The Senate Republican Policy Committee just released the follwoign document on Elena Kagan. The Brody File will show you Democrats viewpoint as it becomes available.
To: LDs, Judiciary LAs and Counsels
Re: Who is Elena Kagan?
Moments ago President Obama officially announced his intention to nominate his Solicitor General to the Supreme Court. Ms. Kagan will be the first nominee in almost four decades without any judicial experience. (Recent polls show 70 percent of Americans view judicial experience as an important qualification for the court, drawing more support than any other factor.) Prior to her present job, Ms. Kagan had virtually no courtroom experience.
The lack of a judicial record on which to assess Ms. Kagan’s suitability for the Court will make the Senate confirmation process particularly important.
See below for some background on Ms. Kagan.
Gregg T. Nunziata
Judiciary and Homeland Security Policy Counsel
Senate Republican Policy Committee
Senator John Thune, Chairman
Who is Elena Kagan?
Earlier today, the President nominated his Solicitor General, Elena Kagan, to the United States Supreme Court. The Senate Judiciary Committee and the full Senate will conduct a deliberate and searching, but respectful, inquiry into her qualifications and suitability for the bench. Senators should refrain from taking an ultimate position on her nomination until that process is complete. What follows is a brief primer on some initial areas of concern, followed by a biographical sketch.
Potential Areas of Concern
Experience: Ms. Kagan is the first nominee to the Court in 38 years who has never served as a judge prior to her nomination. The overwhelming majority of Americans say that prior judicial experience is a positive factor for the Court. [i] In fact, asked about the favorability of a number of qualities a nominee might possess, Americans put prior judicial experience at the top of the list.[ii] Ms. Kagan herself has previously written about how important it is that a nominee’s prior experience demonstrates mastery of the “craft” of judging. Without judicial experience she will have to demonstrate her suitability to the bench in other ways. It is also worth nothing that, prior to her confirmation as Solicitor General, Ms. Kagan did not have much litigation experience, and in fact, had spent virtually no time in the courtroom – never trying a case to verdict or arguing an appellate matter.
“Don’t Ask, Don’t Tell”: Ms. Kagan has been a vocal critic of the military’s “don’t ask, don’t tell” policy – as Dean, going so far as to oppose the military recruiting on Harvard’s campus – during a time of war. She only allowed military recruiting under compulsion of the Solomon amendment, which would deny federal funds from institutions that closed their doors to the military. In her private capacity, she joined other law professors in unsuccessfully arguing that the Solomon amendment, despite its plain text and the plain Congressional intent behind it, did not prevent law schools from barring access to military recruiters. The Supreme Court unanimously disagreed. The Chief Justice, writing for the Court, concluded, “That is rather clearly not what Congress had in mind in codifying the DOD policy. We refuse to interpret the Solomon Amendment in a way that negates its recent revision, and indeed would render it a largely meaningless exercise.”[iii]
War on Terror: Ms. Kagan opposed legislation designed to prevent terrorists convicted in military tribunals from using civilian courts to challenge their convictions. She compared Congress’s effort, on a bipartisan basis, to clarify the laws governing the War on Terror to the “fundamentally lawless” actions of a “dictatorship.”[iv]
Performance as Solicitor General: Given the limited nature of Ms. Kagan’s legal record, her brief service as the Obama Administration’s Solicitor General will be an important area of inquiry. Her performance in management of the office and personally arguing some cases may be subject to criticism.[v] Her specific positions at oral argument should be closely scrutinized – including the argument her office made (later partially retracted) that the government had the power, under campaign finance laws, to ban certain books and pamphlets. In addition, her role as a high level member of this administration could force her recusal in a number of important cases going forward.