WASHINGTON (BP)–President Obama nominated Solicitor General Elena Kagan for the Supreme Court May 10, choosing someone who has a relatively thin paper trail on many social issues but who has taken a public position on a handful of them, including opposition to the military’s policy prohibiting homosexuals from serving openly.
Kagan, 50, would become the Supreme Court’s third sitting female justice and only the fourth in its history. Obama reportedly hopes she not only will be a reliable vote with the liberal bloc but also will help counterbalance the intellectual weight of Chief Justice John Roberts, thus perhaps pulling in swing voter Justice Anthony Kennedy, whose stance often is crucial in 5-4 decisions.
Before being confirmed by the Senate as solicitor general last year, Kagan worked nearly six years as dean of Harvard Law School. She worked in the Clinton White House, first as associate counsel to the president (1995-96) and then as deputy assistant to the president for domestic policy and deputy director of the domestic policy council (1997-99).
She has never served as a judge, although President Clinton nominated her to an appeals court seat in 1999. The Republican-controlled Senate never voted on her nomination.
Kagan would replace Justice John Paul Stevens, a member of the court’s liberal bloc who is retiring.
“Elena is respected and admired not just for her intellect and record of achievement, but also for her temperament — her openness to a broad array of viewpoints, Obama said, adding Kagan was also known for “her fair-mindedness and skill as a consensus-builder.”
Most conservative groups, including the Southern Baptist Ethics & Religious Liberty Commission, expressed concern over her nomination to the high court while many liberal groups applauded it, although some liberals said they were uneasy about Kagan’s “blank slate,” with some even arguing she will help move the court to the right.
Among conservatives’ concerns:
— Kagan has repeatedly criticized the Supreme Court decision in Rust v. Sullivan, a 1991 case in which the court upheld federal regulations barring federally funding health clinics from discussing or referring abortions, Americans United for Life reported.
— Kagan has publicly criticized the military’s Don’t Ask, Don’t Tell policy. “I believe the military’s discriminatory employment policy is deeply wrong — both unwise and unjust,” she wrote in a 2005 e-mail to Harvard students, according to The Harvard Crimson newspaper. “And this wrong tears at the fabric of our own community by denying an opportunity to some of our students that other of our students have.” She also signed a legal brief that asked the Supreme Court to overturn the Solomon Amendment, a law which allows the federal government to bar funds to universities that refuse to allow military recruiters on campus. Harvard and other colleges wanted to refuse the recruiters because of the military’s policy on homosexuals. But the Supreme Court in 2006 unanimously upheld the Solomon Amendment, 8-0.
— Kagan, as solicitor general, has assisted the Justice Department in putting together what conservatives view as weak legal defenses of the Defense of Marriage Act (DOMA), the 1996 law that defines marriage as between a man and a woman and that gives states the option of not recognizing “gay marriage.” Justice lawyers have acknowledged in court that Obama opposes the law.
“Given this strong hint of activism on behalf of gay rights and the fact that she has been recommended by a president committed to the gay, lesbian, bisexual, transgendered agenda, she should be questioned extensively on the issue,” said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission.
Land also said senators at Kagan’s confirmation hearing should quiz her extensively on her standing on religious liberty and free speech. Specifically, Land said senators should ask her whether she agrees with EEOC Commissioner Chai Feldblum, a former Georgetown University law professor who has argued that when homosexual issues collide with religious liberty, “I am convinced society should come down on the side of protecting the liberty of LGBT people.” Feldblum also wrote, “Protecting one group’s identity liberty, may, at times, require that we burden others’ belief liberty.”
“Anybody remember the First Amendment?” Land asked. “Every U.S. senator given the opportunity should ask Solicitor General Kagan that question and until they receive an answer that repudiates Professor Feldblum’s First Amendment-denying legal philosophy, they should refuse to confirm her to the highest court in the land.”
Conservatives believe cases challenging religious liberty will come before the court more and more as laws pass protecting homosexuality.
Kagan clerked for Supreme Court Justice Thurgood Marshall, a champion of civil rights but also of legalized abortion and taxpayer-funded abortion.
Little is known about Kagan’s positions on church-state issues. Despite instances where Kagan took the liberal position, some liberal thinkers are not on board with the nomination. Jonathan Turley, a leading liberal and a professor at George Washington University Law School, wrote on his blog that for “many liberals and civil libertarians, the Kagan nomination is a terrible act of betrayal.”
“[Obama] is now replacing a liberal icon with someone who has testified that she does not believe in core protections for accused individuals in the war on terror,” Turley wrote. “… Kagan’s writings (as little as there is) is highly problematic for liberals. Her writings on hate speech shows a willingness to compromise on free speech issues.”
A 2009 quote from Kagan regarding “gay marriage” had some liberal bloggers worried Monday. During her confirmation hearing for solicitor general she was asked in writing by Republican Sen. John Cornyn, “Do you believe that there is a federal constitutional right to same-sex marriage?” Kagan replied, also in writing, simply, “There is no federal constitutional right to same-sex marriage.”
The quote has left conservatives and liberals asking: Was Kagan only restating current law — in other words, saying that presently there is no constitutional right — or was she expressing her own views of how she personally would interpret the constitution? The quote is significant because the Supreme Court may take up the issue of “gay marriage” in the coming years and decide whether to legalize it in all 50 states.
Brian Brown, president of the National Organization for Marriage, sent out an e-mail Monday saying “a vote for Elana Kagan is a vote to impose gay marriage on all 50 states.”
“How do we know?” he asked. “For one thing, as Solicitor General, Elena Kagan has sabotaged the legal case for upholding the federal Defense of Marriage Act. Kagan’s brief before the federal courts on DOMA attacked the main legal rationale for marriage, that it is related to responsible procreation.”
The nation’s largest homosexual activist organization, the Human Rights Campaign, applauded the Kagan pick, pointing to her opposition to the Solomon Amendment and Don’t Ask, Don’t Tell.
“We are confident that Elena Kagan has a demonstrated understanding and commitment to protecting the liberty and equality of all Americans, including LGBT Americans,” Human Rights Campaign President Joe Solmonese said in a statement.
A leading pro-choice organization, NARAL Pro-Choice America, issued a statement saying Kagan has a “sound record of legal accomplishment” and that it looked forward to learning more about her views.
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Michael Foust is an assistant editor of Baptist Press.
