Kagan: The Right Woman for the Job?

I'm a first time FBomb writer (yay!) and I am addicted to legal news and ethics, so I chose to write about Elena Kagan, the pending Supreme Court Justice nominee. It has been a year since President Obama chose Sonia Sotomayor to replace David Souter on the Supreme Court. As we remember, the pick was largely celebrated. Yesss! A Hispanic woman on the Court. America gained a victory when the Senate confirmed Sotomayor, a defender of civil and environmental rights, to the Supreme Court that summer, the third woman to sit on the country’s highest bench. It baffles me, and I am sure you also, that we have only had three women sit on the bench. Well, I am not writing this post today to reflect on old but good news. President Obama announced on May 10 that he has nominated Solicitor General Elena Kagan, with no judicial and little prosecutorial experience, to replace John Paul Stevens. Confirmation hearings are set for June 28.

Kagan certainly has impressive credentials but another woman on the Supreme Court is not always a victory. I do not think she is right for the job. A graduate of Princeton, Oxford and Harvard Law School, she clerked for Thurgood Marshall, the first African-American on the Supreme Court from 1987-88 and then going into private practice. Years later, she became the first female dean of Harvard Law and became Solicitor General last year. Kagan has mostly gained media attention for not allowing military recruiters on the law school campus in opposition to the cruel Don’t Ask Don’t Tell policy. I’ll give her kudos on that, but we do not know her opinions on many legal issues of the day. While many law professors and deans rightly argued against President George W. Bush’s abuses of executive wartime power and civil liberties, Kagan either kept quiet or defended them. In a 2003 memo, she wrote that Bush v. Gore was a case influenced more by politics than legality but declined not to take a position on the case.

To me, just based on these two instances, she subtly takes the positions of Obama’s predecessor. She also does this by keeping largely silent during Bush’s time in office while renditions and secret torture programs were conducted, as she has not written any opinions on his administration’s handling of terror. Abortion will continue to be a litmus test for judicial candidates, so is she a defender of reproductive rights? Although Kagan has not written legal opinions, let alone any judicial ones, in favor of or against abortion, she criticized a ruling in the 1991 case of Rust v. Sullivan, which favored the Department of Health and Human Services in its decision to withhold funding from Title X groups who performed abortions. In 1997, however, Kagan wrote a memo to President Bill Clinton, to whom she was an advisor at the time, to support the ban on late term abortions to avoid a Congressional override on his veto on a Republican supported bill. In this case, Kagan decided that women’s privacy should be forsaken for bipartisanship. All Kagan has stated on Roe v. Wade is that it is a “settled” law at a recent meeting. These have been her only known opinions on abortion. Kagan’s appointments to Harvard Law faculty have been as pitiful as they were not diverse. More conservative professors were hired. She hired 25 men and 7 women. All but one Asian-American woman were white. 3% of her hires were of color. All in all, Kagan has a thin judicial philosophy, let alone a progressive one, and she does not indicate to us as to how she will judge.

Of course, I was really curious to see this time around how the media would characterize another female nominee on the Supreme Court, and so far I have been amused. Apparently, there are other important factors we must take into account. How else could Kagan be unqualified? She does not cross her legs! She did not learn to drive until her 20’s! A personal favorite of mine: she’s too fat! (And I guess some of the current justices look like they’re in perfect shape…) And of course, the lesbian rumors persist. Lesbians cannot sit on the bench! You know, because Kagan looks kinda butch and is single. Oh, and for kicking military recruiters off campus because of DADT. Kagan herself and the White House have denied these allegations a year ago during her nomination as Solicitor General and they are denying them now. Seriously, people, take a hint. Stop picking at the issue if both parties have already said no.  Maybe it was long ago, but I do not remember these allegations being made when George W. Bush nominated Harriet Miers, also single and unmarried, in 2005.

And a fascinating one: according to the brilliant Rush Limbaugh, Kagan hates the Constitution! Why might a longtime legal scholar hate a document that is supposed to serve as the foundation for her work and opinions? Based on this article by Ed Whelan at the National Review, Kagan took a position in 1987 during her clerkship with Marshall that interpretation of the 14th Amendment should be broad and that the Constitution has given more negative liberties rather than positive rights. She took this position in regards to a lower-court ruling that allowed for lawsuits to proceed against state officials who abandoned their duties; this is a view that many liberals would presumably concur with. The Court (a conservative court at the time) in a 6-3 ruling rejected this notion in the 1989 case DeShaney v. Winnebago County, which ruled in favor of Illinois welfare officials who failed to take action, when being reminded repeatedly about a father abusing his 4-year-old son, who ended up in a coma with half his brain destroyed. The Court, kissing up to child abusers, narrowly defined what “liberties” are granted under the 14th Amendment. A pretty heartbreaking ruling, but apparently Kagan hates the Constitution for being liberal not agreeing with this interpretation.

This case was decided two decades ago, and who knows if she would still stand by her position of that time, but the jury is still out on where Kagan’s legal standing is today; it may not be liberal as it might have been in the 1980’s. Overall, Kagan is just Obama’s safety pick in an attempt to please both sides of the political spectrum. I would have hoped after choosing an excellent justice like Sonia Sotomayor, he would have chosen someone who showed deep and progressive understanding of the law. Elena Kagan fails to do that.

What do you feminists all think of Elena Kagan? Which member of the Supremes do you think will retire next summer?

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Selam S
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