In The Courts

Kagan's Star May Dim as Voters Reject Incumbents

Thursday, May 20, 2010

Mid-term elections got off to a volatile start this week. That could change the political calculus surrounding Elena Kagan's High Court nomination. Voters gave her weak polling results on Tuesday and many wonder where she stands on Roe.

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Elena Kagan(WOMENSNEWS)--Although senators of both parties who have met with Supreme Court nominee Elena Kagan this week have said the 50-year-old former dean of Harvard Law School is highly qualified to be the fourth woman on the court, American voters aren't so sure.

The Rasmussen poll released Tuesday found 39 percent of likely voters support the nomination, 39 percent oppose it and 22 percent are undecided.

In other years that poor showing with the populace might not matter so much.

But after this week's first batch of primaries since President Obama's election--where voters in Pennsylvania and Kentucky displayed an unusual willingness to boot out incumbents--senators in charge of Kagan's confirmation hearings might be less inclined to give the same easy nod they gave her nomination as the country's first female solicitor general.

The Senate voted 61 to 30--one more vote than needed--in 2009 to confirm Kagan in the post, sometimes called the 10th Supreme Court justice, in charge of representing the government at the highest judicial level by defending laws passed by Congress, agency regulations and presidential actions that come before the court.

The same easy confirmation was widely expected in the High Court hearings as well, due in part to a shortage of clues about Kagan's judicial philosophy.

Unlike Justices Sandra Day O'Connor, Ruth Ginsburg and Sonia Sotomayor, no treasure trove of opinions exist that might reveal how she might decide cases on health reform and other issues that may come before the court. Kagan is the first nominee to have no judicial experience in 38 years.

Unlike William O. Douglas, another Supreme Court justice who had no judicial experience but had published many articles on corporate law during his five years as a professor at Yale Law School, Kagan has published only a handful of law review articles as a professor at the law schools of the University of Chicago and Harvard, her alma mater.

Lack of Paper Trail

"Kagan served as dean for almost six years at Harvard during her 13 years in academia, which doesn't leave much time to write on significant legal issues," said Detlev F. Vagts, Bennis professor of international law emeritus at Harvard Law School. "Being dean is a management position that involves budgets and personnel. Being a judge is an intellectual activity that involves writing opinions and persuading other judges. It will take some time for Kagan to acquire the skills of a judge, but what is most critical is whether she will be able to assume Justice Stevens' role as the leader of the liberal bloc. Everyone assumes that Kagan is a liberal, but no one knows for sure because she lacks a paper trail."

The lack of paper trail raises questions about Kagan on numerous issues, including her stance on abortion at a time when Roe v. Wade, the 1973 decision guaranteeing women's right to abortion, hangs in the balance as its staunch defender, Justice John Paul Stevens, retires.

Groups on both sides of the abortion issue have called on Kagan to clarify her views on the constitutional right to privacy and other legal protections of abortion.

Justice Stevens' influence in preserving a woman's right to choice can't be underestimated, Sonja R. West, a clerk to Stevens in 1999, told Women's eNews.

"For 35 years, he was the court's most consistent supporter of choice," said West, an assistant professor of law of the University of Georgia School of Law in Athens. "In addition to having an incredible intelligence and knowledge of the law, Justice Stevens, a white Protestant male from a fairly affluent family, could view abortion from the standpoint of a poor woman and build coalitions on the court across ideological lines. He also used his position as associate judge wisely in assigning opinions."

In the 2000 abortion rights case, he brought together a five-vote majority that upheld Roe and struck down the Nebraska law that barred what the law referred to as partial birth abortion, she said.

Memos Raise Questions

Last week, memos Kagan wrote as a White House advisor to President Clinton from 1995 to 1999 were unearthed by an Associated Press reporter and raised questions about whether she would continue Justice Stevens' strong support for Roe. v. Wade, among other issues critical to women.

A 1977 memo co-authored by Kagan and her boss Bruce Reed at the Democratic Policy Council urged Clinton to support a compromise amendment to the Partial Birth Act. Republicans were trying to push the act through Congress as part of the party's strategy to use a ban on abortions after 20 weeks as a stepping stone to overthrow Roe v. Wade. Clinton followed their advice. That amendment failed but a stricter law passed later.

Some answers may be contained in the 160,000 documents in the Clinton Presidential Library where the memos Kagan wrote as associate White House counsel, domestic policy advisor and deputy of the Domestic Policy Council are stored.

Last week, the Washington Post reported on a memo written by Kagan and Reed saying that expanding the dependent care tax credit would be "very expensive." Supporters for children's rights are concerned that this might mean that Kagan has a limited commitment to a key policy favored by working families.

Kagan's role in Clinton's controversial proposal to end the system of guaranteeing cash assistance to the poor--mostly mothers and children--may also haunt her hearings with the judiciary committee, which will consider her nomination this summer. Reed, who coined the slogan "ending welfare as we know it," devised a system of rules that critics call draconian since they require recipients to work without providing them with sufficient support for child care and education and training.

Kagan's advice to Clinton concerning regulation of federal health plans may also be a matter of keen interest since more than a dozen states have filed suits challenging aspects of Obama's health care reform bill.

Sharon Johnson is a New York-based freelance writer.

 
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