Elena Kagan

Elena Kagan, May 20, 2009

Template:TOCnestleft Elena Kagan (born April 28, 1960. New York, New York) is a former Harvard and Chicago Law Professor, and the current Solicitor General of the United States. On May 10, 2010, she was nominated by President Barack Obama to become the 112th Justice of the U.S. Supreme Court.

Personal Life

Kagan's father was a lawyer and former chairman of a community board on Manhattan’s Upper West Side, while her mother Gloria Kagan, taught for many years at Hunter College Elementary School. Her two brothers are also teachers.

Robert Kagan is a Yale-educated lawyer who fought the establishments of co-ops on behalf of tenants associations.

Kagan has never married and is single with no children.

Education

Kagan graduated from Hunger College High School in 1977. She studied at Princeton University from 1977 - 1981, receiving a Bachelor of Arts before attending Worcester College at Oxford University where she received a Master of Philosophy in 1983. She received a Juris Doctor from Harvard Law School in 1986.

Early political activism

Kagan first became interested in politics in high school and worked as a legislative intern for far left Rep. Ted Weiss, a Democrat from New York, during the summer of 1978, and as deputy press secretary for the almost as extreme Elizabeth Holtzman in the summer after her junior year.

Kagan’s political beliefs emerged most clearly in an opinion piece she wrote for the ‘Prince’ a few weeks after that 1980 election night, in which she described her disappointment at Holtzman’s loss and her own liberal views. “I absorbed ... liberal principles early,” she said. “More to the point, I have retained them fairly intact to this day.”

In the piece, Kagan also expressed her dissatisfaction with the state of the political left at the time, lamenting the demise of “real Democrats — not the closet Republicans that one sees so often these days” and the success of “anonymous but Moral Majority-backed ... avengers of ‘innocent life’ and the B-1 Bomber, these beneficiaries of a general turn to the right and a profound disorganization on the left.”

She hoped that the future would “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.”

Where I grew up on Manhattan’s Upper West Side nobody ever admitted to voting for Republicans,”

Starting in the 1950s, “real’’ Democrats, including my mother, organized themselves into brigades of “reform’’ Democrats in opposition to the old Tammany Hall machine. In 1960 they managed to elect one of their own, William Fitts Ryan, to Congress a watershed event in neighborhood history.

Ryan was a far left Irish-American in an heavily Jewish area. He did a "fine job of representing the Upper West Side’s brand of liberal politics, opposing the Vietnam War early on, marching for civil rights in the South, and advocating admission of mainland China to the United Nations a radical position in the early 1960s."

Student activism

Elena Kagan was an ally of Eliot Spitzer in Princeton student government

The Daily Princetonian

Kagan on the Princetonian

In 1980 Elena Kagan was a Editorial chairman of The Daily Princetonian .

Kagan was responsible for the opinion content of the paper and the unsigned editorials that appeared almost daily — many of which took decidedly liberal stances on national and campus issues.

Steven Bernstein, the ‘Prince’ chairman who appointed Kagan to her position, said that Kagan’s remarkable intellectual capacity made her stand out.

“Elena was an obvious choice for me as editorial page editor because she formulated her opinions beautifully, even back then,” he said. “They were very tightly reasoned, clearly thought-out, fair, forceful, cogent.”

Prior to being appointed editorial chairman, Kagan was a news writer for the ‘Prince.’

In her capacity as editorial chairman during her junior and senior years, Kagan spent nearly every evening at the ‘Prince’ newsroom. But Bernstein cautioned that Kagan likely did not write all the editorials. “That wasn’t her style ... She was a very collaborative person,” he said.

“I don’t remember her participating in marching, protesting, things like that,” Bernstein said. “I would probably describe her back then — her politics — as progressive and thoughtful but well within the mainstream of the ... sort of liberal, democratic, progressive tradition, and everything with lower case.”

Socialist Sentiments?

In her undergraduate thesis at Princeton entitled "To the Final Conflict: Socialism in New York City, 1900-1933,", Kagan lamented the decline of socialism in the country as "sad" for those who still hope to "change America." She asked why the "greatness" of socialism was not reemerging as a major political force:

"In our own times, a coherent socialist movement is nowhere to be found in the United States. Americans are more likely to speak of a golden past than of a golden future, of capitalism's glories than of socialism's greatness. Why, in a society by no means perfect, has a radical party never attained the status of a major political force? Why, in particular, did the socialist movement never become an alternative to the nation's established parties?"

"Americans are more likely to speak of a golden past than of a golden future, of capitalism’s glories than of socialism’s greatness,” she wrote in her thesis. “Conformity overrides dissent; the desire to conserve has overwhelmed the urge to alter. Such a state of affairs cries out for explanation.”

She called the story of the socialist movement’s demise “a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America ... In unity lies their only hope.”

Kagan dedicated her senior thesis at Princeton to her brother -

"Whose involvement in radical causes led me to explore the history of American radicalism in the hope of clarifying my own political ideas."

Wilentz connection

Elena Kagan spent her senior year conducting research for her thesis, under the direction of Sean Wilentz.

Wilentz has defended Kagan against her critics, noting that she was adept at removing her personal beliefs from her academic research on labor and radical history. “Sympathy for the movement of people who were trying to better their lives isn’t something to look down on,” he explained. “Studying something doesn’t necessarily mean that you endorse it. It means you’re into it. That’s what historians do.”

According to Wilentz,

“Elena Kagan is about the furthest thing from a socialist. Period. And always had been. Period.”

Wilentz reiterated that, , Kagan’s stellar mind ideally qualifies her for the Supreme Court nomination. “She’s not an ideologue; she’s very pragmatic,” he said. “She’s a woman whose ... deepest dedication is to the constitution of the United States. Which some people can think is a terribly radical thing, and some people can think is a terribly reactionary thing, but I think is exactly where she ought to be for the position she is being considered for.”

Campaign for a Democratic University

Kagan traveled in the same circle as former New York governor Eliot Spitzer , who served as Undergraduate Student Government chairman during his time at the University. In April of their senior year, Kagan, Spitzer and six other campus leaders — all members of the Coordinating Council of the Campaign for a Democratic University — signed a manifesto that appeared in the ‘Prince.’

The group sought to “effect a fundamental restructuring of University governance,” the piece stated, adding that “the administration rules this campus by decree. Decisions affecting all aspects of undergraduate student life are made unilaterally by Nassau Hall; effective student participation in University governance is a myth.”

The piece cited a case in which students were only able to initiate opposition to a ban on pornography when they “accidently” learned of the plan. “This case typifies how the administration makes decisions,” it said. “Discussions are held behind closed doors; students are ‘consulted’ only after Nassau Hall has reached its decision and agreed to a uniform position.”

Walzer relationship

At Princeton Sarah Walzer, was Elena Kagan's close friend and law-school roommate.

In 2010, when rumors circulated that Elena Kagan was a lesbian, Sarah Walzer publicly defended her friend.

“I’ve known her for most of her adult life and I know she’s straight,” said Sarah Walzer, Kagan’s roommate in law school and a close friend since then. “She dated men when we were in law school, we talked about men — who in our class was cute, who she would like to date, all of those things. She definitely dated when she was in D.C. after law school, when she was in Chicago – and she just didn’t find the right person.”

Sarah Walzer is the daughter of Princeton academic and leading Democratic Socialists Organizing Committee/Democratic Socialists of America member Michael Walzer.

Oxford

At Princeton Kagan won a fellowship to study at Oxford, where her chosen field of study was “the history of British and European trade unionism.”

Career

Legal

While studying at Harvard Law School from 1983 - 1986, Kagan worked in Lawyer's offices each Summer as a paralegal, associate and research assistant. From 1986 - 1987 she worked as a Judicial Clerk for Democratic Socialists of America supporter, Hon. Abner Mikva in the U.S. Court of Appeals for D.C. Circuit 1986 - 1987. From 1987 - 1988 she worked as a Judicial Clerk for Hon. Thurgood Marshall in the U.S. Supreme Court. Following the defeat of Dukakis in 1988, Kagan worked as an associate at Williams & Colmolly in Washington, D.C from 1989 - 1991.

Professor

From 1991 - 1997, Kagan served alongside Barack Obama as a professor at the University of Chicago Law School. From 1999 - the present, she has been a professor at Harvard Law School, and in 2003 was elected as Dean of the School.

Political

In 1988 Kagan was a staff member based in Boston, Massachusets for the campaign to elect Democratic nominee Michael Dukakis as President of the United States. In this capacity she worked on "defense research" — i.e., preparing responses to attacks on Governor Dukakis's record. In Summer 1993 she was appointed by Senator Joe Biden as Special Counsel for the Senate Judiciary Committee. From 1995 - 1996 she served in the Executive Office of the President as Associate Counsel, and from 1997 - 1999 she served as Deputy Assistant to President Bill Clinton for Domestic Policy.

Partial Birth Abortion Controversy

Kagan's suggestions on ACOG position on Partial Birth Abortion ban, 1996 (click to enlarge)

In 1996 while serving as associate counsel for the Clinton Administration, Kagan wrote the medical opinion of the partial-birth abortion procedure for the American College of Obstetrics and Gynecology (ACOG). The initial draft of ACOG's statement found no exceptional reason for the existence of partial-birth abortion.

ACOG's original statement on the ban made it clear that the organization could find no instance where partial birth abortion would be the only procedure to prevent loss of life or serious to the woman:

"A select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman. Notwithstanding this conclusion, ACOG strongly believes that decisions about medical treatment must be made by the doctor, in consultation with the patient, based upon the woman's particular circumstances."

When Kagan read the above draft position of ACOG on the Partial Birth Abortion ban, she wrote in a White House memo that it,

"would be disaster – not the less so (in fact, the more so) because ACOG continues to oppose the legislation."

Kagan then made a suggestion on the key point of contention which read (see scanned memo to the right):

"An intact D+X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman."

The final statement put out by ACOG used Kagan's suggested alterations verbatim:

"A select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman. An intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances can make this decision."

When questioned about the second memo at by Republican Sen. Orrin Hatch on 29 June, 2010, Kagan was evasive. A partial transcript of the conversation follows:

“Did you write that memo?” Hatch asked.

“Senator, with respect,” Kagan began, “I don’t think that that’s what happened — ”

“Did you write that memo?”

“I’m sorry — the memo which is?”

“The memo that caused them to go back to the language of ‘medically necessary,’ which was the big issue to begin with — ”

“Yes, well, I’ve seen the document — ”

“But did you write it?”

“The document is certainly in my handwriting.”

In summary, it is clear that in 1996, Kagan was instrumental in altering ACOG's position on partial birth abortion so that the organization stated that the procedure may be medically necessary.

National Partnership for Women and Families

In 1999, as a result of donations she had made to the organization, Kagan stated that she was a member of the Women’s Legal Defense Fund which changed its name to the National Partnership for Women and Families in 1998.

Solicitor General

On January 5, 2009, Elena Kagan was nominated by the Obama Administration for the position of Solicitor General in the Department of Justice and confirmed on March 19, 2009.

Chicago Council of Lawyers

From 1993 - 1995, Kagan was a member of the Board of Governors for the Chicago Council of Lawyers. The Council was founded by Harold Washington’s former counsel, Judson Miner.

ColorLines Conference

On August 30, 2003 Kagan addressed a Plenary Session: The Future of Race in the Law, at a ColorLines conference.

U.S. Supreme Court

from left: Joe Biden, Elena Kagan, Barack Obama

On May 10, 2010, Kagan was selected as President Barack Obama's nominee to become the 112th Justice of the U.S. Supreme Court to fill the vacancy from the impending retirement of Justice John Paul Stevens at the end of the Supreme Court's 2009–2010 term. Kagan was one of Obama’s runners-up in 2009 when he nominated Sonia Sotomayor to the court.

Advocacy

From 2008, Kagan has served on the advisory board of the American Indian Empowerment Fund and on the Board of Directors for Equal Justice Works.

Position on Military Recruitment Policy

During her service as dean of Harvard Law School, Kagan refused campus access for military recruiters because she felt the military's "don't ask, don't tell" policy discriminated against homosexuals. She has referred to the policy as "a moral injustice of the first order."

Relationship to Judith Lichtman

In 2009, veteran feminist Judith Lichtman wrote a letter "wholeheartedly" supporting Elena Kagan's solicitor general nomination, describing Ms. Kagan as a "friend and colleague."

In June 2010, Lichtman was invited to the White House to see her friend Elena Kagan nominated to the Supreme Court.

Earlier this month I was invited by the White House to watch President Obama nominate Solicitor General Elena Kagan to serve on the Supreme Court.

The ceremony was even more moving than I expected, and that took me a little by surprise.

I had tears in my eyes for much of that morning ceremony in the East Room. If Kagan is confirmed, women will comprise one-third of the Supreme Court. That's a fraction that does not yet represent our proportion of the population--but it's a stake that was once unimaginable for me and most of my peers.

Lichtman also wrote of Kagan;

I had the honor and privilege of attending a special announcement ceremony at the White House on Monday, and I couldn’t be more pleased with President Obama’s decision to nominate Solicitor General Elena Kagan as the next United States Supreme Court justice.

I have known her for many decades and have deep respect for her commitment to equal justice.

Judges are the gatekeepers of our fundamental rights, and Elena Kagan gets it. She knows that the Supreme Court decides cases every year that touch women’s lives. And she has a proud history of public service, a fair and thoughtful approach to legal issues, a record of extraordinary accomplishment, and a history of working effectively with people who hold diverse political and legal views.

External Links

• Elena Kagan on Judgepedia

References

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