Times puts it.

But as dean of Harvard Law school, she made 29 tenure-track hires, 23 of whom were white men, and five of whom were white women. Other than one Asian-American woman, Kagan did not hire a single professor of color in her six years as dean. (The numbers are slightly improved upon if you include non-tenure track and visiting professors, which the White House has.)

Her open opposition to "Don't Ask Don't Tell" in the same period will most likely be seized upon:

Kagan initially barred military recruiters entirely under the Law School's policies of not allowing discriminatory employers to operate on school grounds, but relented when a Supreme Court decision threatened federal funding for the entire University.

She wrote at the time, "I believe that policy is profoundly wrong - both unwise and unjust, and I look forward to the day when all our students, regardless of sexual orientation, will be able to serve and defend this country in the armed services."

Her Personal Life Has Already Been A Target:

From published rumors, strongly denied, that Kagan is a lesbian, to Internet abuse about her looks (comments here are just one example), Kagan has already been subject to severe sexism. On Google Trends this morning, "Elena Kagan husband" was #4; "Elena Kagan personal life" was #6."

Fun Facts:

Raised on New York's Upper West Side, Kagan's mother was a teacher, and her father was a community advocate and housing rights lawyer. She is a "literature lover who reread Jane Austen's 'Pride and Prejudice' every year." In her youth, she smoked cigarettes and sometimes cigars, and played poker. At Princeton, her circle included disgraced New York ex-governor Eliot Spitzer, and at Harvard Law and beyond, she was close to The New Yorker and CNN's Jeffrey Toobin. She has been known to be so focused on her work that she's left her car running overnight.
If confirmed, she would be the fourth New Yorker currently on the Court (and all of the female Justices would be New Yorkers) and would be the eighth Jewish Justice in the Court's history.

What You Can Expect For Her Confirmation Hearings:

Here's a good rundown of the possible vote breakdown in the Senate. The Obama administration is betting that there will be few surprises, since it's only been a year and change since hearings to confirm Kagan as Solicitor General.

There may be a struggle over how much of her work in the Clinton administration is protected by executive or attorney client privilege. Republicans are expected to attack her lack of judicial experience and "Ivory Tower" orientation, and possibly for opposing "Don't Ask Don't Tell".

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Obama Chooses Elena Kagan For U.S. Supreme Court

President Obama took a key step in cementing his judicial legacy Monday, nominating Solicitor General Elena Kagan to replace retiring Justice John Paul Stevens on the Supreme Court.

If confirmed, the 50-year-old Kagan will become the 112th Supreme Court justice. She would be the third woman on the nine-member bench and the fourth in the history of the court. Her confirmation also would mean that the Supreme Court would have no Protestant justices for the first time in its history. Kagan, who is Jewish, would join six Catholic and two Jewish justices; Stevens is Protestant.

Kagan, a native New Yorker, was widely reported to be the front-runner for the nomination. She was a finalist for the high court vacancy last year when Justice Sonia Sotomayor was selected to replace the retiring David Souter.

Kagan received her law degree from Harvard University, where she later served as dean of the law school. She previously served in the Clinton administration as associate White House counsel.

Kagan is a "trailblazing leader" who is "open to a broad array of viewpoints" and is a proven "consensus builder," Obama said at the White House.

Kagan, in turn, said she was "honored" and "humbled" by what she called "the honor of a lifetime."

"The court is an extraordinary institution," she said. It allows "all Americans ... to get a fair hearing and an equal chance at justice."

Obama decided on Kagan as his nominee on Sunday and called her around 8 p.m., a source close to the process said.

He did not have to look far when considering Kagan. As solicitor general, she is the administration's top lawyer before the Supreme Court and has argued several high-profile cases before the justices since taking the job in spring 2009.

"You have to admit, Elena Kagan is a brilliant woman," Sen. Orrin Hatch, a Republican on the Judiciary Committee, said during a radio interview a year ago when Kagan was being vetted for a high court seat. "She is a brilliant lawyer. If [Obama] picks her, it is a real dilemma for people," especially conservatives.

"And she will undoubtedly say that she will abide by the rule of law."

Her confirmation hearings for the solicitor general job could offer a preview of what she can expect from both Democrats and Republicans. Many saw it as a dress rehearsal of sorts for a high court job.

GOP Sen. Lindsey Graham told Kagan she presented a "positive impression." Democrats were similarly enthused.

With that endorsement, she won confirmation for her current job by a 61-31 vote.

A number of conservative groups were less enamored.

"Among Supreme Court nominees over the last 50 years or more, Kagan may well be the nominee with the least amount of relevant experience," said Ed Whelan, president of the Ethics and Public Policy Center, former law clerk for Justice Antonin Scalia, and former counsel to the Senate Judiciary Committee.

Kagan had never argued a case before the Supreme Court or any appeals court before she became solicitor general about a year ago.

"Solicitor General Kagan has been nominated with no judicial experience, a mere two years of private law practice, and only a year as solicitor general of the United States," said David McIntosh, co-founder of the Federalist Society -- a conservative and libertarian legal group -- and former congressman from Indiana. "She is one of the most inexperienced nominees to the U.S. Supreme Court in recent memory."

Kagan's position on gays in the military is virtually certain to generate controversy during her confirmation hearings. She has been strongly criticized by conservatives for her efforts to block military recruiters from Harvard because of the military's "don't ask, don't tell" policy.

The policy, first enacted during the Clinton administration but opposed by Obama, prohibits homosexuals from serving openly in the armed forces.

While serving as dean at Harvard Law, Kagan said she "abhorred" the military's "discriminatory recruitment policy." She called it "a profound wrong -- a moral injustice of the first order."

Kagan supported other schools challenging a federal law requiring them to give recruiters equal access or face the loss of federal funding. The Supreme Court unanimously upheld the law in 2006.

Some liberal organizations, on the other hand, have expressed concern over Kagan's views on executive power. As chief defender of the administration's anti-terrorism strategy, Kagan has articulated a more robust defense of the White House than many civil rights and human rights groups would like.

Observers on both sides of the political aisle have noted that Kagan has a relatively short paper trail compared to other recent Supreme Court nominees.

Kagan grew up in a Jewish household on the Upper West Side of Manhattan. She went to Princeton University and Harvard Law School. She served as a law clerk for federal judge Abner Mikva and then for Justice Thurgood Marshall on the high court.

In her 1986 job application to Marshall, she matter-of-factly told the civil rights pioneer, "I would be honored to serve as your clerk." The nation's first African-American justice affectionately called the diminutive Kagan "Shorty."

Kagan later went into teaching, starting at the University of Chicago, where one of the part-time faculty was Obama. Also teaching at the time was Diane Wood, who later became a federal judge and also was a finalist for the current high court vacancy. Kagan and Wood were among the few women on the full-time faculty at that time.

President Clinton later named Kagan associate White House counsel and then appointed her to the influential Domestic Policy Council, where she earned a reputation for articulate and well-reasoned statements on tricky political issues. She was the administration's point person on passing anti-tobacco legislation, negotiating in 1998 with Republican Sen. John McCain to give the federal government the authority to control cigarettes, as it does pharmaceuticals and medical devices.

Clinton picked her in 1999 for the powerful U.S. Court of Appeals for the D.C. Circuit. But no Senate confirmation hearings were held, and the nomination lapsed. The seat was later filled by John Roberts, who quickly used the appointment as a springboard to chief justice.

Named Harvard's dean in 2003, Kagan earned a reputation for soothing longstanding tensions over a perceived liberal tilt to the faculty and curriculum.

She began pushing for the appointment of conservative professors, including Jack Goldsmith, who had been a lawyer in President George W. Bush's Justice Department. Such hires eased ideological unrest on the Harvard campus.

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Sources: CNN, Jezebel, MSNBC, NY Times, Wikipedia, Youtube, Google Maps

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