Litigation

Justice Marshall, Law Clerk Kagan Had Differences

By Peter Hardin

Elena Kagan greatly admired the Supreme Court justice for whom she clerked, Thurgood Marshall, as a figure in history. But it would be a mistake to link her judicial thinking and his.

That’s the bottom line of a New York Times article, headlined “Kagan’s Link to Marshall Cuts 2 Ways,” that is illuminating in exploring a fresh angle about President Obama’s newest Supreme Court nominee, Solicitor General Kagan.  Through documents and interviews, the article portrays a law clerk with her own views:

• When she disagreed with his legal analysis in a school busing fee case, in which he wanted to write a passionate dissent, he labeled Kagan a “knucklehead.”
• In a fond 1993 tribute to the deceased justice, most of Kagan’s remarks about cases in her clerkship year “concern their disagreements.”
• Justice Marshall believed the death penalty always unconstitutional; Kagan last year said she had no issue with the death penalty.
• ?It?s absurd to compare Elena Kagan?s judicial philosophy to Thurgood Marshall?s philosophy,? said professor Charles J. Ogletree of Harvard, where Kagan was dean of the law school.

Another source of  facts that may help fill in some of the gaps in a portrait of Kagan is an article in Politico, headlined “Memos reveal Elena Kagan’s centrist side” and based on documents at the William J. Clinton Presidential Library. She worked in the Clinton White House.

Kagan “urged President Bill Clinton to take centrist stances in several battles over issues like abortion and family leave when other administration officials or allies were pressing for a more aggressively liberal approach,” according to Politico.

Named by Obama on Monday, Kagan has continued visiting senators on Capitol Hill. Her lack of judicial experience and of clear positions on numerous issues continued to get a lot of discussion from senators and in the news media.

According to a poll of seasoned Supreme Court watchers reported in National Journal, Kagan likely will face some of the most criticism over her lack of judicial experience and her opposition to military recruitment on campus.

When Barack Obama was a U.S. Senator from Illinois, he raised questions about the lack of judicial experience of President George W. Bush’s Supreme Court nominee, Harriet Miers, but did not find it disqualifying, according to a Washington Post blog.

Obama said then, “Harriet Miers has had a distinguished career as a lawyer, but since her experience does not include serving as a judge, we have yet to know her views on many of the critical constitutional issues facing our country today. In the coming weeks, we’ll need as much information and forthright testimony from Ms. Miers as possible so that the U.S. Senate can make an educated and informed decision on her nomination to the Supreme Court.”

Excerpts of Kagan’s writings over the years are compiled in a Los Angeles Times article. You can learn more about Kagan and the nomination process from Gavel Grab, or from Justice at Stake’s “Replacing Justice Stevens” page.

Full post as published by The Gavel on May 13, 2010 (boomark / email).