Supreme Court Nominations

Think Kagan Is Anti-Military and Pro-Executive Power? Think Again, Epic Post Asserts

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If you listen to some pundits, Solicitor General Elena Kagan has an expansive view of executive power and a dislike for the military.

But SCOTUSblog says critics and supporters alike are misinterpreting Kagan’s views on executive power, overlooking her support for the military, and wrongly equating stances she took as solicitor general with her own positions.

In a lengthy post, the blog also makes some predictions about Kagan, who is widely believed to be the leading contender to replace retiring Justice John Paul Stevens. The first: Kagan would get confirmed with about 65 votes, three fewer votes than Justice Sonia Sotomayor received. Second: After she takes the bench, Kagan would not have to recuse herself in a significant number of cases because of her work as solicitor general. The total would likely be 15 merits cases in the term that begins in 2010 and five cases the following term.

The blog addresses what it sees as these misconceptions:

• On executive power. Some have suggested that Kagan would have supported the Bush administration assertions of strong power in the war on terrorism. But the blog says Kagan’s Harvard Law Review article on executive power “has nothing to do with the questions of executive power that are implicated by the Bush policies—for example, power in times of war and in foreign affairs. It is instead concerned with the president’s power in the administrative context. … Nor does the article assert that the president has ‘power’ over the other branches of government in the constitutional sense—i.e., a power that cannot be overridden.”

• On military recruiting. Military recruiting had been controversial at many schools because the armed forces discriminate on the basis of sexual orientation, violating school policies against bias in recruiting. In 1996 Congress passed the Solomon Amendment barring federal funding for schools that refuse to allow military recruiters on campus. Kagan became law dean in 2003, and she joined an amicus brief urging that the Solomon Amendment be overturned on statutory grounds. But she allowed military recruiters on campus rather than lose government funding. Kagan explained her stance in an e-mail to students. It read, in part, “I have said before how much I regret making this exception to our anti-discrimination policy. I believe the military’s discriminatory employment policy is deeply wrong—both unwise and unjust. … The importance of the military to our society—and the great service that members of the military provide to all the rest of us—heightens, rather than excuses, this inequity.”

According to SCOTUSblog, “Some commentators have claimed that Kagan’s position on the Solomon Amendment reflects an anti-military bias. That criticism is unsound. … There is no evidence that Kagan harbors any hostility towards the military. She hosted dinners at Harvard for veterans. Her e-mail to the student body … takes care to state her respect for the military.”

• On her views as solicitor general. According to SCOTUSblog, “Some critics (and supporters) attribute to Kagan views on certain legal issues based on positions she took as solicitor general. That criticism (and praise) is misguided. The solicitor general acts as the attorney for the United States and therefore asserts the position of the government, without regard to whether she personally shares the same view.”

The blog also has details of Kagan’s biography. Here is a summary:

Graduated Harvard Law School in 1986.

Clerked for Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit and Justice Thurgood Marshall.

Williams & Connolly associate beginning in 1988.

University of Chicago law professor beginning in 1991.

Associate White House counsel in the Clinton administration beginning in 1995, then deputy assistant to the president for domestic policy and deputy director of the Domestic Policy Council beginning in 1997.

Harvard law professor beginning in 1999.

Harvard law dean beginning in 2003.

Solicitor general beginning in 2009.

Additional coverage:

SCOTUSblog: “Is the Nomination a Done Deal?”

New York Times: “Potential Court Pick Faced Dilemma at Harvard”

Wall Street Journal Washington Wire blog: “Holder: Elena Kagan ‘Would Be a Great Justice’”

Associated Press: “Age could be a key factor in high court pick”

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