Supreme Court Nominee, Elena Kagan OFFICIAL DISCUSSION THREAD II

[Laura Cereta]

The first one is quite long and threads often end up "diluted" when they get too long. Please feel free to continue with the other one but I think a second thread for posting new articles and continuing the ongoing discussion won't hurt.

[Laura Cereta]

Clinton aides speak out on Kagan (http://www.politico.com/news/stories/0510/37493.html)
19 May 2010, Politico

Supreme Court nominee Elena Kagan was simply trying to carry out President Bill Clinton’s policies when she served as an adviser in his White House and wasn’t necessarily advancing her own policy views, former Clinton aides argued Wednesday in a conference call organized by the Obama White House.

“Her role was really to implement policies that were set by President Clinton,” former White House Chief of Staff John Podesta said.

The comments from the Clinton aides appeared intended to counter a series of news reports about White House memos from the Clinton era that appeared to show Kagan on the centrist side of policy debates on issues such as abortion and race. The former Kagan colleagues stressed her work on traditional liberal priorities such as defeating tort reform and increasing funding for child care.

“She was very much animated by how policy actually affected real people,” said a former deputy to Kagan in the domestic policy office, Neera Tanden. “She’s very practical. She wanted to know how it would actually work.”

However, the ex-Clinton advisers on the call declined to discuss Kagan’s views on the Supreme Court’s landmark abortion rights decision, Roe v. Wade.

“It’s presumptuous of us to give an answer of what we think she might think,” said Podesta, now president and CEO of Center for American Progress, a progressive think-tank. “Obviously, she dealt with the abortion matter in the context of giving advice to the president, but she was trying to implement the president’s views about what he wanted to do on late-term [abortion.] She gave him advice about that but that doesn’t imply anything other than that she was trying to support the president….Why would we presume to put words in her mouth?”

Added a White House spokesman on the call, Josh Earnest, “Everybody’s [here] to talk about working with her in the White House. It’s not an opportunity for them to sort of speculate about her views.”

“I thought this whole call was about who she is, and what she thinks and what she’s done,” said Jeffrey Toobin of The New Yorker, who asked about Kagan’s take on Roe and a Supreme Court case that discussed phasing out race-based affirmative action within 25 years.

Asked about memos suggesting Kagan clashed with some Clinton advisers working on his initiative on race, Podesta described an internal divide within the Clinton team between those who favored more dialogue on racial issues and those who wanted to move aggressively to end racial disparities.

“There were kind of two schools of thought. One was to use [Clinton’s] powerful voice to engage the American people to reflect on the vestiges of racism…There was another school that said our job is to put policy forward that will end the vestiges of racism,” Podesta said. “She was on the side of pushing policy forward.”

Memoranda from the Clinton Presidential Library in Little Rock suggest that the debate went beyond action versus dialogue. Some of the smattering of documents presently available to the public suggest Kagan urged Clinton to reject efforts to pursue race-conscious policy measures and instead put her weight behind attempts to address racial inequities through broader policies aimed at the poor and disadvantaged.

“I didn’t read it as she was stating a position for class-based affirmative action but more stating a position that ensuring that policies had a disproportionate impact on race. Those are two actually different things,” said Tanden, who said she was not privy to the discussion.

[Laura Cereta]

Kagan Attacked With Bad Metaphor About Ice Rinks (http://www.huffingtonpost.com/2010/05/21/kagan-attacked-with-bad-m_n_585432.html)
21 May 2010, HuffPo


The Judicial Crisis Network's latest broadside against Elena Kagan may be addled but it sure is entertainingly maudlin, because of the way it mines your sentimental sensitivities about ice rinks and loneliness or something.
Elena Kagan has become famous as being the dean that built the ice rink at Harvard Law School. Nostalgic images of skaters laughing and spinning away their exam troubles come to mind - Sleigh Ride, Currier & Ives, and all. In reality, it went almost unused, at least when I was a student, because there was no more than a handful of students who actually owned ice skates and had time between classes to take a jaunt around the rink. (It has since been closed due to budget issues - it was hard to justify the expense given its underuse.) It was a brilliant feel-good political move to reach out to students on campus, but it was almost entirely symbolic.
Right away, of course, you are all: "RAAAAH! HISTORY'S GREATEST MONSTER, et al!" But it gets better, because this is all a big metaphor, for troop-hating: "The same could be said for her treatment of the military on campus."

Right. See, there are "two ways to interpret Kagan's refusal to allow military recruiting on campus" [Ed. note: No such thing occurred. Kagan barred recruiters from using the Office of Career Services, not "on campus."], according to the Judicial Crisis Network.

1. "On one side are those who believe it didn't really affect recruiting levels at all, because the student-run Veterans Association was able to pick up the slack."

2. "On the other hand, the ban may have actually affected recruitment."

So, basically her decision either DID NOT affect recruitment or it MAY HAVE affected recruitment. When the worst-case scenario is a "may have," it's hard to see where the judicial crisis is. Basically, it's this: Kagan was supportive of student veterans in some respects, but "may have" (always, it's "may have") inconvenienced them in other respects (which basically sounds like every single college dean in the history of higher education).

The post concludes: "She cozied up to the students who were veterans but when it came to action they were left like the lonely ice rink, out in the cold." Huh? How would you alleviate the "loneliness" of an ice rink? Isn't everything in Boston "out in the cold" for months at a time? And wasn't the original image that of lonely skaters, inside the ice rink? This really is a job for the Metaphor Crisis Network.

[sojourner]

Everyone had hoped that with a complete disclosure of Elena Kagan’s writings that we would have a greater understanding of her judicial philosophy and rest assured that her political activities would not be transferred to her role as a Supreme Court justice. Unfortunately, uncovering her positions on the role of the judiciary has only confirmed previous suspicions that she endorses the use of the judiciary as a mechanism to enact her social beliefs.

In her thesis, written during her tenure at Oxford University, she believes that the judiciary must be a mechanism of social change. Oddly, she also believes that the power and ability that comes with sitting on a court can be corrupting.

Kagan wrote: “U.S. Supreme Court justices live in the knowledge that they have the authority to command or to block great social, political and economic change… At times, the temptation to wield this power becomes irresistible. The justices, at such times, will attempt to steer the law in order to achieve certain ends and advance certain values. In following this path, the justices are likely to forget both that they are judges and that their court is a court.”

It’s curious then, that she would also argue that courts have a responsibility to look beyond the facts of a case and rule based upon prejudices, ethical biases, and social desires.
The rest of the story (http://www.humanevents.com/article.php?id=37241)

[foxyladi]

people grow and change.

[Laura Cereta]

http://thenewagenda.net/wp-content/uploads/2010/06/kagan.jpg
Recently, Washington Post fashion reporter Robin Givhan chided Elena Kagan for sitting with her legs open, and Salon Broadsheet blogger Tracy Clark Flory responded with a blog accusing Givhan of subtle homophobia. “It feels like Kagan is, however indirectly, being indicted over her sexuality — once again,” Flory wrote. Taking issue with a photo caption in the Post article, which read “UNUSUAL: Most women, including Sen. Amy Klobuchar, cross their legs when sitting, but not Kagan,” Flory suggests, “Maybe because she’s an “unusual” lesbian.”

Why is Kagan’s refusal to “sit like a lady” being linked to homosexuality? Isn’t this more a case of sexism than homophobia? Last I checked, there are a whole lot of straight ladies out there who keep their hair spiky, don’t wear makeup, play (gasp) softball and, yes, sit with their legs open like a 16 year old boy on a packed NYC subway.

Flory’s defense of Kagan is admirable, but to suggest unfeminine behaviors are a code for calling someone gay makes me uncomfortable. A massive amount of bullying in schools occurs because kids and teens police each other for gender norm violations. Girls use epithets like “dyke” or “lesbian” to label girls who refuse to comply with strict gender norms. Are you too political? You’re a lesbian. Why aren’t you obsessing about guys with the rest of us? Guess you’re a dyke. Why do you spend so much time with your best friend? Probably because you’re sleeping together. You get the picture. As with the word “slut,” the label has little to do with behavior and everything to do with gender policing.

I’m a rabid Broadsheet fan, and I am grateful for the vigilance of feminist bloggers as Kagan goes through the nomination firestorm. But let’s not go too far in calling everything homophobia (not least because by continuing to bring it up, we may perpetuate the rumors). Givhan’s criticisms were, for my money, giving voice to the sexist norm that women need to take up less space by crossing their legs. Her article is just a grown up version of the girls who patrol the hallways with their withering elevator glances, reducing you to loser status because you don’t have the right handbag or wear the right jeans.Read @ The New Agenda (http://thenewagenda.net/2010/06/03/why-talking-too-much-about-kagan%e2%80%99s-sexuality-fuels-gender-policing/#comment-46532)

[Laura Cereta]

Elena Kagan voice of caution (http://www.politico.com/news/stories/0610/38152.html)
5 June 2010, Politico


Supreme Court nominee Elena Kagan was deeply involved in helping President Bill Clinton navigate a series of politically explosive culture war issues such as abortion, affirmative action and gun control during her tenure as White House deputy domestic policy adviser in the 1990s, newly-released documents show.

The 46,500 pages of memos, clippings and assorted paperwork from Kagan’s White House files that were posted online Friday by the Clinton Presidential Library show Kagan to have cautiously steered Clinton toward the middle ground and away from extremes on policy issues such as crime control and anti-smoking legislation.

Her recommendations regularly cite fears that a negative reaction from Republicans could end up doing damage to the administration’s policy goals.

However, divining Kagan’s personal views from the documents is difficult because her own position is not always clear. Even when it is, current White House aides pushing for her confirmation say the stances she took may simple demonstrate her advocacy for Clinton’s positions rather than any views of her own.

“The documents reflect Kagan’s efforts to advance President Clinton’s well-established policy agenda, and they should not be interpreted as an outline of her personal positions on specific policy issues,” White House spokesman Ben LaBolt said.

LaBolt pointed to comments by a Bush administration policy official, Tevi Troy, who said such internal memos tend to “synthesize the views of the various administration players” rather than offering “full-throated defenses of [an aide’s] personal beliefs.”

But generally the files reinforce the impression from previously-released memos from the Clinton Library that as a domestic policy adviser from 1997 to 1999, Kagan sometimes took positions that made her a relative centrist within the Clinton administration, though some of her allies say those stands are more an indication of pragmatism on Kagan’s part than of political moderation.
Conservatives were not impressed. Carrie Severino of the Judicial Crisis Network said that the documents were gradually reveaing Kagan in “the decidedly clearer tones of a committed liberal,” and also raised the question of "whether she would be able to set aside her deeply ingrained political instincts to evenhandedly apply the law."

The newly-released documents, also produced to Congress at the request of the Senate Judiciary Committee, show:

—Kagan called proposals for a federal law to ban physician-assisted-suicide “a fairly terrible idea.” The Justice Department and the Department of Health and Human Services wanted Clinton to publicly oppose a federal ban proposed by Sen. Orrin Hatch (R-Utah) and Rep. Henry Hyde (R-Ill.) Kagan’s boss, domestic policy adviser Bruce Reed, backed a “kick the can” approach, claiming that the issue needed more study and consultation with states and doctors’ groups.

On a memo about a possible federal assisted-suicide ban, Kagan wrote: “This is a fairly terrible idea, but I know [Clinton adviser Paul] Begala likes it.”

Clinton ended up backing the “kick-the-can” option. “Cannot oppose [legislation] outright given my position,” he wrote.

—Kagan unequivocally endorsed an effort to try to defuse a controversial affirmative action lawsuit involving a white teacher who was laid off from a public high school in New Jersey while an African-American teacher with the same seniority was kept on.

The Clinton administration initially backed the legality of the board’s decision to layoff the white teacher, but at the urging of Solicitor General Walter Dellinger reversed course and urged the Supreme Court to uphold lower court judgments in favor of the white teacher.
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[Laura Cereta]

'Boring' nominee stays under radar (http://www.politico.com/news/stories/0610/38187.html)
7 June 2010, Politico


Elena Kagan’s Supreme Court confirmation process has been so overshadowed by other events and issues, her name barely came up during President Barack Obama’s contentious lunch with Senate Republicans late last month.

Obama briefly solicited GOP support for Kagan, but not a single Republican raised a concern about her or asked a question about the nomination — instead, they focused on everything from health care to Iran to the Gulf oil spill, according to Republican senators.

Some kind of fight is certain to break out — what SCOTUS hearing hasn’t had at least a little drama? — but so far, the White House isn’t complaining about the lack of a spotlight on its well-coached, amiable and thus far noncontroversial nominee.

Republicans have found little in Kagan’s public statements, private utterances and nonjudicial paper trail to make a major fuss about. When more than 46,000 pages of her work in the Clinton White House were released Friday afternoon, only a handful of Republicans and their conservative allies off Capitol Hill raised concerns about some of her liberal-leaning positions.

All of which is making some wonder: What if they held a confirmation battle, but nobody showed up for a fight?

“She’s a little bit boring — and boring is good,” said one administration official close to the process, who added that the lack of a bombshell rallying point — aka “wise Latina” — is a “huge help.”

The administration is cautiously optimistic at the halfway mark of Kagan’s scheduled interviews with all 100 senators, saying the former Harvard Law School dean has actually made a better, more polished impression than did Justice Sonia Sotomayor, who occasionally came off as prickly during her gantlet of similar interviews last year.

“She doesn’t have a controversial opinion for all of us to talk about,” said South Carolina Sen. Lindsey Graham, the lone GOP member on the Judiciary Committee to back Sotomayor’s nomination last summer. “There’s no ‘wise Latina’ comment that has made a lot of news, so in that case, it’s probably good” for her.

Added Texas Sen. John Cornyn, chairman of the National Republican Senatorial Committee and a Judiciary Committee member: “She’s a blank slate. ... People are just sort of diligently trying to learn more about her and her record.”

The current calculus could certainly change once the Clinton library releases all 160,000 pages of documents from Kagan’s time as a White House adviser from 1995 to 1999. And her nomination could turn into a political wedge issue — and still spawn a major GOP offensive — if she stumbles during her hearings before the Judiciary Committee, which are scheduled to begin June 28.
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