When John Paul Stevens announced that he would be stepping down from the Supreme Court after three-and-a-half decades on the bench, Barack Obama lauded the outgoing Justice as a “brilliant, non-ideological, pragmatic” man, “committed above all to justice, integrity, and the rule of law.” The President pledged to seek, for Stevens’ successor, someone “with similar qualities” – an individual who understands that “in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.” Monday morning Obama announced that choice: Elena Kagan.
This not the first time the President has named Kagan to a prominent post in government. During his first week in office, Obama, who has known Kagan since the two were colleagues on the University of Chicago Law School faculty during the 1990s, named her for the post of U.S. Solicitor General, the nation’s second-most-influential legal authority. It bears mention that Kagan, at the time of that appointment, had never argued a case in any court and had published only three major articles along with a handful of minor pieces. Sensing the special connection that existed between Obama and the new Solicitor General, Center for Security Policy CEO Frank Gaffney presciently depicted Kagan’s assignment as “a stepping-stone for her appointment to the Supreme Court.” To understand why Obama holds Kagan in such high regard, we must take a closer look at the political and legal positions she has embraced over the course of her adult life, and see how they dovetail with those of the President.
A week after Ronald Reagan’s presidential victory in November 1980, a twenty-year-old Elena Kagan, who was then a student at Princeton University, contributed a piece to the Daily Princetonian, wherein she gave voice to her angst over the apparent demise of the left. She wrote that her immediate “gut response” to Reagan’s election had been to conclude “that the world had gone mad, that liberalism was dead, and that there was no longer any place for the ideals we held or the beliefs we espoused.” After having taken some time to calm down, Kagan predicted, with a hopeful spirit, that “the next few years will be marked by American disillusionment with conservative programs and solutions, and that a new, revitalized, perhaps more leftist left will once again come to the fore.”
The following year, Kagan penned her senior thesis—titled “To the Final Conflict: Socialism in New York City, 1900-1933”—wherein she specifically thanked her brother Marc, “whose involvement in radical causes led me to explore the history of American radicalism in the hope of clarifying my own political ideas.” In the body of that work, Kagan lamented that “a coherent socialist movement is nowhere to be found in the United States”; that “Americans are more likely to speak of … capitalism’s glories than of socialism’s greatness”; that “the desire to conserve has overwhelmed the urge to alter”; that “in a society by no means perfect,” no “radical party” had yet “attained the status of a major political force”; that “the socialist movement [had] never become an alternative to the nation’s established parties”; and that the Socialist Party had “exhausted itself forever and further reduced labor radicalism in New York to the position of marginality and insignificance.” Kagan called these developments “sad” and “chastening” for “those who, more than half a century after socialism’s decline, still wish to change America.”
After graduating from Princeton, Kagan went on to earn a Master of Philosophy degree from Worcester College at Oxford University in 1983, and a J.D. from Harvard Law School in 1986. She then took a job as a law clerk for Judge Abner Mikva, a leftist member of the U.S. Court of Appeals for the District of Columbia Circuit. Later, she clerked for U.S. Supreme Court Justice Thurgood Marshall, whom she now identifies as her hero. In 1988 Kagan worked on the presidential campaign of Democrat Michael Dukakis. And three years later she became an assistant professor at the University of Chicago Law School, where, as noted above, she first met Barack Obama.
From 1995 to 1999, Kagan served under Bill Clinton in various roles: Associate White House Counsel, Deputy Assistant to the President for Domestic Policy, and Deputy Director of the Domestic Policy Council. In June 1999, Clinton nominated Kagan to the U.S. Court of Appeals for the District of Columbia Circuit. But because the Senate Judiciary Committee’s Republican chairman, Orrin Hatch, subsequently elected not to schedule a hearing on Kagan, her nomination was never confirmed.
In 2003, Harvard University president Lawrence Summers appointed Kagan to be the dean of Harvard Law School. It was in this role that Kagan expressed her most infamous criticisms of the U.S. military. In Kagan’s view, the armed forces ought to welcome open homosexuals to their ranks without the slightest reservation; any policy to the contrary, she views as bigotry of the lowest order. In an e-mail that she disseminated to the entire Harvard Law School community in October 2003, Kagan wrote: “I abhor the military’s discriminatory [don’t ask,don’t tell] recruitment policy” – characterizing it as “a profound wrong, a moral injustice of the first order … a wrong that tears at the fabric of our own community.”
Kagan has long opposed the so-called Solomon Amendment, a law that denies federal funding to any university that “has a policy or practice … that either prohibits, or in effect prevents” military personnel “from gaining access to campuses, or access to students … on campuses, for purposes of military recruiting.” This Amendment was enacted in 1996, in response to a trend where many law schools, as gestures of protest against a federal law barring open homosexuals from military service, were discouraging and/or prohibiting military recruitment on their campuses. When a federal appeals court struck down the Solomon Amendment, Harvard Law, under Kagan’s stewardship, became the first major law school in the United States to ban official recruiting on campus. Ed Whelan of the conservative Ethics and Public Policy Center has written: “I doubt that the American public will be impressed that Kagan kicked the military off campus in wartime but welcomed law firms that were donating their services to terrorists.”
Kagan also filed an amicus brief urging the Supreme Court to declare the Solomon Amendment unconstitutional. The Court, however, unanimously rejected Kagan’s position. Frank Gaffney observed that Kagan’s passionate opposition to the Solomon Amendment reflected “her hostility toward the U.S. military.” But that very hostility has proven to be to Kagan’s political advantage, because it is ideologically compatible with that of President Obama, who, in a moment of unguarded candor during the presidential campaign, suggested that U.S. troops in Afghanistan were doing a disservice to their mission by “just air raiding villages and killing civilians.” When Kagan was confirmed as Solicitor General last year, Gaffney noted that the “likely consequence” would be that “the Justice Department will play an adversarial, rather than supportive, role for our armed forces in an age when they are increasingly subjected to ‘lawfare’—the use of legal proceedings to interfere with and, where possible, defeat their missions.”
It is noteworthy that Kagan’s understanding of the Supreme Court’s role mirrors that of her “hero,” Thurgood Marshall. In one of her legal writings, Kagan cited Marshall’s assertion that the Constitution, “as originally drafted and conceived,” was “defective.” This view fits hand-in-glove with Obama’s celebrated contention that the Constitution “is not a static but rather a living document and must be read in the context of an ever-changing world.”
Kagan has also quoted Justice Marshall saying that the Supreme Court’s mission is to “show a special solicitude for the despised and the disadvantaged.” In those words, we can hear the echoes of Obama saying that in many legal cases, “the critical ingredient” is neither what the law nor the Constitution say, but rather “what is in the judge’s heart”; that a judge must prove that he or she is not “dismissive of concerns that it is harder to make it in this world … when you are a woman rather than a man”; that a judge ought not “sid[e] on behalf of the powerful against the powerless”; and that a judge should be “somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old.” In essence, these are calls for a jurisprudence of the heart rather than of the law; a jurisprudence aimed at settling old scores on behalf of aggrieved “victim” groups, rather than meting out equal justice to individuals regardless of their demographics.
Ideologically, Elena Kagan is a kindred spirit of Barack Obama. As such, she will keep Justice Stevens’ Supreme Court seat firmly situated on the political left. By no means is this the least bit surprising. Elections have consequences, sometimes very predictable ones.