Elena Kagan

Elena Kagan

: Photo from Wikimedia Commons / Author of Photo: Elena_Kagan_official_SCOTUS_portrait.jpg: Steve Petteway, Collection of the Supreme Court of the United States


* Served as President Bill Clinton’s Associate White House Counsel
* Former dean of Harvard Law School
* Sought to overturn the Solomon Amendment, a law that denies federal funding to any university that bars military recruiters from its campus
* Believes that the military should open its ranks and barracks to homosexuals, without restriction
* Was nominated to be U.S. Solicitor General by President Barack Obama in January 2009
* Was nominated for the U.S. Supreme Court by President Obama in May 2010

Elena Kagan was born in April 1960 in New York City.

A week after Ronald Reagan’s presidential victory in November 1980, Kagan, who was then a student at Princeton University, contributed a piece to the Daily Princetonian, wherein she gave voice to her angst over the apparent demise of the left. She wrote that her immediate “gut response” to Reagan’s election had been to conclude “that the world had gone mad, that liberalism was dead, and that there was no longer any place for the ideals we held or the beliefs we espoused.” Soon thereafter Kagan predicted, with a hopeful spirit, that “the next few years will be marked by American disillusionment with conservative programs and solutions, and that a new, revitalized, perhaps more leftist left will once again come to the fore.”

The following year, Kagan penned her senior thesis—titled “To the Final Conflict: Socialism in New York City, 1900-1933”—wherein she specifically thanked her brother Marc, “whose involvement in radical causes led me to explore the history of American radicalism in the hope of clarifying my own political ideas.” In the body of that work, Kagan lamented that “a coherent socialist movement is nowhere to be found in the United States”; that “Americans are more likely to speak of … capitalism’s glories than of socialism’s greatness”; that “the desire to conserve has overwhelmed the urge to alter”; that “in a society by no means perfect,” no “radical party” had yet “attained the status of a major political force”; that “the socialist movement [had] never become an alternative to the nation’s established parties”; and that the Socialist Party had “exhausted itself forever and further reduced labor radicalism in New York to the position of marginality and insignificance.” Kagan called these developments “sad” and “chastening” for “those who, more than half a century after socialism’s decline, still wish to change America.”

After graduating from Princeton in 1981, Kagan earned a Master of Philosophy degree from Worcester College at Oxford University in 1983, and a J.D. from Harvard Law School in 1986. She then took a job as a law clerk for Judge Abner Mikva, a leftist member of the U.S. Court of Appeals for the District of Columbia Circuit. Later, she clerked for U.S. Supreme Court Justice Thurgood Marshall, whom she now identifies as her hero. In 1988 Kagan worked on the presidential campaign of Democrat Michael Dukakis. In 1991 she became an assistant professor at the University of Chicago Law School, where she first met Barack Obama, a fellow faculty member.

In 1993 Kagan penned an article titled “Regulation of Hate Speech and Pornography” for the University of Chicago Law Review. In that piece, Kagan wrote:

“I take it as a given that we live in a society marred by racial and gender inequality, that certain forms of speech perpetuate and promote this inequality, and that the uncoerced disappearance of such speech would be cause for great elation.”

From 1995 to 1999, Kagan served under Bill Clinton in various roles: Associate White House Counsel, Deputy Assistant to the President for Domestic Policy, and Deputy Director of the Domestic Policy Council. According to WhoRunsGov.com, Kagan “was reportedly ‘part of a nerve center’ in the administration, and worked closely with domestic policy advisor Bruce Reed, [John] Podesta,… and … Rahm Emanuel.”

In her 1996 article in the University of Chicago Law Review — entitled, “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine” — Kagan wrote:

“If there is an ‘overabundance’ of an idea in the absence of direct governmental action — which there well might be when compared with some ideal state of public debate — then action disfavoring that idea might ‘un-skew,’ rather than skew, public discourse.”

In June 1999 President Clinton nominated Kagan to the U.S. Court of Appeals for the District of Columbia Circuit, though she had never argued a case before the Supreme Court. But because the Senate Judiciary Committee’s Republican chairman Orrin Hatch subsequently elected not to schedule a hearing on Kagan, her nomination was never confirmed.

In 1999 Kagan identified herself as a member of the National Partnership for Women and Families, or NPWF, which seeks “to increase women’s access to … reproductive health services and block attempts to limit reproductive rights … and to give every woman access to … abortion services.”

Also during her years in the Clinton White House, Kagan supported race preferences in the form of affirmative action.

In 2003, Harvard University president Lawrence Summers appointed Kagan to be the dean of Harvard Law School. During her time at Harvard, Kagan hired Cass Sunstein away from the University of Chicago. In 2008, Kagan referred to Sunstein as “the preeminent legal scholar of our time — the most wide-ranging, the most prolific, the most cited, and the most influential.”

It was also at Harvard where Kagan expressed her most infamous criticisms of the U.S. military. In Kagan’s view, the armed forces ought to welcome open homosexuals to their ranks without reservation. In an e-mail that she disseminated to the entire Harvard Law School community in October 2003, Kagan wrote: “I abhor the military’s discriminatory [don’t ask,don’t tell] recruitment policy” – characterizing it as “a profound wrong, a moral injustice of the first order … a wrong that tears at the fabric of our own community.”

Kagan has long opposed the so-called Solomon Amendment, a law that denies federal funding to any university that “has a policy or practice … that either prohibits, or in effect prevents” military personnel “from gaining access to campuses, or access to students … on campuses, for purposes of military recruiting.” This Amendment was enacted in 1996, in response to a trend where many law schools, as gestures of protest against a federal law barring open homosexuals from military service, were discouraging and/or prohibiting military recruitment on their campuses. When a federal appeals court struck down the Solomon Amendment, Harvard Law, under Kagan’s stewardship, became the first major law school in the United States to ban official recruiting on campus.

Kagan also filed an amicus brief urging the Supreme Court to declare the Solomon Amendment unconstitutional. The Court, however, unanimously rejected Kagan’s position.

Also during her tenure as dean at Harvard Law, Kagan co-signed a letter — along with Harold Koh — urging the Senate not to adopt an amendment that would have protected the White House from lawsuits filed by foreign terrorists charging that their “constitutional rights” had been violated by American law-enforcement and intelligence authorities.

In 2006, Kagan instituted three new courses to the required curriculum at Harvard Law. One of these courses focuses on public international law; another deals with international economic law and multinational financial transactions; the third is a comparative law class whose purpose is to “introduce students to one or more legal systems outside our own, to the borrowing and transmission of legal ideas across borders, and to a variety of approaches to substantive and procedural law that are rooted in distinct cultures and traditions.” While adding these three required courses, Kagan eliminated a requirement for students to take at least one constitutional law class at any time during their legal education.

During the 2008 presidential primary season, Kagan donated the maximum $4,600 to Barack Obama’s campaign.

In January 2009, President Obama nominated Kagan to be U.S. Solicitor General, the nation’s second-most-influential legal authority. The Solicitor General’s duty is to oversee appellate litigation involving the federal government, and to present the government’s views to the Supreme Court. At the time of this appointment, Kagan had never argued a case in court on any level. Moreover, she had published only three major articles along with a handful of minor pieces. Accepting Obama’s nomination, Kagan stepped down from her position at Harvard Law School. On March 19, 2009, the Democrat-controlled Senate confirmed her nomination by a 61-to-31 margin (her Senate supporters included 7 Republicans).

In September 2009, Kagan opined that Congress could constitutionally prohibit corporations from engaging in political speech by means of publishing pamphlets that advocate the election or defeat of a particular candidate for federal office. Her argument was subsequently rejected by a 5-4 majority of the Supreme Court in the case of Citizens United v. Federal Election Commission.

Kagan and Georgetown University law professor David Cole served as advocates for the Humanitarian Law Project (HLP) and its fellow plaintiffs in a 2009-10 Supreme Court case known as Holder v. Humanitarian Law Project. The case involved financial supporters of the Liberation Tigers of Tamil Eelam (LTTE) operating in Sir Lanka, and the Kurdistan Workers Party (PKK) operating in Turkey, both of which were Marxist separatist groups that had been formally designated foreign terrorist organizations. The plaintiffs maintained that with a proper blend of persuasion and education, these groups could be convinced to renounce their violent tactics (which had already resulted in at least 100,000 deaths) and to work, instead, within the framework of the United Nations and other representative bodies. Thus the plaintiffs demanded that they (the plaintiffs) be permitted to give money and other forms of aid (i.e., “material support”) to the two organizations. Oyez.org lays out the basic facts of the case as follows:

_Among the plaintiffs in this case are supporters of the Kurdistan Workers Party (“KWP”) and the Liberation Tigers of Tamil Eelam (“LTTE”). The KWP and LTTE engage in a variety of both lawful and unlawful activities. They sought an injunction to prevent the government from enforcing sections of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Section 302 authorizes the Secretary of State to designate a group as a “foreign terrorist organization.” Section 303 makes it a crime for anyone to provide “material support or resources” to even the nonviolent activities of a designated organization. In previous cases, the courts have held that Section 303 was unconstitutionally vague. Congress then passed the Intelligence Reform and Terrorism Prevention Act (“IRTPA”) which amended the AEDPA. It added a state of mind requirement that individuals “knowingly” provide “material support or resources” in order to violate the Act. Congress also added terms to the Act that further clarified what constituted “material support or resources.” The government moved for summary judgment arguing that challenged provisions of the AEDPA were not unconstitutionally vague. The district court granted a partial motion for summary judgment, but held that some parts of the Act were unconstitutionally vague. On appeal, the U.S. Court of Appeals for the Ninth Circuit affirmed, holding that the terms “service,” “training,” or “other specialized knowledge” within the AEDPA, as applied to the plaintiffs, were unconstitutionally vague_.

In a June 21, 2010 decision, the Supreme Court ruled (by a 6-3 margin) that the “Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996” provision making it a crime for Americans to provide “material support” of any kind to a foreign terrorist organization was constitutional – even if the material support was for ostensibly peaceful purposes.

On March 21, 2010 — the day the House of Representatives passed the Patient Protection and Affordable Care Act (Obamacare), Kagan sent an email celebrating the new legislation to Harvard Law Professor Laurence Tribe, who was then serving in the Justice Department. “I hear they have the votes, Larry!! Simply amazing,” Kagan wrote.

On May 10, 2010, President Obama nominated Kagan to replace the retiring John Paul Stevens as a Justice on the Supreme Court of the United States.

During her Supreme Court confirmation hearings before the U.S. Senate, Kagan was asked by Senator Tom Coburn whether she accepted “what the Declaration of Independence says, that we have certain God-given, inalienable rights that aren’t given in the Constitution that are ours, ours alone, and that a government doesn’t give those to us.”  Said Kagan:

“I don’t have a view of what are natural rights, independent of the Constitution. And my job as a Justice will be to enforce and defend the Constitution and the laws of the United States.”

Kagan’s understanding of the Supreme Court’s role mirrors that of Thurgood Marshall. In one of her legal writings, Kagan cited Marshall’s assertion that the Constitution, “as originally drafted and conceived,” was “defective.” This view is consistent with President Obama’s contention that the Constitution “is not a static but rather a living document and must be read in the context of an ever-changing world.” Kagan has also quoted Justice Marshall saying that the Supreme Court’s mission is to “show a special solicitude for the despised and the disadvantaged.

On August 5, 2010, the U.S. Senate confirmed Kagan to serve on the Supreme Court. She was sworn in two days later.

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