Litigation

Old Kagan Clerking Memos: Ammo for Attack?

By Peter Hardin

The public and politicians are getting a glimpse of more old memos written by Elena Kagan when she was a clerk for Supreme Court Justice Thurgood Marshall. At least one Senate Republican is seizing on the memos as ammunition for attack.

“Kagan’s memos unambiguously express a leftist philosophy and an approach to the law that seems more concerned with achieving a desired social result than fairly following the Constitution,” said Sen. Jeff Sessions, senior Republican, according to an article by Reuters.

Sessions was commenting after CBS News aired a report citing memos in Justice Marshall’s papers that had Kagan aligning with him and other liberals. Kagan, President Obama’s solicitor general, is his nominee to replace retiring Justice John Paul Stevens.

Some of the memos involved a prisoner who wanted an abortion funded by the state; a school desegregation program she defended as “amazingly sensible;” and standards for criminals to pursue an appeal based on an argument they had ineffective assistance of counsel.

A New York Times article touched on some of these documents and more, but it also underscored the question of whether they represent Kagan’s thinking today. “Ms. Kagan has shown an ability to elude attacks over her old memorandums,” the article said, referring to her confirmation hearings for the solicitor general post.

It gave the example of her own 1987 memo that she criticized last year, in face of questioning from a Republican senator, as representing a youthful analysis that was “the dumbest thing I’ve ever heard.”

More Kagan memos were on the way; on Friday the William J. Clinton Library on Friday released 46,500 pages of documents  from her legal work in the Clinton White House. They are available by clicking here.

To learn more about Kagan and the nomination process, check out Gavel Grab or Justice at Stake?s ?Replacing Justice Stevens? page.

Full post as published by The Gavel on June 04, 2010 (boomark / email).