With Supreme Court Justice David Souter set to retire next month, speculation abounds that 49-year-old Elena Kagan, the former dean of Harvard Law School, is on Barack Obama’s short list of leading candidates to replace the outgoing Souter. Just four months ago, Obama, who has known Kagan since the two were colleagues on the University of Chicago Law School faculty during the 1990s, nominated her for the post of U.S. Solicitor General, the nation’s second-most-influential legal authority. It bears mention that Kagan, at the time of that appointment, had never in her life argued a case before the Supreme Court; in fact, she had never argued a case in court on any level. To understand why she was nominated, then, we must take a closer look at the political and legal positions she has embraced over the course of her adult life, and see how they dovetail with those of President Obama. By so doing, we can better comprehend why Center for Security Policy CEO Frank Gaffney, Jr. recently depicted Kagan’s appointment to the Solicitor General post as “a stepping-stone for her appointment to the Supreme Court.”
It is instructive to examine how Kagan, who earned a bachelor’s degree from Princeton University in 1981, framed her worldview during her years as an Ivy League undergraduate. Consider that in the “Acknowledgments” section of her senior thesis—titled “To the Final Conflict: Socialism in New York City, 1900-1933”—she specifically thanked her brother Marc, “whose involvement in radical causes led me to explore the history of American radicalism in the hope of clarifying my own political ideas.” In the body of her thesis, Kagan wrote the following:
“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. Conformity overrides dissent; the desire to conserve has overwhelmed the urge to alter. Such a state of affairs cries out for explanation. 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?
“Through its own internal feuding, then, the SP [Socialist Party] exhausted itself forever and further reduced labor radicalism in New York to the position of marginality and insignificance from which it has never recovered. The story is a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America. Radicals have often succumbed to the devastating bane of sectarianism; it is easier, after all, to fight one’s fellows than it is to battle an entrenched and powerful foe. Yet if the history of Local New York shows anything, it is that American radicals cannot afford to become their own worst enemies. In unity lies their only hope.”
A week after Ronald Reagan’s presidential victory in November 1980, Kagan contributed a piece to the Daily Princetonian, wherein she gave voice to her angst over the apparent demise of the Left. Wrote Kagan:
“Looking back on last Tuesday [election day], I can see that our gut response -- our emotion-packed conclusion 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 -- was a false one. In my more rational moments, I can now argue 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. I can say in these moments that one election year does not the death of liberalism make and that 1980 might even help the liberal camp by forcing it to come to grips with the need for organization and unity. But somehow, one week after the election, these comforting thoughts do not last long. Self-pity still sneaks up, and I wonder how all this could possibly have happened and where on earth I'll be able to get a job next year.”
After graduating from Princeton, Kagan earned a Master of Philosophy degree from Worcester College at Oxford University in 1983, and a J.D. from Harvard Law School in 1986. She began her professional career as a law clerk for Judge Abner Mikva of the U.S. Court of Appeals for the District of Columbia Circuit. Later, she clerked for U.S. Supreme Court Justice Thurgood Marshall. In 1991 Kagan became an assistant professor at the University of Chicago Law School, where, as noted above, she first met Barack Obama.
From 1995 to 1999, Kagan served variously as Bill Clinton’s Associate White House Counsel, Deputy Assistant to the President for Domestic Policy, and Deputy Director of the Domestic Policy Council. In June 1999 President Clinton nominated Kagan to the U.S. Court of Appeals for the District of Columbia Circuit. But because the Senate Judiciary Committee’s Republican chairman Orrin Hatch subsequently elected not to schedule a hearing on Kagan, her nomination was never confirmed.
In 2003, Harvard University president Lawrence Summers appointed Kagan to be the dean of Harvard Law School. It was in this role that Kagan expressed her most infamous criticisms of the U.S. military. Specifically, she filed a brief with the Supreme Court seeking to overturn the so-called Solomon Amendment, a law that denies federal funding to any university that “has a policy or practice … that either prohibits, or in effect prevents” military personnel “from gaining access to campuses, or access to students … on campuses, for purposes of military recruiting …” This Amendment had been enacted in 1996, in response to a trend where many law schools, as gestures of protest against a federal law barring open homosexuals from military service, were discouraging and/or prohibiting military recruitment on their campuses.
In Kagan’s view, the armed forces should welcome homosexuals to their ranks without the slightest reservation; any policy to the contrary, she interprets as bigotry of the lowest order. In an e-mail that she disseminated to the entire Harvard Law School community in October 2003, Kagan wrote: “I abhor the military’s discriminatory recruitment policy.” She characterized it as “a profound wrong—a moral injustice of the first order … a wrong that tears at the fabric of our own community, because some of our members cannot, while others can, devote their professional careers to their country.” The Supreme Court, however, unanimously rejected Kagan’s contention that the Solomon Amendment was unconstitutional.
Frank Gaffney, Jr. has insightfully observed that Kagan’s passionate opposition to the Solomon Amendment reflects “her hostility toward the U.S. military.” But that very hostility is to Kagan’s political advantage because it is ideologically compatible with that of President Obama, who, in a moment of unguarded candor during the presidential campaign, suggested that U.S. troops in Afghanistan were doing a disservice to their mission by “just air raiding villages and killing civilians, which is causing enormous problems there.”
The “likely consequence” of Kagan’s confirmation, adds Gaffney, is that “the Justice Department will play an adversarial, rather than supportive, role for our armed forces in an age when they are increasingly subjected to ‘lawfare’—the use of legal proceedings to interfere with and, where possible, defeat their missions.” This is precisely what America does not need in an age of Islamic terrorism.