Kagan's `Thin' Legal Record Hints She Will Ally With High Court Democrats

Elena Kagan’s supporters say they are confident she will join the U.S. Supreme Court’s liberal wing -- even if she lacks the paper trail to prove their point.

Kagan, the U.S. solicitor general nominated by President Barack Obama yesterday to the high court, would be the first non-judge to join the court in 39 years. With no judicial opinions and only a handful of law review articles to her credit, she has largely avoided taking public positions on high- profile issues.

Supporters and detractors alike are nonetheless seizing on her stints in the Clinton and Obama administrations as evidence that she would largely track the views of the president and retiring Justice John Paul Stevens. They also point to Kagan’s characterization of the military’s anti-gay policy as a “moral injustice of the first order.”

“Elena is clearly a legal progressive,” said Ron Klain, Vice President Joe Biden’s chief of staff and Kagan’s classmate at Harvard Law School in the 1980s. “She’s got a pragmatic perspective.”

Obama yesterday made Kagan, 50, his second Supreme Court nominee, potentially giving the court three female members for the first time. The president called Kagan a “trailblazing leader” who became the first woman to lead Harvard Law School and then the first female solicitor general.

Photographer: Andrew Harrer/Bloomberg

Elena Kagan, U.S. solicitor general. Close

Elena Kagan, U.S. solicitor general.

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Photographer: Andrew Harrer/Bloomberg

Elena Kagan, U.S. solicitor general.

“Her general track record, which admittedly is somewhat thin, indicates that she’ll agree with them on gay rights, abortion, affirmative action,” said Michael Carvin, a lawyer at Jones Day who worked in the Reagan administration’s Justice Department.

Experience Questioned

Senate Republicans yesterday questioned whether Kagan has enough courtroom experience to serve on the court. Republicans also criticized her for opposing military recruiting on the Harvard campus because of the services’ gay ban.

Even so, Democrats and independents hold 59 seats in the Senate and need help from only one Republican to ensure a floor vote on the nomination.

“I would be surprised if she’s not confirmed,” said Jay Sekulow, chief counsel of the Washington-based American Center for Law and Justice, a religious-rights group that says the nomination raises questions about “judicial activism.”

Obama’s 2009 nomination of Sonia Sotomayor to the court won confirmation 68-31, with nine Republicans supporting her. She usually votes with the other two Democratic nominees to the court, Justices Ruth Bader Ginsburg and Stephen Breyer, both appointed by President Bill Clinton.

In many respects, Kagan’s background mirrors that of Chief Justice John Roberts, a 2005 George W. Bush appointee who has led the court in curbing racial preferences and overturning campaign-finance restrictions.

Roberts Parallel

Roberts had been an appellate judge for only two years when Bush elevated him to the nation’s highest court, and his rulings on the lower court only hinted at his judicial philosophy.

His resume and executive-branch service provided the clearest clues. He was a law clerk for his conservative predecessor as chief justice, William Rehnquist, and worked as a lawyer in the Reagan administration.

Documents released during the Senate confirmation process revealed that, in the latter capacity, Roberts advocated for limits on civil rights laws designed to protect women and minorities.

Kagan clerked for Justice Thurgood Marshall, a proponent of affirmative action and opponent of the death penalty. Kagan considers Marshall, the nation’s first black justice, “as her hero,” Obama said yesterday.

Memo Rejected

During her confirmation hearing to be solicitor general, Kagan distanced herself from a memo she wrote to Marshall while clerking for him in 1987. She wrote that religious organizations shouldn’t be allowed to take part in a program designed to discourage teen pregnancy because they inevitably would be engaging in religious teaching.

Kagan said she recently read the memo for the first time in 20 years. “And I looked at it, and I thought, ‘That is the dumbest thing I’ve ever heard,’” she said.

As a professor, first at the University of Chicago Law School and then at Harvard Law School, Kagan developed an expertise in the area of presidential power. In a 69,000-word law review article in 2001, she argued for stronger presidential control over some administrative agencies.

‘Governing Agenda’

Although that position is more often associated with conservative scholars, Kagan put a liberal gloss on it. She said that Clinton’s assertion of authority over agencies had served “a distinctly activist and pro-regulatory governing agenda.”

The article didn’t question, as some conservatives have, the constitutionality of so-called independent agencies. Those bodies, which include the Federal Reserve Board and the Securities and Exchange Commission, are largely free from presidential oversight.

Last year, arguing against Carvin, Kagan defended the constitutionality of the accounting oversight board set up in 2002 in the aftermath of the Enron Corp. and WorldCom Inc. collapses.

“This notion that she’s an executive-power advocate is completely wrong,” said Carvin.

As with Roberts, documents released during the confirmation process are likely to shed new light on Kagan’s behind-the- scenes work as an attorney and domestic policy adviser in the Clinton White House.

Late-Term Abortions

Kagan in 1997 advised Clinton to support two Democratic proposals that would have limited late-term abortions. Kagan told the president that the measures, crafted as alternatives to a more restrictive Republican bill, would “prevent Congress from overriding your veto” on that legislation.

Clinton eventually vetoed the Republican bill, and supporters failed to muster enough votes to override him.

Since being nominated as solicitor general, Kagan has disappointed liberals with some of her positions on terrorism. She urged the Supreme Court to block Guantanamo Bay inmates who weren’t considered a threat from being released into the U.S.

“The people on the left are not getting everything they would like,” said Geoffrey Stone, a University of Chicago Law School professor. Instead, the president “has appointed someone that fits very well with what he wants to see on the court.”

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net.

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