Breaking! Kagan Memos Reveal Nothing Shocking!

With confirmation hearings set to begin on June 28, and some 90,000 pages of papers released involving Kagan’s work in the law, Senate Republicans are grasping for anything they can to paint Kagan as a leftist ideologue.  The problem for those Republicans though is that Kagan is nothing of the sort.

What the papers illustrate is Kagan’s thinking as a pragmatist and a centrist.  Take for example a 1997 memo on an affirmative action case, authored by Kagan when she was a presidential assistant for domestic policy.  A New Jersey school district, when given the decision of firing two equally qualified teachers chose to fire the white teacher over the black one and defended the decision based on the grounds that it was part of an overall effort at maintaining diversity in the workplace.  Many in the Clinton administration wanted to side with the New Jersey school district, but Kagan sided with Walter Dellinger, then the solicitor general, and backed the white teacher to prevent the case from going to the Supreme Court.  Had the case gone to the Supreme Court it could have used it to strike down a series of affirmative action programs–a result that would have had far reaching consequences beyond the loss of a single job.  The decision reflects Kagan’s understanding of the interplay between law and policy and shows an ability to look beyond the immediate impact of a case forward for its larger historical and cultural significance.

Perhaps that is a skill picked up by Kagan during her time with Justice Thurgood Marshall.  Kagan’s tenure with Marshall has been cited by leading Senate Judiciary Republican Jeff Sessions as part of a history of Kagan’s “leftist philosophy” including memos authored by Kagan criticizing a Supreme Court decision that created harsh new standards for convicted criminals to appeal their convictions based on the argument that they had ineffective counsel.

But ultimately, Sessions complaints seem to be tilting at windmills given the overall centrist approach by Kagan on nearly every issue she’s likely to be questioned on during her confirmation hearings and any issues that would come before her as a sitting Justice.  And if her writings were not proof enough of that philosophy, the fact that her nomination has troubled both members of the left and the right should signal that she is anything other than an ideologue. 

As the Roberts Court has shown a steady determination to march constitutional jurisprudence as far to the right as possible, the real test for Kagan will be whether or not she can harness that pragmatism effectively enough to serve as a counter to the true ideologues on the Court–Justices Roberts, Scalia, Alito and Thomas.  I suspect it can and I suspect that it is precisely those skills that would win over Justice Kennedy on some close cases.  To that end, her nomination is likely as much about building a jurisprudential legacy as it is replacing a safe liberal vote. 

photo courtesy of dsearls via Flickr


Beng Kiat Low
low beng kiat6 years ago


Susan S.
Susan Songheim6 years ago

As a lawyer,I find her legal opinions are more collectivistic than support for rights of the individual as guaranteed by the Bill of Rights.I have read her articles and know she is not supportive for the rights of the individual. She supports restricting the right to a lawyer and jury trial by stripping away the 4th amendment protections, and she believes the government should restrict speech that goes against the government. We had been down the road before with Alien and Sedition Acts under John Quincy Adams and James Madison for criticizing the government. It was found to be unconstitutional.

She is very unqualified to sit on the bench. Sitting on the bench where you have write an opinion,which will become case law is NOT the same as running a law school. SCOTUS is not a entry level job for someone without any judicial experience.

She is very far left as the political spectrum of Marxism. She is not a centrist nor a mainstream liberal. She is qualified to sit on the Supreme Court of countries that are Marxist like Cuba,North Korea,and China,but not SCOTUS.

She did a poor job as a Solicitor General. She argued with Roberts in one case. She was reprimanded by Chief Justice Roberts for constantly interrupting him. There are better and more qualified candidates than her.

Ms. Kagan does not believe our rights come from our humanity. She believes the state gives you your rights. Her belief is false. I would find someone with judicial experience.

Gaby Micallef-trigona

Interesting to read what goes on in other countries.
Especially as I live in Italy where there is the biggest bunch of mediocre politicians ever seen under the sun!

Julia W.
Julia W.6 years ago

Jamie wrote:
"If she is not a left wing liberal then I don't want her in there."

Would I rather have Alan Dershowitz or Lawrence Tribe? Yes, I would. But they have *records,* opinions, books and decisions that can be easily gotten hold of and vigorously opposed. What the Supreme Court needs now is a centrist who can out maneuver Scalia and Roberts and get Kennedy to vote with the majority. Kagan, from a very young age has wanted and worked for this appointment, hiding her opinions behind her solid work.

I *hope* her opinions from the bench prove her to be a liberal.

Nancy Dodson
Nancy Dodson6 years ago

Eileen, I'm so sorry you've missed some of Obama's great appointments. He has put people around him who actually have experienc

Nancy Dodson
Nancy Dodson6 years ago

I think she's fabulous! She's bright and intelligent and thoughtful. I know this is a foreign concept for some people but there it is. How do you all who are opposed to her feel about Justice Roberts court effectively turning our elections over to big business? I must not have heard the outrage on that point!

Marilyn L.
Marilyn L.6 years ago

She will be confirmed.

Jan N.
Jan N.6 years ago


Eileen P.
Eileen P.6 years ago

i do not think Kaga has the experience......seems Obama puts plenty of people in positions where they lack experience and i know this personally from a friend who works in Washington for the administration where someone was put in charge whom everyone knew did not have the experience or the expertise yet were threatened with their jobs if they did not vote the way Obama wanted......
this does not mean that she can't do the job......just that she has no qualifications same as Obama....

Glenna Jones-kachtik
Glenna Kachtik6 years ago

George P - I am glad I wasn't drinking anything when I read your post.... My computer would be toast. A Canadian comedian - let me count the number of them....One of my favorite groups hails from Canada - Rippy the Gator lives on.