Senate Democrats

On Your Side: Senate Democrats Support a Swift and Fair Confirmation Process for Supreme Court Nominee Elena Kagan

“While we can’t presume to replace Justice Stevens’ wisdom or experience, I have selected a nominee who I believe embodies that same excellence, independence, integrity, and passion for the law — and who can ultimately provide that same kind of leadership on the Court:  our Solicitor General, and my friend, Elena Kagan.”

–          President Obama, on the nomination of
Elena Kagan to the Supreme Court,

May 10, 2010 

After consulting with Senators on both sides of the aisle, President Obama has nominated Solicitor General Elena Kagan to be the next Supreme Court Justice.  She is widely-regarded as one of the nation’s leading legal scholars.  Her lifetime of public service and legal experience, serving as a teacher, a White House and Senate aide, and representing the government as the nation’s Solicitor General, have contributed to Elena Kagan’s unparalleled intellect, judgment, and independence.  Kagan’s record makes clear that she will stand up for average Americans and ensure they get a fair hearing, even when they are up against the largest and wealthiest corporations.

Elena Kagan’s trailblazing career makes her uniquely qualified to serve on the Court.  She is the first woman to serve as Solicitor General, a position often referred to as “the 10th Justice” of the Supreme Court, because of the Solicitor General’s regular appearance before the Court representing the interests of the United States government. 

As the first woman to serve as Dean at Harvard Law School, Elena Kagan was highly respected for her ability to build consensus among diverse groups.  She diversified the political discourse on campus by hiring more conservative professors.  While working as a White House aide, Elena Kagan was known to reach across the aisle to work with both Democrats and Republicans on issues like restricting tobacco companies from targeting ads at children.

Elena Kagan understands the law has a real impact on the lives of ordinary Americans.  President Obama said that Solicitor General Elena Kagan has a passion for the law that is “anything but academic.”  As the daughter of a public school teacher and a housing lawyer, Elena Kagan understands that Supreme Court decisions have an impact on the lives of Americans.  As Solicitor General, she has argued cases to protect consumers, prevent elections from being taken over by special interests, and protect our national security to keep our nation safe.  Elena Kagan recognizes the extraordinary role of the Supreme Court to uphold the law and enable all Americans to receive “a fair hearing and an equal chance at justice.”       

Senate Democrats will work with Republicans to ensure a swift, fair and respectful confirmation process. The significant decisions of the Supreme Court are often made by only five individuals, but these contentious split decisions can have a profound impact on the daily lives of each and every hardworking American.  Senate Democrats will give fair and thorough consideration to President Obama’s nominee, Solicitor General Elena Kagan.  She has already proven herself to be an individual who stands up for the rights of ordinary Americans against the interests of corporate big business.

Experience

Solicitor General Elena Kagan is extraordinarily well-qualified to serve on the Supreme Court.  A granddaughter of immigrants and the daughter of a school teacher and lawyer, Elena Kagan was raised with a deep appreciation for service, character, and integrity. Her parents instilled in her a great appreciation for not only for scholarship and the law, but also for how the law impacts the lives of ordinary Americans.  She graduated from Princeton University, attended Oxford University on a scholarship and went on to receive her law degree from Harvard Law School. 

During her legal career, Elena Kagan has developed a deep understanding of constitutional law and administrative law.   After graduating from Harvard Law School, Elena Kagan served as a law clerk to two legal luminaries, Judge Abner Mikva on the U.S. Court of Appeals for the District of Columbia and Justice Thurgood Marshall on the U.S. Supreme Court.  She went on to gain litigation experience while practicing law at Williams & Connolly in Washington, D.C. 

Elena Kagan established herself as a respected legal scholar teaching at the University of Chicago Law School and Harvard Law School, publishing articles on constitutional and Administrative law.  In the 1990’s, Elena Kagan worked as a White House and Senate aide, contributing to the development of public policy at the federal level, working with members of both sides of the aisle to advance legislative initiatives.  Most recently, she served as the first female dean of Harvard Law School, where she gained the respect of the community by her ability to build consensus among disparate groups and move beyond ideological divisions. 

Continuing a lifetime of public service, Elena Kagan currently serves as the Solicitor General of the United States, acting as our nation’s chief lawyer.  In this role she represents the American people’s interests before the Supreme Court and has the distinct honor of serving as the first female Solicitor General.  As Solicitor General, Elena Kagan has filed nearly 100 briefs with the Supreme Court and already argued six cases before the Court.  She argues the most important cases before the Supreme Court and oversees the entire appellate litigation strategy for the United States.         

Elena Kagan’s nomination to be Solicitor General received the support of every Solicitor General who served from 1985 to 2009, including many who served in the role during Republican Administrations.  Elena Kagan has built a reputation as one of our nation’s most acclaimed legal scholars, as being fair-minded and open to diverse opinions, and respectful of the potential power of the law to impact people’s lives.  She is widely respected for her ability to build consensus among differing minds, just as Justice Stevens has done on the Supreme Court.

Elena Kagan’s legal experience is comparable to previous and current Supreme Court Justices.  Some Republicans have criticized Elena Kagan’s background because she has not previously served as a judge.  But many Democrats, including Majority Leader Reid and Judiciary Committee Chairman Leahy, asked the President to consider appointing somebody from outside the judicial monastery. 

Republicans are misguided in focusing on the issue of judicial experience, rather than on Elena Kagan’s many accomplishments and accolades from members of both sides of the aisle.  More than 35 Justices, including former Chief Justices William Rehnquist and Earl Warren, had not previously served as judges before being nominated to the Supreme Court.  This means more than one third of the 111 Justices who have served, or currently serve, on the Supreme Court did not rise from the ranks of lower courts.

In any event, Republicans cannot have it both ways.  In 1999, when President Clinton nominated Elena Kagan to serve on the D.C. Circuit Court, Senate Republicans blocked a hearing on her nomination and prevented her nomination from moving forward.  

Law as a Powerful Force in People’s Lives

As a devoted public servant, Elena Kagan’s experience provides her with a deep understanding and appreciation of the how the law affects the lives of the American people.  In her first job serving as a clerk to Supreme Court Justice Thurgood Marshall, Elena Kagan was reminded that “behind law there are stories – stories of people’s lives as shaped by law, stories of people’s lives as might be changed by law.”  Beginning with this prestigious clerkship, Elena Kagan’s appreciation for the law, both as an academic and as a practitioner, has been shaped by her respect for the powerful force of law on the lives of ordinary Americans.

As Solicitor General, Elena Kagan has fought on behalf of the government against the largest and wealthiest corporations to promote fair and transparent elections.  In Citizens United v. Federal Election Commission, Elena Kagan argued on behalf of the United States government to protect American elections from the undue influence of corporate interests.  A slim majority of the Supreme Court, ignoring the real world impact of its decision and overreaching in its conclusion, gave corporations the right to spend unlimited amounts of money on elections.  As Solicitor General, Elena Kagan stood up for American voters but the Supreme Court failed to appreciate the significant impact unlimited special interest money will have on our electoral process.

While serving as Dean of Harvard Law School, Dean Kagan encouraged public service.  Dean Kagan supported the creation of legal clinics to provide law students with the ability to serve the local community, including individuals who might not otherwise have benefited from legal advice.  Students were encouraged to enter a life of public service, using their law degrees to serve ordinary Americans, through the expansion of loan forgiveness programs for students entering careers in public service.

Fact Check: Harvard’s Recruitment Policy

Elena Kagan did not bar the military from recruiting at Harvard Law School while she was the Dean.  Republican attacks against Elena Kagan are unfair and misleading. Since 1979, Harvard Law School has maintained an anti-discrimination policy requiring all employers interested in recruiting students through a system set up by the Office of Career Services (OCS) to sign a statement indicating that they do not discriminate on the basis of age, race, sex, or sexual orientation.  The military has been unable to sign these statements because of the “don’t ask, don’t tell policy” restricting the ability of gay men and women to serve in the military.  Prior to 2002, Harvard Law School had not permitted the military to recruit students through OCS.  

Only after a federal appellate court held that the Solomon Amendment (requiring that schools receiving federal funding allow military recruiting) was unconstitutional did Dean Kagan reinstate the restriction against military recruiters using OCS services, a ban she lifted again in 2005 even before the Supreme Court overturned the appellate court decision. 

The former Dean of Harvard Law School, Robert Clark, has defended Elena Kagan’s actions as Dean.  He explained that when Kagan first became Dean she was merely upholding the policy in place since 1979 with regard to recruitment on campus. [Wall Street Journal, 5/11/10] This policy was applied to all prospective employers.

At no time was the military barred from on-campus interviews, and it was always permitted to recruit Harvard Law Students through the assistance of the Harvard Law School Veterans Association.  During Dean Kagan’s time at Harvard, military recruitment continued on campus coordinated by the Harvard Law School Veterans Association and military recruitment levels remained steady.  The enforcement of the School’s anti-discrimination policy did not prevent the military from meeting with students. 

As the Dean of the Harvard Law School, Elena Kagan supported America’s troops.  While serving as Dean, Elena Kagan hosted yearly dinners at her home on Veteran’s Day for former service members and their spouses.  She regularly expressed her opinion that entering the military is a noble career path, and former students have reported that she created a “highly supportive environment” for students who served in the military. 

·         Iraq War Veterans and Harvard Law Students Erik Swabb, Geoff Orazem, and Hagan Scotten wrote: “During her time as dean, [Kagan] has created an environment that is highly supportive of students who have served in the military [Washington Times, 2/5/09]
 

·         Brigadier General Patrick Finnegan, West Point Military Academy, said that Kagan gave a “memorable and sincere” talk at West Point and that “I’d find it ludicrous that anyone would criticize her” as being anti-military.  [Boston Globe, 5/12/10]

·         Former Solicitor General Walter Dellinger has attested to Elena Kagan’s great respect for the military. [Washington Post, 5/14/10]

Historic Nomination

If Solicitor General Kagan is confirmed, the Supreme Court would have three sitting female Justices for the first time in history.  Although there have been 111 Supreme Court Justices since our nation’s founding, Elena Kagan would become only the fourth woman to serve on the Supreme Court. 

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