RNLA Special Judicial Update
May 10, 2010
The RNLA is sending this Special Judicial Update to all current and former RNLA Members and posting on The Republican Lawyer Blog to provide you with information on President Obama's choice to replace Justice John Paul Stevens, Solicitor General Elena Kagan.
Despite being in the spotlight for some time, there is not an abundance of information on Kagan's views on important matters relevant to the Supreme Court. Today, the RNLA released a statement calling for Kagan to thoroughly answer questions at her confirmation hearing. More below.
I. Kagan is not a "Moderate"
It is worth mentioning at the start, however, that while many Obama Administration supporters have attempted to paint her as a moderate who should be considered a consensus nominee, she is not a moderate. She works for Obama, served in the Clinton Administration and was on the 1988 Dukakis Campaign. click here for a profile on Kagan, including information on her education and career in academia and in the Clinton administration.
II. Kagan Herself Advocated Candor for Judicial Nominees and for Hearings to be Substantive: Will she live up to her own standard?
In 1995, Kagan made her views well known on how confirmation hearings should be conducted following her time as a staff lawyer on the Senate Judiciary Committee during Justice Ginsburg's confirmation hearings. Courtesy of ABC News:
Kagan argues that the Bork hearing should be a "model" for all others, because even though it ended in the candidate's rejection, the hearings presented an opportunity for the Senate and the nominee to engage on controversial issues and educate the public.
"The real 'confirmation mess' " she wrote, "is the gap that has opened between the Bork hearings and all others."
"Not since Bork," she said, "has any nominee candidly discussed, or felt a need to discuss, his or her views and philosophy."
"The debate focused not on trivialities," she wrote, but on essentials: "the understanding of the Constitution that the nominee would carry with him to the Court."
One of the panelists at the recent RNLA Policy Conference, Ed Whelan, president of the Ethics and Public Policy Center, former law clerk for Justice Scalia, and former counsel to the Senate Judiciary Committee said the following on the Kagan Standard:
Elena Kagan has written that the confirmation process for Supreme Court justices 'takes on an air of vacuity and farce' when the Senate fails 'to engage nominees in meaningful discussion of legal issues.' She's argued for 'the essential rightness -- the legitimacy and the desirability -- of exploring a Supreme Court nominee's set of constitutional views and commitments.
It's especially important that the Senate hold Kagan to the Kagan Standard. Among Supreme Court nominees over the last 50 years or more, Kagan may well be the nominee with the least amount of relevant experience. She's been extremely guarded about her views, with the exception of gay rights, where she has been vehement in opposing federal laws she doesn't like and has worked as Solicitor General to undermine those laws. The Senate needs to explore carefully whether Kagan would indulge her own values and policy preferences as a justice.
Senator Arlen Specter (D-PA) will be one person to watch during Kagan's confirmation hearings. Specter led the charge in the Judiciary Committee in voting against Kagan for Solicitor General because she miserably failed the Kagan Standard. As Kirk Victor at The Ninth Justice writes:
Specter concluded that the Harvard Law School dean had ducked questions that he saw as important for senators to cast an informed vote on her nomination. He voted against her confirmation.
That scenario puts the ever-irascible Specter in an unusual spot since he switched parties last year to become a Democrat. Today, he faces a difficult bid to be re-elected to a sixth term. Might he seriously consider a vote against President Obama's nominee to the Supreme Court?
Specter, as former Ranking Republican on the Senate Judiciary Committee, long argued that nominees should be less evasive in their confirmation hearings. Specter used that reasoning in voting against Kagan. The left is now arguing that the handful of Republicans who joined Democrats in voting for Kagan's nomination for Solicitor General should also vote for her confirmation to the Supreme Court. Would the same logic apply to those who voted against her, including for Senator Specter's vote? Her tenure as Solicitor General has given Senators little more to base a vote on than before and shouldn't a position that carries a lifetime appointment be held to an even higher standard than the Solicitor General? Wouldn't that give those who voted "nay" on Kagan the first time around have even more cover to do so this time? Stay tuned to see how Specter rationalizes his vote. One thing is for certain, Kagan was not nearly as forthright in her hearings for Solicitor General as she urged back in 1995 in citing the Bork hearing as a model for nominees to follow.
III. More on Republican Supporting Kagan for Solicitor General and Senator Specter
Kagan's nomination could cost Specter the Senate Democrat Primary nod:
The Republicans who voted "yes" on Kagan last spring include: Oklahoma Sen. Tom Coburn, Maine Sens. Olympia Snowe and Susan Collins, New Hampshire Sen. Judd Gregg, Arizona Sen. Jon Kyl, Utah Sen. Orrin Hatch and Indiana Sen. Dick Lugar.
No Democrat voted "no" but Sen. Arlen Specter (Pa.) who switched from Republican to Democrat roughly a month after the vote cast a "no" on Kagan. And, yes, you can expect that to become major issue in his May 18 primary fight against Rep. Joe Sestak (D).
Democrats are going to cite those seven Republicans as "should-be" supporters of Kagan, however as Senator Kyl explained at the time when he voted for Kagan for Solicitor General:
I would like to make clear that my vote for Dean Kagan is only for the position of Solicitor General, and my vote does not indicate how I would vote for her if she were nominated for any other position, especially a position that is a lifetime appointment. Specifically, according to numerous news accounts, Dean Kagan is expected to be considered for nomination to the Supreme Court if an opening were to occur during the Obama administration. If she were nominated, her performance as Solicitor General would be critical in my evaluation of her suitability for the Supreme Court.
IV. Goldman Sachs Connection
Another area of scrutiny for Kagan will be her ties to Goldman Sachs, the banking and investment firm now facing a civil fraud lawsuit courtesy of the SEC:
A top prospect for the Supreme Court was a paid member of an advisory panel for the embattled investment firm Goldman Sachs, federal financial disclosures show.
Solicitor General Elena Kagan was a member of the Research Advisory Council of the Goldman Sachs Global Markets Institute, according to the financial disclosures she filed when President Obama appointed her last year to her current post. Kagan served on the Goldman panel from 2005 through 2008, when she was dean of Harvard Law School, and received a $10,000 stipend for her service in 2008, her disclosure forms show.
Position on Military Recruiters at Harvard
For the most part, Republicans have reserved judgment on Kagan. This is mainly because we don't know much about her views on most controversial legal issues. However, Ed Whelan wrote a three part (Part 1, Part 2, Part 3) analysis of Kagan when she was nominated for Solicitor General. One of Whelan's main points of contention was "Kagan's opposition to the Solomon Amendment, the federal law that denies federal funding to an institution of higher education that 'has a policy or practice . . . that either prohibits, or in effect prevents', the military 'from gaining access to campuses, or access to students .
. on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer.'" Whelan has more here on Kagan's opposition to the Solomon Amendment.
Even some liberals have criticized Kagan for her position on the Solomon Amendment. Peter Beinart at Daily Beast:
If Solicitor General Elena Kagan gets the nod, conservatives will beat the hell out of her for opposing military recruitment on campus when she was dean of Harvard Law School. And liberals should concede the point; the conservatives will be right. […]
The United States military is not Procter and Gamble. It is not just another employer. It is the institution whose members risk their lives to protect the country. You can disagree with the policies of the American military; you can even hate them, but you can't alienate yourself from the institution without in a certain sense alienating yourself from the country. Barring the military from campus is a bit like barring the president or even the flag. It's more than a statement of criticism; it's a statement of national estrangement.
Unfortunately, her views on this matter may display Kagan's willingness to substitute sound legal reasoning for her preferred policy positions. This is best exemplified by the fact that Kagan (as a Professor not Dean) signed onto an amicus brief on the losing side of a 8-0 Supreme Court decision on the matter.
VI. Other Views?
Powerline also has an interesting piece on Kagan's record (or lack thereof), in "The Stealth Law Professor."
With such a nonexistent record, The Daily Beast's Paul Campos ominously asks if Kagan is "The Next Harriet Miers?"
VII. Hiring Conservatives as Harvard Law Dean
Part of the basis for the statement of Kagan as a moderate is that she was known for fostering some goodwill with conservatives such as Ken Starr during her time as Harvard Law School Dean where she served from 2003 until she became Solicitor General in 2009. An article in The Wall Street Journal, profiles Kagan's Harvard tenure and how she managed to appoint some conservative/libertarian professors over the objections of the extreme left-wing faculty there. However, many point to the fact that Kagan's record at Harvard wasn't as favorable to conservatives as is touted by those on the left. Wendy Long at National Review's Bench Memos explains:
Only 3 out of the 43 professors Kagan hired are conservative- or libertarian-leaning: Jack Goldsmith, John Manning, and Adrian Vermeule. That means only 7% of Kagan's faculty hires were conservatives.
Not exactly a huge percentage. Overall, the Harvard Law faculty only has, at most, 8 conservative- or libertarian-leaning professors. They are: Charles Fried, Mary Ann Glendon, Allen Ferrell, Einer Elhauge, Hal Scott, plus Goldsmith, Manning, and Vermeule.
That means only 8% of the faculty under Kagan was conservative. Again, not exactly huge numbers when considered in percentage terms.
Also, Fried and Glendon are approaching retirement. Once they retire, the net effect of Kagan's supposed conservative hiring binge will have been to increase the number of conservative faculty members at Harvard by one person.
Please also click here for a great read by Carrie Severino, a former Harvard law student, who was a member of the Federalist Society at Harvard when Kagan was Dean. Severino argues, "Kagan's well-known liberal positions were what made her openness to conservatives and libertarians on campus possible."
In the short term, Kagan confirmation's would result in her not voting on many cases in her first few years due to recusal obligations as a result of her service as Solicitor General. SCOTUSBlog and Bench Memos have both discussed Kagan's recusal obligations.
Another minus for Kagan may also be how the sitting Supreme Court justices have reacted to her during her six oral arguments before the Court. Salon.com writes, "the Solicitor General's appearances before the high court have been marked by unusually brusque treatment."
Those six arguments highlight her inexperience. As Michelle Malkin argued in 2009 when Kagan was first rumored to be up for the Supreme Court vacancy that was ultimately given to Justice Sotomayor:
Dean Kagan's nomination to the Supreme Court would be concerning given her complete lack of judicial or appellate experience. She has never been a judge or even argued a case in a court of appeals. It is difficult to see how her experience fundraising for Harvard Law School qualifies her for a seat on the Nation's high court.
Lastly, Kagan will have an interesting effect on the court's diversity:
Kagan would be the fourth woman to serve on the Supreme Court, following current Justices Ruth Bader Ginsburg and Sonia Sotomayor and retired Justice Sandra Day O'Connor.
She would be the third Jewish justice along with six Catholics. With Stevens' retirement, the court will have no Protestants, the most prevalent denomination in the United States.
IX. Action Items
If you are interested in regularly receiving these Judicial Updates, please email Matt Suermann at suermann@RepublicanLawyer.net. If you are interested in volunteering to research and write on Solicitor General Kagan's nomination and other judicial issues, please email Justin Riemer, RNLA Programming Director, at Riemer@RepublicanLawyer.net.