Republicans Step Up Attacks on Kagan Memos for Justice Marshall

Republicans stepped up criticism of U.S. Supreme Court nominee Elena Kagan, saying memos she wrote as a law clerk for Justice Thurgood Marshall are evidence of judicial activism.

Kagan’s clerkship for Marshall in 1987 and 1988 will be a focus of her confirmation hearings, said Senator Jon Kyl of Arizona. He is a member of the Judiciary Committee that will hold hearings on Kagan’s nomination beginning June 28.

Her notes to Marshall on which cases the court should review “reveal time and time again an effort to reach a certain result in a case,” Kyl said. Senator Jeff Sessions, ranking Republican on the Judiciary Committee, also said at a news conference with Kyl today her views were “results-oriented.”

Obama nominated Kagan, 50, to replace retiring Justice John Paul Stevens on the nine-member high court. A former dean of Harvard Law School, Kagan is now U.S. solicitor general, the Obama administration’s chief courtroom lawyer.

Democrats, who control 59 of the Senate’s 100 seats, want to have Kagan confirmed well before the next Supreme Court term begins in October.

Kyl and Sessions pointed to a Kagan memo to Marshall in which she said she was “not sympathetic” to an individual’s claim that the District of Columbia’s firearms law violated his constitutional right to keep and bear arms.

Sting Operation

The Republicans also distributed a memo in which Kagan said she was “a bit shocked” by a government sting operation that used the U.S. Postal Service to catch child sex predators. She said a federal appeals court may have been right to uphold the operation and the court should abstain from review. But she said Marshall should still order the government to file a legal brief in the matter.

“I think it indicates a developing lawyer who has a political bent to their legal work,” Sessions said of the memos.

At her Senate confirmation hearing to be solicitor general, Kagan said her memos were intended to reflect Marshall’s views. She called herself a “27-year-old pipsqueak” working for a “90-year-old giant in the law.”

Marshall asked his clerks “to channel him and to think about what cases he would want the court to decide,” Kagan said then. “And in that context, I think all of us were right to say, ‘Here are the cases which the court is likely to do good things with from your perspective, and here are the ones where they’re not.’”

No Judicial Record

With no judicial record of Kagan’s to examine, lawmakers want to look into memos and e-mails from earlier in her career.

Other documents of interest are from her tenure as a White House associate counsel in 1995 and 1996 and as a deputy assistant for domestic policy from 1997 to 1999, when Bill Clinton was president.

The Clinton Library tomorrow will release another 42,000 pages of documents after issuing a first batch a week ago. Employees of the National Archives are helping to review the papers.

The documents will include those from Kagan’s time in the White House counsel’s office and related to her 1999 nomination to the U.S. Court of Appeals for the D.C. Circuit, said Susan Cooper, a spokeswoman for the National Archives. A Republican- led Senate never acted on that nomination.

A final round of documents will be released next week, including e-mails from her White House tenure, Cooper said.

To contact the reporter on this story: Laura Litvan in Washington at

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