6 Things You Might Not Know About Supreme Court Nominee Elena Kagan

The nomination of Elena Kagan to the Supreme Court has produced many more questions than answers, but that has not stopped the avalanche of news stories, which could take days to sift through. Nevertheless, it seems pretty clear from what we know so far that this is not good news for anyone who hoped that the president might choose a nominee that would continue in the liberal tradition of the justice she's replacing, John Paul Stevens. The American Prospect's Scott Lemieux calls the decision "Ivy League nepotism of the worst sort," saying "the idea that the complete absence of evidence about her constitutional vision is no big deal is something that's easy for someone who will never be denied an abortion, be discriminated against by an employer, etc. to say, but for people who actually take such things seriously it's rather important."

Many trustworthy commentators have written a good deal already -- see Read Marjorie Cohn here, Glenn Greenwald here, and Dahlia Lithwick here. Nonetheless, as we await the inevitable confirmation media circus, a few admittedly random, but interesting -- and seemingly contradictory -- details from her reported biography, recent and not-so-recent, could help provide a fuller portrait of what makes Kagan tick. For those readers among us who have not followed every speculative twist and turn on the internet, here are six things you may not know about Elena Kagan:

1. She grew up in Manhattan's Upper West Side and wrote her senior thesis on "Socialism in New York City."

As a history major at Princeton, Kagan wrote her senior thesis on American radicalism. The title: "To the Final Conflict: Socialism in New York City, 1900-1933."

According to the New York Times:

In 153 pages, the paper examines why, despite the rise of the labor movement, the Socialist Party lost political traction in the United States -- a loss that she attributed to fissures and feuding within the movement. "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," she wrote.

Her advisor, the historian Sean Wilentz, who has described her as "one of the most extraordinary people I've met in my life, let alone teaching at Princeton," says that the choice of topics is not a reflection of her own politics. As he told Ben Smith of Politico:

"I took the title to be a kind of a pun, something of a paradox," he said. "She takes a line from the Internationale -- "to the final conflict" - but the thesis is about failure. About the final conflict of the Socialist Party in New York, how it fell apart. How it was unable to do what it set out to do. It's a study of factionalism, of the futility of dogma, of ideology."

"if the history of Local New York shows anything," Kagan wrote, "it is that American radicals cannot afford to become their own worst enemies. In unity lies their only hope."

Kagan may be far from radical now, but don't tell that to the Tea Party right.

2. Elena Kagan has proclaimed her love for the Federalist Society; once held a dinner for Antonin Scalia.

According to the Los Angeles Times, during her time at Harvard, Kagan "once hosted a celebratory dinner for conservative Justice Antonin Scalia when he marked his 20th anniversary on the high court, and another time she drew a standing ovation from members of the Federalist Society during a national convention on campus."

The Scalia "dinner," during which Kagan presented the Supreme Court justice "a framed letter by Supreme Court Justice Joseph Story," was actually part of a two-day celebration, according to a write-up on the Harvard Law School website, which described a "visibly appreciative Scalia" as he was introduced by then-Dean Kagan. "His views on textualism and originalism, his views on the role of judges in our society, on the practice of judging, have really transformed the terms of legal debate in this country," Kagan said. "He is the justice who has had the most important impact over the years on how we think and talk about law."

Meanwhile, numerous accounts detail an appearance before a student branch of the right-wing Federalist Society at Harvard in February 2005. "I LOVE the Federalist Society!" she is said to have exclaimed, eliciting a standing ovation, while also saying, "But you are not my people."

3. She has described the confirmation process she is about to go through as an "embarrassment" and "a vapid and hollow charade."

Kagan wrote this in a 1995 article when she was a law professor at the University of Chicago. According to the LA Times, "she voiced frustration that nominees for a life-term seat on the nation's highest court were allowed to 'stonewall' senators and refuse to discuss not only their 'broad judicial philosophy,' but their 'views on particular constitutional issues.'"

Years later, and now tthat Kagan has faced the same prying into her (notoriously mysterious) political positions, she sings a different tune. During her confirmation hearings to become Solicitor General last year, Kagan was asked about her statements in 1995, explaining: "I wrote that when I was in the position of sitting where the staff is now sitting and feeling a little bit frustrated that I really wasn't understanding completely what the judicial nominee in front of me meant and what she thought."

Too bad; if the Sotomayor hearings were any indication -- "wise Latina" anyone? -- vapid and embarrassing seemed pretty spot-on. For his part, Glenn Greenwald writes that Kagan "should absolutely be held to her own position in that regard." Her argument that nominees should be compelled to answer such questions was absolutely right, and that's especially applicable to Kagan in light of her own glaring lack of a real record on virtually everything."

4. Kagan "abhors" Don't Ask, Don't Tell, describing it as "a moral injustice of the first order."

As Dean of Harvard Law School, Kagan supported a policy barring military recruiters from the campus, on the grounds that "Don't Ask, Don't Tell was discriminatory against gays and lesbians. As Campus Progress wrote last year, "Kagan supported a lawsuit intended to overturn the Solomon Amendment so military recruiters might be banned from the grounds of schools like Harvard. When a federal appeals court ruled the Pentagon could not withhold funds, she banned the military from Harvard's campus once again. The case was challenged in the Supreme Court, which ruled the military could indeed require schools to allow recruiters if they wanted to receive federal money. Kagan, though she allowed the military back, simultaneously urged students to demonstrate against Don't Ask, Don't Tell."

Kagan apparently stayed in contact with LGBT students throughout the controversy.

"In October 2003, Kagan transmitted an e-mail to students and faculty deploring that military recruiters had shown up on campus in violation of the school's anti-discrimination policy. It read, 'This action causes me deep distress. I abhor the military's discriminatory recruitment policy.' She also wrote that it was 'a profound wrong -- a moral injustice of the first order.'"

5. Kagan was a paid adviser to Goldman Sachs during the subprime mortgage crisis.

Between 2005 and 2008, Kagan was a member of the Research Advisory Council of the Goldman Sachs Global Markets Institute, for which she got a $10,000 stipend.

Reporting for The Huffington Post, Sam Stein points out, "Kagan disclosed this information during her first confirmation hearings for the post of Solicitor General," and that it has been on the media radar since at least last March, when the New York Times "mentioned the position and payment in an article on whether White House employees should be allowed to keep the bonuses they earned from their time in private industry."

Still, since then, Goldman has been charged with fraud for its role in the subprime mortgage disaster and has become "a toxic name within the political world," as Stein says. On Friday, "when White House spokesman Robert Gibbs was asked about the Goldman connection during a briefing with reporters. Gibbs stressed that the panel 'had absolutely nothing to do with decisions Goldman is being investigated for' and stressed that her position with the bank would have 'no' impact on her potential nomination."

6. Despite her recent defense of preventive detention, Kagan once signed a letter opposing legislation to block appeals by "war on terror" defendants.

National Public Radio's Nina Totenberg reports

In a 2005 letter to Sen. Patrick Leahy, Kagan and three other deans of major American law schools, wrote to oppose legislation proposed by Sen. Lindsey Graham (R-SC) to strip the courts of the power to review the detention practices, treatment and adjudications of guilt and punishment for detainees at Guantanamo Bay, Cuba.

"To put this most pointedly," the letter said, "were the Graham amendment to become law, a person suspected of being a member of al-Qaeda could be arrested, transferred to Guantanamo, detained indefinitely ... subjected to inhumane treatment, tried before a military commission and sentenced to death without any express authorization from Congress and without review by any independent federal court. The American form of government was established precisely to prevent this kind of unreviewable exercise of power over the lives of individuals. "

"When dictatorships have passed" similar laws, said the deans, "our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government."

Be sure to check out the New York Times collection of Kagan's statements and writings.


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