As solicitor general, Elena Kagan has taken sides on a number of issues, which may exclude her from initial decisions as a Supreme Court justice.
As the person chosen by President Obama to represent the interests of the U.S. before the high court, she would, as a justice, find herself called upon to offer an opinion on cases she was directly involved in.
If confirmed, Kagan would likely have to recuse herself from 11 out of 24 cases, including a racketeering lawsuit against tobacco companies and a suit involving detainees at Guantanamo Bay.
Stuart Roth, senior counsel at the American Center for Law and Justice, said for the court to do its job, every justice needs to be there. “If she has to recuse herself and not be involved in as many decisions as we’re hearing,” he said, “then it really casts doubt on whether or not this was a well-thought-out nomination by the president.”
Brad Dacus, president of the Pacific Justice Institute, said her absence would leave the court severely handicapped. “There are nine justices on the court for a reason,” he said, “and that is to try to ensure that there is a solid majority one way or the other on these cases.”
The Clinton Presidential Library released 90,000 pages of documents Friday showing Kagan’s involvement in crafting policies on issues such as abortion, gun control, and tobacco. The papers also reveal Kagan played a part in the president’s attempt to sidestep the Paula Jones sexual harassment lawsuit until he was out of office.
Kagan’s advice as counsel indicated that decisions on partial-birth abortions should be left to doctors. Roth said her stance is troubling. “To leave it in the hands of doctors,” he said, “who have financial gains to be made out of the killing of unborn children, I think is really concerning for those of us that feel that this issue, that the life issue, is a critical issue.”
According to LifeNews, human cloning, abortion, and assisted suicide are activities Kagan is already on record as supporting. Files released from the Clinton library about Kagan’s time in the Clinton Administration show her advocating cloning humans.
Kagan served as a top domestic policy advisor for ex-President Bill Clinton from 1997-1999 and she played a key role in shaping and executing his response to new cloning technologies. “Memoranda and emails released by the William J. Clinton Presidential Library on Friday document Kagan’s involvement in crafting an anti-life position and legislative proposal,” says Americans United for Life, whose attorneys investigated them.
A May 29, 1997 memo from Kagan to Clinton and Jack Gibbons, the Assistant to the President for Science and Technology, shows Kagan suggested that Clinton support banning only the kind of human cloning that results in the birth of a live baby. She urged “that [the President] support domestic legislation banning human cloning” but added Clinton should “support the gist of France’s proposed cloning paragraph [in the G-8 Communique].”
Republicans, looking for clues to Kagan’s judicial philosophy, have turned to memos written throughout her career and to the judicial philosophies of those for whom she worked.
Kagan has also contributed money to the National Partnership for Women and Families, which has ties to NARAL Pro-Choice America and Emily’s List, an organization that helps get pro-abortion Democratic women elected to Congress.
Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, said the little information available is revealing. “A lot of people have been trying to paint her as a moderate,” she said. “These documents really show that that’s not who Elena Kagan really is.”
Kagan has also been an outspoken critic of Rust v. Sullivan. In that case, the U.S. Supreme Court said Department of Health and Human Services regulations, which keep Title X family planning funds from paying for abortion programs, are constitutional.
“Rust illustrates the way in which government funding may have both more potent and more disruptive effects than direct government speech,” Kagan wrote in an article. “How better, then, to communicate an anti-abortion message:  through direct speech or through selective subsidization of health care providers?  The latter course…wreaks havoc on the ability of those private parties in the best position to challenge the message to provide a counterweight to government authority.”
“That raises questions as to whether she’ll be able to leave the Current Events behind, if she’s on the Supreme Court,” said Severino, “because it’s a very different type of role.”
As counsel for President Clinton, Kagan worked on a memo regarding the partial-birth abortion ban legislation. Clinton had vetoed the measure and several Democrats had offered amendments to the bill that made it ineffective, including Rep. Tom Daschle of South Dakota, whose amendment included broad exceptions that would have gutted the law.
“We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122,” she wrote, “and prevent Congress from overriding your veto.”
Tom Fitton, president of Judicial Watch, said there is little doubt where Kagan stands.
“You see quite a radical liberal and President Obama knew what he was doing when he nominated her,” he said. “These documents are confirming that she’s as far left as everyone suspected.”
Opponents to the nomination are also looking at those whom Kagan deems “heroes,” including Aharon Barak, a retired chief judge of the Supreme Court of Israel, who was made famous by his willingness to legislate from the bench.
Barak was awarded the Peter Gruber Foundation Justice Prize at Harvard Law School in 2006.
In her introduction of Barak, Kagan called him “my judicial hero. He is the judge who has best advanced democracy, human rights, the rule of law, and justice.”
But it should be noted that Israel does not have a Constitution, so following Barak’s example that a judge “should adapt the law to life’s changing needs” does not work in the U.S. “The question Americans want answered is” Fitton said, “is this the type of person we want appointed to the highest court in the land?”