EMARKS ON THE

OMINATION OF

LENA

AGAN TO BE AN

SSOCIATE

USTICEOF THE

UPREME

OURT OF THE

NITED

TATES

U.S.

ENATOR

UGUST

2010

Elena Kagan is intelligent, well spoken, personable, and schooled in the law. She isskilled in the art of argument—perhaps to a fault. Ignoring her own advice in the now famousUniversity of Chicago law review article,

she did not testify meaningfully before the JudiciaryCommittee, concealing and disguising her views, and playing the same game of “hide the ball”as those who went before her, albeit with more skill than some.Probably because she criticized the practice so directly,

many expected her to set adifferent standard. Others have asked whether Judiciary Committee hearings have been renderedlargely free of substance and what, if anything, can be done about it. Former JudiciaryCommittee Chairman Arlen Specter, who lamented that Ms. Kagan had not during her testimony“answered much of anything,”

said this:It would be my hope that we could find someplace between voting no and havingsome sort of substantive answers. . . . But I think we are searching for a way howsenators can succeed in getting substantive answers, as you advocated in the

Chicago Law Review

, short of voting no.

I confess that, like Senator Specter, I don’t know how we can force nominees to be forthcomingexcept through our votes.

Elena

Kagan,

Confirmation Messes, Old and New

, 62 U. Chi. L. Rev. 919, 926 (1995).

“When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation processtakes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees orappropriately educating the public. Whatever imperfections may have attended the Bork hearings pale in comparisonwith these recent failures.” Elena

Kagan,

Confirmation Messes, Old and New

, 62 U. Chi. L. Rev. 919, 926 (1995).

Senate Judiciary Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to be an Associate Justice of the U.S. Supreme Court, Day 3

, CQ Cong. T. (June 30, 2010) (questions of Senator Specter).Senator Specter also wrote in a

USA Today

column that “Supreme Court nominee Elena Kagan did little to undo theimpression that nominating hearings are little more than a charade in which cautious non-answers take the place of substantive exchanges” and “[o]n balance, Kagan did little to move the nomination hearings from the stylized ‘farce’(her own words) they have become into a discussion of substantive issues that reveal something of the nominee’s judicial philosophy and predictions.” Arlen Specter,

Specter: ‘Kagan Did Just Enough To Win My Vote’

, USAToday, July 14, 2010, at http://www.usatoday.com/news/opinion/forum/2010-07-15-column15_ST1_N.htm.

‐

To be clear, my threshold for supporting a nominee does not require answering how onewould vote on issues sure to come before the Court, nor necessarily expressing agreement ordisagreement with decisions or Court opinions. It is possible to learn much about a nominee’sapproach to judging without committing one to a specific position in future cases.What we should expect, however, is candor and a willingness to honestly discussbackground, general constitutional principles, approaches to judging, and writings and matterswithin the nominee’s background that bear on the nominee’s suitability for the bench.In explaining why I could not support now-Justice Sotomayor, I said I thought she wasdisingenuous with the Judiciary Committee.

Obviously, reaching such a conclusion precludessupport, notwithstanding other qualifications for the position.Reluctantly, after an analysis of her testimony, weighed with her past writings,statements, and actions, I have reached the same conclusion regarding Elena Kagan.Exhibit A is her insistence on redefining her position on military recruiting on theHarvard campus. Her “separate but equal” defense and attempt to downplay the steps she took to undermine the legal policy of “don’t ask, don’t tell” were, ultimately, unbelievable.

It isalmost unfathomable, for example, that someone with Ms. Kagan’s considerable legal acumencould have, as she asserted, “always thought that we were acting in compliance” with theSolomon Amendment.

Ms. Kagan tried to convince the Judiciary Committee that her actions against the militarywere a justifiable response to a policy that she viewed as discriminating against homosexuals.

But, as Senator Sessions noted, her stand against homosexual discrimination was not universal.She did not speak out, for example, when Harvard accepted $20 million from a member of theSaudi royal family to establish a center for the study of Sharia law, even though under Sharia law“sexual activity between two persons of the same gender is punishable by death or flogging.”

Her decision to punish the military for a policy adopted by Congress is especially perplexing,given her failure to express concern over, or take action against, the establishment of a center topromote a legal system linked to abuses of homosexuals, women, and others.

155 Cong. Rec. S8822 (daily ed. Aug. 5, 2009) (statement of Senator Kyl) (“[Judge Sotomayor’s] sworn testimonywas evasive, lacking in substance, and, in several instances, incredibly misleading.”).

For example, Ms. Kagan stated during her testimony that the “military at all times . . . had full and good access” toHarvard Law School and that the veterans association provided the “same” services as the Office of Career Services.These assertions are belied by documents that are now in the public record.

Senate Judiciary Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to be an Associate Justice of the U.S. Supreme Court, Day 2

, CQ Cong. T. (June 29, 2010) (responding to Senator Session’squestions).

Senate Judiciary Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to be an Associate Justice of the U.S. Supreme Court, Day 2

, CQ Cong. T. (June 29, 2010) (responding to Senator Session’squestions).

156 Cong. Rec. S4969 (daily ed. June 16, 2010) (quoting an Obama State Department report concerning SaudiArabia and the Sharia law concept).

‐

Exhibit B is her astonishing redefinition of what she meant in her effusive praise forJustice Marshall’s “vision” of the role of the Court, presumably to avoid the obvious conclusionthat she agreed with his activist approach to judging. Justice Marshall had an enormousinfluence on our jurisprudence starting with his advocacy before—and most especially with—

Brown v. Board of Education

But no serious student would argue that he didn’t try to push thelaw as far as he could in furtherance of his philosophy. Indeed, consider the comments of another former Marshall clerk, liberal law professor Cass Sunstein, who now serves in theObama Administration: “A serious commitment to Marshall’s vision [of constitutional liberty]would entail an extraordinary judicial role, one for which courts are quite ill-suited.”

Sunsteinhas also acknowledged that “[e]ven if the best substantive theory calls for something likeMarshall’s vision, institutional considerations would argue powerfully against it.”

Ms. Kagan’sattempt to define Justice Marshall’s philosophy as meaning only that he wanted everyone to haveequal access to the courts is—there is no other word for it—disingenuous.Because Ms. Kagan apparently embraces his philosophy but feared publicacknowledgement of that would confirm the concern that she would be a “results oriented” judge, she fudged. In so doing, she confirmed the suspicion and compounded the problem withdeceptive testimony.Exhibit C is the explanation of several of her bench memos to Justice Marshall insistingthat they did not contain her views, but a “channeling” of his.

Ms. Kagan offered thisexplanation for a memo categorizing litigants as “good guys” and “bad guys,”

a memo statingthat the government was “for once on the side of the angels,”

and a memo expressing fear thatthe Court might “create some very bad law on abortion and/or prisoners’ rights.”

Readingthese memos, one gets the sense that Ms. Kagan was not simply “channeling” her boss, but wasinstead expressing her own personal policy views on matters before the Court, and, that they hadas much to do with who the litigants were as what the issues were.

347 U.S. 483 (1954).

Cass R. Sunstein,

On Marshall's Conception of Equality,

44 S

TAN

. 1267, 1273 (1992).

Cass R. Sunstein,

On Marshall's Conception of Equality,

44 S

TAN

. 1267, 1274 (1992).

Senate Judiciary Committee Holds Hearing on the Nomination of Solicitor General Elena Kagan to be an Associate Justice of the U.S. Supreme Court, Day 1

, CQ Cong. T. (June 28, 2010) (responding to Senator Kyl’squestions);

Confirmation Hearings on the Nominations of Thomas Perrelli Nominee to be Associate AttorneyGeneral of the United States and Elena Kagan Nominee to be Solicitor General of the United States: Hearing Before the Senate Comm. on the Judiciary

, 111th Cong., 1st Sess. (Feb. 10, 2009) (S. Hrg. 111-361), at 99(statement of Elena Kagan).

Memorandum from Elena Kagan on

Cooper v. Kotarski

, 487 U.S. 1212 (1988),

cert. granted

, to Justice ThurgoodMarshall, 86-1813 (Aug. 5, 1987) (on file with the Library of Congress).

Memorandum from Elena Kagan on

United States v. Kozminski

, 487 U.S. 931 (1988),

cert. granted

, to SupremeCourt Chief Justice Thurgood Marshall, 86-2000 (Aug. 5, 1987) (on file with the Library of Congress).

Memorandum from Elena Kagan on