Sunday, May 16, 2010

Elena Kagan, President Obama, and the Dire Necessity of Integrity and Vision on the Supreme Court

Washington -- President Barack Obama has nominated Solicitor General Elena Kagan to the Supreme Court, saying she will demonstrate independence, integrity and passion for the law.

If confirmed by the Senate, Kagan will become the third woman on the high court. Obama introduced her today in the White House's East Room. He called her "my friend" and one of the nation's foremost legal minds.

The selection of Kagan came after nearly a monthlong process of consideration. Obama always had Kagan on his short list but still considered a broader group of candidates, interviewing four.

The president informed Kagan that she would a Supreme Court nominee on Sunday night. He then called the three federal judges he did not choose for the position, Diane Wood, Merrick Garland and Sidney Thomas.

Never a judge, Kagan is known as sharp and politically savvy and has enjoyed a blazing legal career. She was the first female dean of Harvard Law School, first woman to serve as the top Supreme Court lawyer for any administration, and now first in Obama's mind to succeed legendary liberal Justice John Paul Stevens.

At 50 years old, Kagan would be the youngest justice on the court, which would give her the opportunity to extend Obama's legacy for a generation.

Kagan must first win Senate confirmation. A source close to the selection process said a central element in Obama's choice was Kagan's reputation for bringing together people of competing views and earning their respect.

Republicans have shown no signs in advance that they would try to prevent a vote on Kagan, but they are certain to grill her in confirmation hearings over her experience, her thin record of legal writings and her objections to the military's policy about gays.
When she was confirmed as solicitor general in 2009, seven Republicans backed her: Sens. Tom Coburn of Oklahoma, Susan Collins of Maine, Judd Gregg of New Hampshire, Orrin Hatch of Utah, Jon Kyl of Arizona, Richard Lugar of Indiana and Olympia Snowe of Maine.

Kagan came to the fore as a candidate who had worked closely with all three branches of government, a legal mind with both a sense of modesty and sense of humor. The source spoke on condition of anonymity to discuss factors that led to Kagan's impending nomination.

Kagan has clerked for Thurgood Marshall, worked for Bill Clinton and earned a stellar reputation as a student, teacher and manager of the elite academic world. Her standing has risen in Obama's eyes as his government's lawyer before the high court over the last year.

Yet Kagan would be the first justice without judicial experience in almost 40 years. The last two were William H. Rehnquist and Lewis F. Powell Jr., both of whom joined the court in 1972.

All of the three other finalists she beat out for the job are federal appeals court judges, and all nine of the current justices served on the federal bench before being elevated.
Kagan's fate will be up to a Senate dominated by Democrats, who with 59 votes have more than enough to confirm her, even though they are one shy of being able to halt any Republican stalling effort.

For the second straight summer, the nation can expected an intense Supreme Court confirmation debate even though, barring a surprise, Kagan is likely to emerge as a justice.

Supreme Court justices wield enormous power over the daily life of Americans. Any one of them can cast the deciding vote on matters of life and death, individual freedoms and government power. Presidents serve four-year terms; justices have tenure for life.

Democrats went 15 years without a Supreme Court appointment until Obama chose federal appellate judge Sonia Sotomayor last year to succeed retiring Justice David Souter. Just 16 months in office, Obama has a second opportunity with Kagan, under different circumstances.

Obama's decision last year centered much on the compelling narrative of Sotomayor, the first Hispanic Supreme Court justice, who grew up in a housing project and overcame hardship.

This year, Obama particularly wanted someone who could provide leadership and help sway fellow justices toward a majority opinion. The president has grown vocal in his concern that the conservative-tilting court is giving too little voice to average people.

Kagan is known for having won over liberal and conservative faculty at the difficult-to-unite Harvard Law School, where she served as dean for nearly six years.

Her background, including time as a lawyer and a key domestic policy aide in President Clinton's White House, would give the court a different perspective.

The White House is expected to frame Kagan's lack of service as a judge in upbeat terms, underscoring that there are many qualified routes to the top of the judiciary.

Kagan, who is unmarried, was born in New York City. She holds a bachelor's degree from Princeton, a master's degree from Oxford and a law degree from Harvard.

She served as a Supreme Court clerk for one of her legal heroes, Justice Thurgood Marshall. And before that, she clerked for federal appeals court judge Abner Mikva, who later became an important political mentor to Obama in Chicago.

Kagan and Obama both taught at the University of Chicago Law School in the early 1990s.

In her current job, Kagan represents the U.S. government and defends acts of Congress before the Supreme Court and decides when to appeal lower court rulings.
Kagan has the high task of following Stevens, who leaves a legacy that includes the preservation of abortion rights, protection of consumer rights and limits on the death penalty and executive power. He used his seniority and his smarts to form majority votes.

Rick Garnett, a professor of law and associate dean of University of Notre Dame Law School, voiced the concern of many conservatives.

"Future elections might undo some of the president's policies, but his more liberal views about the Constitution, the powers of the national government, and the role of unelected federal judges, are now being locked in securely," Garnett said in a statement.

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.


Whoa folks...WAIT a damn minute here...let me get this straight: Does Obama and the African American supporters of Ms. Kagan who "just happen to be" some of the President's oldest black friends and colleagues at Harvard Law School (like Professor Charles Ogletree who taught Obama at the Law School during his time there as a student in the late 1980s) really, seriously think that they can get away with their strong and emphatic endorsements of Kagan's clearly abysmal record of hiring African American law professors for tenured positions at Harvard Law just because the President likes her and she too is a longtime friend and colleague of his? This position is absolutely bogus and quite absurd on its face. Kagan is on record of hiring ZERO African Americans (as well as Latinos) while Dean of Harvard Law School during her tenure there out of 32(!) positions. Nor did she hire any blacks of Latinos in her position of Solicitor General which she was selected for by Obama last year. NONE, NADA, ZILCH..C'mon! Let's get real--these numbers are atrocious and frankly indefensible. The President, his black cronies and associates at the Law School, and others who support her in her nomination for the Supreme court must be JOKING if they actually think this record is in any way acceptable. What kind of ludicrous standard for "diversity" is this? If a Republican or southern democratic nominee had this kind of insulting record of (not) hiring African Americans and Latinos at Harvard Law would we give that person a pass the way that the President and her personal friends are asking/demanding that we do on Kagan's behalf? Would this record be considered OK and worthy of support by Professors Ogletree and Kennedy? OF COURSE NOT! In fact they and Obama would be the first to publicly and quite justifiably raise very serious questions and objections if this were the case. So let's not play stupid little games here and give Ms. Kagan, the President, and their supporters at Harvard Law School a pass for pretending that this is fine just because the President is her personal friend...Nah... No way! That would not only be intellectually and morally dishonest but very irresponsible to say the least. Ms. Kagan and the President must be held publicly accountable for this serious problem and critical questions should and must be raised about this with regard to her general nomination, Merely refusing an endowed chair tainted with the blood money of slavery and taking one instead with the great Charles Hamilton Houston's name on it (the legendary Houston was Thurgood Marshall's mentor at Howard University and in his general legal career during the the 1930s and '40s) is simply not enough by a long shot.. Like both Houston and Marshall did during their extraordinary careers as courageous and stalwart legal protectors of social and economic justice Ms. Kagan AND President Obama must PUT UP OR SHUT UP on these crucial matters of genuine public diversity and equal employment opportunities for African Americans and Latinos in our higher education institutions and professions. In other words: NO ONE GETS A PASS ON THAT-- not even the President and a Supreme Court nominee. The ball (and the fate of the Supreme Court) is now in their hands...I sincerely hope they don't blow it...


Nominee Scrutinized for Hiring on Race

May 13, 2010
New York Times

BOSTON — When Elena Kagan became dean of Harvard Law School in 2003, she could have taken the endowed chair named for Isaac Royall Jr. The Royall family had donated more than 2,100 acres to Harvard in the 1700s, but the family had earned its fortune on the backs of the slave trade.

Ms. Kagan declined to take the Royall professorship. Instead, she chose a new chair in the name of Charles Hamilton Houston, the first African-American on the Harvard Law Review and a crusader against Jim Crow laws.

Ms. Kagan’s history on race issues at Harvard has come under scrutiny since President Obama nominated her to the Supreme Court on Monday. Critics say that she did not create enough racial diversity at Harvard, and that in the absence of any writings or opinions, her hiring practices serve as a clue to her thinking. Her supporters counter that she demonstrated a commitment to equality; her claiming the chair in the name of Mr. Houston, they said, is but one example.

In the nearly six years that Ms. Kagan was dean, from 2003 to 2009, she hired a total of 43 permanent, full-time faculty members, 32 of whom were tenured and tenured-track. Of those, 25 were white men, 6 were white women and one was an Asian-American woman. Of the other 11, 6 were white men, 2 were women and 3 were minority men (2 black and one Indian), according to a law school official.

Law school officials said the numbers did not reflect the whole story because offers were made to other minority and women scholars; some were declined and some still open. But others said the record spoke for itself.

“Kagan’s performance as dean at Harvard raises doubts about her commitment to equality for traditionally disadvantaged groups,” Guy-Uriel Charles, a black law professor at Duke, wrote last month in an oft-cited post.

During roughly the same period that Ms. Kagan was at Harvard, Mr. Charles wrote, Yale Law School hired just 10 faculty members; 5 were women, and only one was a minority.

Ms. Kagan’s track record on diversity improved during the last year when she became solicitor general. In that office, she has hired six people — three women and three men (one white, one Asian and one Indian).

Lester K. Spence, a political scientist at Johns Hopkins University, wrote on, a Web site devoted to black issues, that Ms. Kagan appeared to be more concerned with ideological diversity than with diversity of race or gender.

“President Obama wants us to support his choice not because she’s got a strong record, not even because she has a particularly visible record, but because he knows her,” Mr. Spence wrote. “I’m not buying it,” he added. “And even if Kagan ends up being the best justice this side of Thurgood Marshall, you shouldn’t either.”

After it was clear that Mr. Obama, the first black president, would nominate Ms. Kagan, several black women wrote to him saying they were disappointed that he had not nominated a black woman.

The women, who included Melanie Campbell of the National Coalition on Black Civic Participation, also said they wanted to learn more about Ms. Kagan’s record on civil rights.

The administration has been pushing back against any suggestion that Ms. Kagan has been insensitive on racial matters, as have some of her black supporters.

Ronald S. Sullivan, a black law professor whom Ms. Kagan recruited to Harvard, wrote on, another site devoted to black issues, that “no elite law school has done enough” with respect to minority hiring. But, he noted, her spurning of the Royall chair “was a significant statement made by the dean of one of the nation’s top law schools.“

And, he said, Ms. Kagan had expanded the clinical teaching program at Harvard so that “thousands of indigent and under-represented citizens received quality legal services that they otherwise would not have been able to afford.”

Randall L. Kennedy, another black professor at Harvard Law, also strongly defended Ms. Kagan’s hiring practices. He said in an article in The Huffington Post that no dean was solely responsible for hiring faculty, with each one requiring a majority if not a supermajority of votes. This, he said, gets to be a complicated proposition.

Still, he said, Ms. Kagan supported programs that have helped advance minorities, and she helped form a committee to identify promising racial minority candidates.

While she was dean, an average of about 30 percent of the entering classes were minorities, up from about 25 percent in the previous six years, according to a Harvard official.

One of Ms. Kagan’s strongest backers has been Charles J. Ogletree Jr., perhaps the most prominent black law professor at Harvard. He has noted in interviews and articles that she has been supportive of men and women of color among both students and faculty.

“If you look at her whole record, ” Mr. Ogletree said in an interview on Thursday with, “I think it tells you that she worked diligently to make opportunities available for others. The questions about who she recommended and who was tenured are fair, and I think she’ll be able to respond to them.”

Kagan’s Link to Marshall Cuts 2 Ways
May 12, 2010
New York Times

WASHINGTON — In the spring of 1988, Justice Thurgood Marshall assigned a clerk, Elena Kagan, to write a first draft of his opinion in a case considering whether a school district could charge a poor family for busing a child to the nearest school, which was 16 miles away.

Associated Press

Thurgood Marshall at his Supreme Court confirmation hearings in 1967. Elena Kagan clerked for him 20 years later

A majority on the Supreme Court ruled that the busing fee was constitutional. Justice Marshall, who was 80, was incensed and wanted a fiery dissent. But the 28-year-old Ms. Kagan, now a Supreme Court nominee, thought her boss’s legal analysis was wrong.

Ms. Kagan, recalling the incident in a 1993 tribute after his death, wrote that after she told him that “it would be difficult to find in favor of the child” under legal doctrine, he called her a “knucklehead.” He “returned to me successive drafts of the dissenting opinion for failing to express — or for failing to express in a properly pungent tone — his understanding of the case,” she wrote.

Because Ms. Kagan has never been a judge and has produced only a handful of scholarly writings, clues to her philosophy are rare. In that vacuum, liberals and conservatives alike are attributing special significance to her clerkship year with Justice Marshall, who led the civil rights movement’s legal efforts to dismantle segregation before becoming a particularly liberal Supreme Court justice.

But while Ms. Kagan, a former board member for the Thurgood Marshall Scholarship Fund, clearly relished the experience and admired the justice as a historic figure, she appears to have had a far more ambivalent attitude toward his jurisprudence, according to a review of his papers at the Library of Congress, her comments over the years about him and interviews with her fellow clerks and colleagues.

In analyzing why Justice Marshall was adamant about siding with the poor family in the busing fee case, for example, Ms. Kagan explained in her tribute that he “allowed his personal experiences, and the knowledge of suffering and deprivation gained from those experiences, to guide him.”

But Ms. Kagan did not share those experiences, notes Charles J. Ogletree, a Harvard law professor who heads an institute named after Justice Marshall’s mentor, Charles Hamilton Houston, and who has talked over the years with Ms. Kagan, a former Harvard Law School dean, about her clerkship.

“It’s absurd to compare Elena Kagan’s judicial philosophy to Thurgood Marshall’s philosophy,” Professor Ogletree said. “Their times and life experiences are different. They lived in different worlds. The reality is that Elena Kagan learned a lot from Justice Marshall, but she will not be overly influenced by Marshall or anyone else. She is her own person.”

Some differences in the views of Justice Marshall — who once described his legal philosophy as, “You do what you think is right and let the law catch up” — and of his former clerk are striking. For example, he believed that the death penalty was always unconstitutional. But during the confirmation process when she was named solicitor general last year, Ms. Kagan said she had no quarrel with the death penalty.

“I am not morally opposed to capital punishment,” Ms. Kagan wrote to a senator, adding that she “accepted” the Supreme Court’s precedents upholding “the death penalty as constitutional in a wide variety of cases and circumstances.”

Nevertheless, the political dynamics of Ms. Kagan’s nomination have led figures on the left and the right to gloss over such differences.

After some liberal commentators questioned whether Ms. Kagan could be trusted, President Obama declared that Justice Marshall’s “understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people, has animated every step of Elena’s career.”

Conservative critics, too, have sought to link Ms. Kagan closely to Justice Marshall. Among them, Curt Levey of the Committee for Justice has decried a supposed “Kagan/Marshall judicial philosophy,” noting that in her tribute she described as a “thing of glory” her former boss’s view that courts should show special solicitude for disadvantaged parties.

By 1987, as the Rehnquist court was moving to the right, Justice Marshall was “in his decline and alienated, marginalized” and, in hiring clerks like Ms. Kagan, “looking for really bright people to kind of put a new charge in him” and to help him write dissents, said Juan Williams, a Marshall biographer.

“She didn’t come to him because she was necessarily of like mind, although she was coming out of the same political milieu,” Mr. Williams said.

Justice Marshall nicknamed Ms. Kagan “Shorty” and sometimes referred to her as “Little Bits,” though they all got called “knucklehead” from time to time, recalled Harry Litman, another clerk that year. The musty chambers were crammed with books, African artifacts, red Naugahyde chairs and ungainly desks.

Justice Marshall did a lot of work in an anteroom to his main office. There, he sat in a comfortable chair across a large table from his clerks to discuss cases, sessions that inevitably digressed into stories the justice would tell about his life.

“You’re at the same time laughing because he’s such a great raconteur and also thinking it’s unbelievable that these things happened in the lifetime of this person in whose presence I’m sitting, and their life made such a difference in re-creating a South where he had to be out of town by sunset or his life was in danger,” recalled Carol Steiker, another clerk that year.

One task of the clerks was to write brief memorandums evaluating the thousands of cases appealed to the Supreme Court. Most written by Ms. Kagan are straightforward, but some caution against taking a case because of how the conservative justices might rule or elevate outcomes over the law.

For example, on Oct. 7, 1987, she analyzed a case in which a judge dismissed an immigrant’s guilty plea over a minor infraction because it could jeopardize his application for permanent residency. The Justice Department appealed, saying the district court had exceeded its authority.

Ms. Kagan wrote that the Justice Department’s view was “almost certainly correct.” Still, she recommended against taking the appeal because the judge had “ensured an equitable result” at “no great cost to the Republic.” Justice Marshall scrawled “D” for “deny” at the top of her memorandum.

In her hearing last year, Ms. Kagan distanced herself from those writings, saying her job was to “channel” Justice Marshall’s mind-set.

A clerk to a justice is “trying to facilitate his work, and to enable him to advance his goals and purposes as a justice,” she said, adding: “He knew what he thought about most issues. And for better or for worse, he was not really interested in engaging with his clerks on first principles.”

Indeed, while her 1993 tribute is couched in fond terms, the bulk of her remarks about cases that arose in her clerkship year concerned their disagreements.

In one case, he voted not to let a man pursue a discrimination claim because his lawyer, who was blind, accidentally left his name off an appeal, and a deadline expired. Ms. Kagan and fellow clerks sought to persuade Justice Marshall to change his vote until he grew annoyed and, pointing to his framed judicial commission on the wall, asked them whose name was on it.

But the case Justice Marshall cared about the most that year, she wrote, was the school bus dispute in which she had trouble justifying his dissent. The final draft seems to implicitly acknowledge that his vote rested less on legal doctrine than on his notion of social justice.

The case, it says, asked “whether a state may discriminate against the poor in providing access to education,” adding: “I regard this question as one of great urgency. As I have stated on prior occasions, proper analysis of equal protection claims depends less on choosing the formal label under which the claim should be reviewed than upon identifying and carefully analyzing the real interests at stake.”