Memos Reveal Early Views of Elena Kagan

Between the BP oil spill, the incident on the relief ship heading towards Gaza, and the finale of Lost, other news seems to be getting forgotten. For example, the Supreme Court nomination of Elena Kagan remains under consideration. There has always been a question as to how liberal she is with limited information available on her beliefs. CBS News has obtained memos written when she worked as a clerk for Thurgood Marshall:

The Marshall documents are legal memos summarizing cases the Court had been asked to consider. They cover the spectrum of hot-button social issues: abortion, civil rights, gun rights, prisoners’ rights and the constitutional underpinnings for recognizing gay marriage.

On abortion, Kagan wrote a memo in a case involving a prisoner who wanted the state to pay for her to have the procedure. Kagan expressed concern to Marshall that the conservative-leaning Court would use the case to rule against the woman–and possibly undo precedents protecting a woman’s right to abortion.

“This case is likely to become the vehicle that this court uses to create some very bad law on abortion and/or prisoners’ rights,” she wrote in the 1988 memo.

She also expressed strong liberal views in a desegregation case. Summarizing a challenge to a voluntary school desegregation program, Kagan called the program “amazingly sensible.” She told Marshall that state court decisions that upheld the plan recognized the “good sense and fair-mindedness” of local efforts.

“Let’s hope this Court takes note of the same,” she wrote in the 1987 memo. Just three years ago, the Supreme Court struck down a nearly identical plan.

Kagan also wrote a memo that senators could use to question whether she believes there is a constitutional right to gay marriage.

That memo summarized a 1988 case involving a prisoner serving a life sentence in New York. He argued the state of New York was required to recognize his marriage-by-proxy in Kansas – even though such marriages were illegal in New York.

The basis of his argument was that New York had a duty under the Constitution’s Full Faith and Credit Clause to recognize his Kansas the marriage as valid. Kagan told Marshall his position was “at least arguably correct,” and recommended asking for a response from New York officials.

Then there was the recently disclosed memo on gun rights. In a case challenging the District of Columbia’s handgun ban as unconstitutional, Kagan was blunt: “I am not sympathetic.” The Supreme Court took the opposite approach two years ago, striking down the D.C. gun ban as unconstitutional.

The report summarizes this by saying the memos “show Kagan standing shoulder-to-shoulder with the liberal left, at a time when the Rehnquist Supreme Court was moving to the conservative right.” Kagan’s views actual remain to a considerable degree a mystery considering that these memos deal with a very limited number of issues, were written many years ago, and were likely influenced by the judge she was working for. The memos might offer limited reassurance to those on the left who think she is not liberal enough, and will certainly provide many topics for Republicans to ask her about at her confirmation hearings.

Be Sociable, Share!

Leave a comment