Since the days of Robert Bork, it has happened, sooner or later, to every Supreme Court nominee: the uncomfortable moment when a Senator quotes one of the nominee’s writings back to him or her, smiles across the Committee table, and says: “Explain that.”
If Solicitor General Elena Kagan is nominated to replace Justice John Paul Stevens on the Supreme Court next month, as observers like Tom Goldstein of SCOTUSBlog and Jeffrey Toobin of the New Yorker expect, here’s the quote she’ll be hearing:
When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.
Kagan wrote that in a 1995 book review for the University of Chicago Law Review. During her 2009 confirmation hearings, she addressed the issue this way: “I am also less convinced than I was in 1995 that substantive discussions of legal issues and views, in the context of nomination hearings, provide the great public benefits I suggested. Yet that leaves the question just what these hearings should be about – what matters Senators should explore with the nominee and how the nominee should be evaluated. I confess to finding these questions very difficult.”
Kagan’s professional background is described in detail in the Background Questionnaire she completed for the Judiciary Committee in 2009. A native New Yorker, she received her undergraduate degree from Princeton and a Masters from Oxford. After graduating from Harvard Law School in 1986, she clerked for Judge Abner Mikva on the D.C. Circuit, and then for Thurgood Marshall at the U.S. Supreme Court. Between 1989 and 1991, Kagan was a junior associate at Williams & Connolly in Washington, handling a mix of commercial, First Amendment and white-collar criminal litigation.
Since that time, Kagan’s career has shuttled between academia and public service. She joined the faculty at the University of Chicago Law School in 1991, but left temporarily to serve at the request of now-Vice President Biden as Special Counsel to the Senate Judiciary Committee during the confirmation hearings for Justice Ginsburg in 1993.
In 1995, she interrupted her academic career again to serve as Associate Counsel to the President, and later as Deputy Assistant to the President for Domestic Policy. After leaving the White House in 1999, she was a Visiting Professor at Harvard Law School, becoming a resident Professor in 2001 and Dean of the Law School in 2003. Kagan was nominated and confirmed as the first woman to serve as Solicitor General in 2009.
General Kagan’s Tenure as Solicitor General. Since Justice Stevens announced his retirement, there’s been considerable public discussion of Kagan as a potential nominee. Columnist Glenn Greenwald has expressed concerns about her substantive views, former Solicitor General Walter Dellinger and Tom Goldstein of SCOTUSBlog have defended her, and Greenwald has responded.
Although these columns have been largely concerned with policy, Kagan’s performance as Solicitor General has come in for some criticism as well. Writers in both Salon and the New York Times have been critical of Kagan’s tenure, and other columnists have quoted from, and linked to, those articles. However, these criticisms do not stand up to close analysis.
Join us below to jump to see why.
Prior to her first Supreme Court argument as Solicitor General, Kagan had never presented an appellate oral argument (although this is uncommon, other Solicitors General have come to the office with limited experience in appellate practice). Since being sworn in, she has argued six cases at the Supreme Court:
- Citizens United v. Federal Election Commission, No. 08-205, September 9, 2009: General Kagan conducted the reargument, which involved the constitutionality of Section 203 of the Bipartisan Campaign Reform Act of 2002;
- Salazar v. Buono, No. 08-472, October 7, 2009, which involves standing to bring an Establishment Clause suit and whether Congress could respond to an earlier ruling by conveying the land at issue to a private entity, with a reversion if the land ever ceased to be a war memorial;
- Free Enterprise Fund and Beckstead and Watts v. Public Company Accounting Oversight Board, No. 08-861, December 7, 2009, which involves the issue of whether Congress’ creation of the Public Company Accounting Oversight Board in Sarbanes-Oxley violated the Appointments Clause;
- United States v. Comstock, No. 08-1224, January 12, 2010, which involves the constitutionality of 18 USC §4248, which permits court-ordered civil commitment of "sexually dangerous" persons in the Federal prison system following completion of their sentences;
- Holder v. Humanitarian Law Project, No. 08-1498 et al., February 23, 2010, which involves the related issues of whether 18 USC §2339b(a)(1), which bars providing any "service" to a foreign entity designated by the government as a terrorist organization, is void for vagueness, or unconstitutional as applied with respect to lawful activities of such entities; and
- Robertson v. United States, No. 08-6261, March 31, 2010, which involves the question of whether a private person may bring an action for criminal contempt in an Article I court.
The argument transcripts reveal an able advocate, vigorously defending the government’s position, pressing her points under frequently heavy questioning. Pursuant to long-standing practice, the Solicitor General must defend any Federal statute whose constitutionality is challenged. The narrow exceptions are when no reasonable defense is possible, or when, in the Solicitor General’s judgment, the statute infringes on the President’s constitutional powers. In her confirmation hearings before the Judiciary Committee, Kagan was repeatedly questioned about whether she would aggressively defend statutes with which she might personally disagree, and she committed to doing so. In her appearances before the Court, she has consistently lived up to her commitment.
The New York Times points to an exchange in Holder, when the Chief Justice suggested that Kagan was advancing an argument about the breadth of the statute which hadn’t been preserved in the Government’s briefs. Kagan responded by apologizing if the point hadn’t been sufficiently emphasized, but what the Times doesn’t mention is that Kagan was correct: the argument she was making was indeed in the government’s brief, exactly where she said it was.
The Times also points to Kagan’s performance in Citizens United. There, Kagan chose not to rely on the original rationale of Austin (the case whose viability the Court was considering), which was that Congress could validly limit corporate speech in order to keep it from drowning out other speakers. But once again, there is more to the story.
Kagan argued in a 1996 article for the University of Chicago Law Review, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, that Austin’s rationale was problematic. She was asked about those statements during her confirmation by Senator Jeff Sessions of Alabama, and she replied that she continued to believe in her earlier argument. Under the circumstances, she did exactly what she was obligated to do: defend the Austin result using what seemed to her to be the strongest possible argument. Had she done otherwise, she certainly would have had her words quoted back to her, since her opponents were two former Solicitors General, Theodore Olson and Seth Waxman.
Finally, the Times points to Kagan’s argument a few weeks ago as amicus in Robertson. There, she took the position that a plea agreement signed by one U.S. Attorney did not necessarily bind another U.S. Attorney. The Times quotes the Chief Justice’s response: "That’s absolutely startling."
But in fact, there is a Circuit split on precisely that question, and Kagan was once again doing her job — arguing the position most favorable to the Government. The Government’s brief cites the favorable authority, and distinguishes the contra cases.
Salon’s analysis fares little better. There, the writer cites a question from Justice Ginsburg, late in the Citizens United argument, suggesting that the Government’s answer to a key question had changed during the course of the case. What the author doesn’t mention is that the Government’s original answer had been given when the case was first argued, in March of 2009. Kagan didn’t conduct that argument, having been confirmed only five days earlier. Three months later, the Court set the case for reargument in an order signaling that Austin was in mortal danger. As Kagan explained to Justice Ginsburg, the Government had carefully considered the Court’s reactions in that first argument, and had adjusted its position as a result: exactly what should have happened.
Salon also cites to the Chief Justice’s "absolutely startling" comment in Robertson, but otherwise, the writer’s support for his pointed title — "On the Supreme Court, Not a Lot of Respect for Elena Kagan" — seems to be limited to the heavy and at times somewhat combative tone of several of the Justices’ questions during the Solicitor General’s arguments. But in fact, the transcripts show nothing unusual for the rough-and-tumble world of Supreme Court litigation; similar snippets could be found somewhere in the careers of many talented appellate advocates. I suspect it is the author’s statement – that "the Supreme Court is a place of exceeding decorousness" – that most appellate litigators will find "absolutely startling."
Kagan on Issues. Because Kagan has never served as a judge or run for political office, concrete indications of her views on issues which might come before the Court are somewhat limited. Her scholarly work dates from before 2003; her position as Harvard Dean all but precluded scholarly writing, given the school tradition that Deans remain relatively apolitical. Nevertheless, her scholarly work is creative and thoughtful, tightly reasoned, and often elegantly written.
In an influential 2001 article for Harvard Law Review, Presidential Administration, Kagan expressed strong support for the growing trend over the past thirty years of Presidents exercising considerable control over the actions of administrative agencies. Some have argued that her paper suggests a similar attitude towards broad executive power in foreign affairs, but the argument seems unconvincing. In the article, Kagan denied that she was proposing that the President have a "free hand" in controlling the domestic administrative machinery, and the distribution of power in foreign policy presents an entirely different set of issues.
For example, in 2005, Kagan joined other law professors in signing a letter to the Senate urging the removal of an amendment which would have stripped federal courts of jurisdiction to hear habeas corpus claims for detainees at Guantanamo. During her confirmation hearings, Kagan was questioned about foreign policy issues by Republican Senator Lindsey Graham. She said an independent judiciary should always be involved in determinations that an individual was an enemy combatant — a position with which Senator Graham agreed.
That same year, Kagan joined in a Supreme Court amicus brief filed by a group of Harvard professors in Rumsfeld v. Forum for Academic and Institutional Rights. Rumsfeld addressed the constitutionality of the Solomon Amendment, which involved the obligation of universities receiving federal funding to permit recruiting for the armed forces on campus. The challenge was ultimately rejected unanimously by the Supreme Court, but what is seldom noted by writers on the case is that while the Third Circuit had already struck down the statute, Kagan and the other amici urged affirmance on much more moderate, statutory grounds which would have avoided the constitutional issue altogether.
Kagan’s remarks during her confirmation hearing demonstrate a moderate, lawyerly approach. When asked about "judicial activism," she responded:
I think it is a great deal better for the elected branches to take the lead in creating a more just society than for courts to do so . . . I think a judge should try to the greatest extent possible to separate constitutional interpretation from his or her own values and beliefs.
She noted that prevailing law protects "a woman’s right to terminate a pregnancy," but flatly stated "[T]here is no federal constitutional right to same-sex marriage." Over and over in their written questions, the members of the Judiciary Committee asked Kagan whether she believed that certain important Supreme Court cases, on issues ranging from the death penalty, to the Second Amendment, to the takings clause, to school choice programs, were correctly decided, but Kagan, following the lead of most recent nominees, declined to take a position.
When Kagan was nominated for Solicitor General, an impressive array of legal luminaries — including the last eight Solicitors General — enthusiastically endorsed her nomination. Her record reflects a brilliant attorney with a comprehensive knowledge of law and policy.
[Full Disclosure: General Kagan and I were law school classmates. Although I discovered in researching this profile that she was in my first year section, I have no recollection of that.]