Kagan: 'Pipsqueak' or Bad-News Bear?

Ross Mackenzie
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Posted: May 20, 2010 10:45 AM
Kagan: 'Pipsqueak' or Bad-News Bear?

President Obama has nominated Elena Kagan to succeed to the Supreme Court chair occupied by the retiring Justice John Paul Stevens. The Senate will hold confirmation hearings beginning next month.

Who is Elena Kagan -- and on important questions, what does she think?

Among other things, she's been a professor at the University of Chicago (where she met Barack Obama), a White House adviser to Bill Clinton, dean of the Harvard Law School, and (her current post) Obama-appointed solicitor general of the United States.

Along the way, she has labored for a long line of leftists -- New York Democrat Elizabeth Holtzman (Senate campaign), Massachusetts Democrat Michael Dukakis (presidential campaign), Harvard law professor Laurence Tribe (research assistant), federal Appellate Court Judge Abner Mikva (clerk), and Supreme Court Justice Thurgood Marshall (clerk).

Michelle Malkin

That's some of the ideological company she has kept. But what are her views?

THE RECORD is thin -- and perhaps purposefully so. Here's The New York Times, in an editorial: "Whether by ambitious design or by habit of mind, Ms. Kagan has spent decades carefully husbanding her thoughts and shielding her philosophy from view."

She wrote a Princeton senior thesis and an Oxford graduate thesis that maybe one day those schools and the White House will release -- and maybe not. The Internet is full of quotations from them and the five law review articles she has written. Those quotes don't draw a picture of a Kagan ideology anywhere close to conservative moderation....

-- Shortly after Ronald Reagan's November 1980 presidential victory (while an undergraduate at Princeton), she groaned in the Daily Princetonian that her first response to Reagan's victory had been "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." She termed herself hopeful 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."

-- A YEAR later in her senior thesis (on Socialism in New York City from 1930-1933), she reportedly thanked 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." And from quotes on the Internet, she despaired inter alia over these things:

(1) "A coherent socialist movement is nowhere to be found in the United States"; (2) Americans are more likely to speak of...capitalism's glories than of socialism's greatness"; (3) "the socialist movement (had) never become an alternative to the nation's established parties"; (4) "the socialist movement never (had) become an alternative to the nation's established parties"; and (5) no "radical party" had yet "attained the status of a major political force."

The Kagan confirmation hearings will afford an opportunity to learn whether in such writings the nominee (as she has written of her memos for Justice Marshall) was "a 27-year-old pipsqueak...working for a 90-year-old giant in the law" -- or is a bad-news bear (bad news for the American people and American law) embracing a radical progressive, even socialist, ideological agenda.

SHE IS on the public record as opposing military recruiters in Harvard's on-campus career office. She also abhors "the military's discriminatory (don't ask, don't tell) recruitment policy" -- terming it "a profound wrong, a moral injustice of the first order." And in announcing Elena Kagan's nomination to the Supreme Court, President Obama said (regarding the court's detested ruling in the Citizens United case) she shares his view that government can limit freedom of speech for certain groups to advance what government regards as the public good (in his words, "because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens").

In a 1995 book review for the University of Chicago Law Review, Elena Kagan urged the Senate -- in its confirmation hearings on nominees to the Supreme Court -- "to engage now in meaningful discussion of legal issues...(lest such hearings become) a vapid and hollow charade...with little educative function." So let the Senators have at it in an effort to describe the judicial philosophy of this nominee lacking on-the-bench experience or record.

Let them get answers from her on, for instance, the commerce clause, the public safety exemption (regarding Miranda rights in terror cases), abortion, gun rights, executive power, national security (regarding e.g. wiretapping and Guantanamo), and whether islamofascists arrested on U.S. soil are "enemy combatants."

President Obama minds majorly the use of "socialist" to describe him and his policies (such as ObamaCare) -- and never mind its apt use regarding his mentors and certain of his appointees. He prefers "progressive." Longtime colleague and Harvard law professor Lawrence Lessig insists Elena Kagan "will be a clearly progressive justice."

Was she a mere "pipsqueak" (her word) at Princeton when she wrote so cozily of socialism, or was she disclosing that she really believes? Let the Senators find out the true views of this Supreme Court nominee who -- The Times says -- "has spent decades carefully...shielding her philosophy." If not they, who? If not now, when?