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Justice Elena Kagan?

Obama's nominee is well qualified but will face stiff opposition

Justice Elena Kagan?

WASHINGTON, D.C.—For more than a month, ever since Supreme Court Justice John Paul Stevens announced that he would be stepping down from his high court position as soon as the current Court term ends, one name has been at the top of President Obama's list of possible replacements: Elena Kagan, the solicitor general and former dean of the Harvard Law School.

While Kagan may never have been a judge—that's the point most of the right-wing/religious objectors to her nomination have been quick to cite (see below for the irony)—her background in and contact with the judiciary has been extensive. Upon graduating from Harvard Law in 1986, Kagan clerked for moderate Judge Abner Mikva of the D.C. Circuit Court of Appeals. After that, she clerked for the late Justice Thurgood Marshall during the Court’s 1987-'88 term. In 1991, she joined the faculty of the University of Chicago, teaching administrative and constitutional law at the same time as fellow law professor Barack Obama.

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In 1995, she became associate White House counsel for President Bill Clinton, and in ’97 was named deputy assistant to the president for domestic policy, and deputy director of the Domestic Policy Council. She did such a good job that in 1999 Clinton nominated her for an appeals judgeship on the D.C. Circuit—but that nomination never even got a hearing.

"There's an irony with Kagan's nomination," noted First Amendment attorney and constitutional scholar Reed Lee. "It's a pleasing rectification of a historical slight. Clinton had nominated her for a seat on the D.C. Circuit; I believe it was the Mikva vacancy, and she clerked for Mikva. And Orrin Hatch, who always says that he generally believes the president should get the judges the president wants, delayed any hearings, and this was a 1999 appointment; I think sometime on the summer. There was lots of time left in the Clinton administration, but [Hatch] never held any confirmation hearings, so that nomination lapsed. Guess who took that seat? John Roberts, now our Chief Justice. So there is a certain irony in all of that coming to a close with both of them sitting on the court and both of them having an equal vote, and there's a certain satisfaction in that."

After failing to get a Judiciary Committee hearing, Kagan returned to academic life, first as a visiting professor to the Harvard Law School, then later as a permanent faculty member, receiving tenure in 2001 and becoming dean in 2003. Obama had previously considered Kagan for the high court to replace the retiring David Souter, but eventually nominated Second Circuit judge Sonia Sotomayor instead.

Conservatives have already begun marshalling their forces to protest Kagan's nomination, pointing out that she was one of those faculty members challenging the "Solomon Amendment," a law which required schools receiving federal money to allow military recruitment on campus. In 2004, Kagan, along with 53 other faculty members, signed an amicus brief in support of an organization, the Forum for Academic and Institutional Rights (FAIR), which was challenging the Solomon Amendment on constitutional grounds, and for several months military recruiters were banned from the school grounds, although existing veterans groups were allowed to recruit as part of their regular activities.

However, when the federal government (read: Bush administration) threatened to withhold all federal aid to Harvard, Kagan relented, writing at the time, "I have said before how much I regret making this exception to our antidiscrimination policy. I believe the military’s discriminatory employment policy is deeply wrong—both unwise and unjust. And this wrong tears at the fabric of our own community by denying an opportunity to some of our students that other of our students have. The importance of the military to our society—and the great service that members of the military provide to all the rest of us—heightens, rather than excuses, this inequity. The Law School remains firmly committed to the principle of equal opportunity for all persons, without regard to sexual orientation. And I look forward to the time when all our students can pursue any career path they desire, including the path of devoting their professional lives to the defense of their country."

Eventually, the Supreme Court upheld the Solomon Amendment, despite FAIR's challenge and an amicus brief signed by Kagan and 39 other law professors.

Kagan has also opposed using the military tribunal system to adjudicate so-called "enemy combatants, writing with others in 2005, "To put this most pointedly, were the Graham amendment [to the Defense Authorization bill which would have denied federal courts jurisdiction over habeas corpus petitions filed by "enemy combatants"] to become law, a person suspected of being a member of al-Qaeda could be arrested, transferred to Guantanamo, detained indefinitely (provided that proper procedures had been followed in deciding that the person is an 'enemy combatant'), subjected to inhumane treatment, tried before a military commission and sentenced to death without any express authorization from Congress and without review by any independent federal court. The American form of government was established precisely to prevent this kind of unreviewable exercise of power over the lives of individuals."

Also on the horizon: claims that Kagan is a closeted lesbian, even though as solicitor general she opposed repealing the law requiring the military to adopt a "don't ask, don't tell" policy regarding gay service members.

"CBS News reported that President Obama's new Supreme Court nominee Elena Kagan will be the 'first openly gay justice,' pleasing much of Obama's liberal base," wrote fired military Chaplain Gordon James Klingenschmitt in an email to conservatives. "But after complaints by an anonymous White House staffer that parts of the report were not public, the CBS reporter updated the post to say 'I have to correct my text here to say that Kagan is apparently still closeted—odd, because her female partner is rather well known in Harvard circles.'"

No other media has yet been able to substantiate Klingenschmitt's claim of Kagan's sexuality.

Check back to this site for further discussion of Kagan's nomination as it progresses.






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Mark Kernes

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