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August 5, 2010

Kagan's Red Flags

By

Senators will vote soon on whether to confirm Elena Kagan to the Supreme Court. Her record is unusually slim for a Supreme Court nominee, and her confirmation hearings revealed little more about her approach to the law.

Yet there are red flags in her record. Kagan has demonstrated a disregard for those laws and constitutional rights she disagrees with, from the Solomon Amendment to the right to keep and bear arms.

The Solomon Amendment forbade any university that receives federal funds from failing to provide military recruiters with equal access to campuses for recruiting purposes. While dean of Harvard Law School, Kagan defied this federal law and prevented the U.S. military from having equal recruiting access to students.

Though she allowed military recruiters to meet with students independently, she didn't permit them to use the career services office - a move that the Defense Department had previously found to be an act of non-compliance with the Solomon Amendment.

Soon after Kagan became dean she signed a brief with 53 other faculty in a case challenging the Solomon Amendment. The Third Circuit Court found the Amendment unconstitutional. The next day, Kagan sent an e-mail announcing that she would ban military recruiters from accessing Harvard's career services offices.

But the Third Circuit's opinion hadn't taken legal effect yet. Indeed, the decision never would take effect: the Third Circuit's opinion was stayed until the Supreme Court reviewed the case. (The Court subsequently overturned it.)

But even after the stay was announced, with the Solomon Amendment still in force, Kagan discriminated against the military in violation of federal law.

It gets worse. If the original court decision had taken effect, it wouldn't have applied to Harvard Law School. Harvard is in the First Circuit, and the opinion was issued by, and only covered, the Third Circuit. As dean of Harvard Law School and a former clerk to two federal judges, Kagan surely knew this. Still, hiding behind the Third Circuit's unenforced opinion, she maintained her school's ban until the Pentagon threatened to revoke Harvard's federal funding.

Next, she filed an amicus brief with the Supreme Court, along with 39 Harvard Law colleagues. The court ruled against her position, 8-0, holding that the Solomon Amendment is indeed constitutional.

This embarrassingly erroneous dependence on the Third Circuit opinion is reminiscent of a statement she made in her Oxford University thesis articulating her approach to the law. She wrote that no judge should "hand down a decision that cannot plausibly be grounded in principles referable to an acceptable source of law. If, on the other hand, a court can justify a ruling in terms of legal principle, then that court must make every effort to do so."

This reveals an obvious belief that judges can approach a case with a desired result in mind and simply sift through the law to find a "plausible" justification for that result. Plausibility is a low standard. Judges should reach the correct result by citing the strongest arguments. They shouldn't choose the result first and then go hunting for any justification.

Yet as a Supreme Court law clerk, Kagan at one point demonstrated an even lower standard than she articulated in her thesis. Rather than providing even a tenuous argument for her conclusion in a memo to Justice Thurgood Marshall, she apparently found no need to consider arguments at all. She recommended rejecting a litigant's claim that the District of Columbia's ban on firearms violated his Second Amendment right to keep and bear arms because she, Kagan, was "not sympathetic." Her terse dismissal of his claim offered no legal argument.

The Supreme Court, however, found arguments against the D.C. ban more than just plausible. In District of Columbia v. Heller, the court struck down the D.C. ban and later extended the decision to apply the Second Amendment right to the states as well.

Kagan was intimately involved in gun-control policies in the Clinton White House, working to reclassify certain hunting rifles as "assault weapons" and to ban their importation. In Kagan's notes obtained from the Clinton Library, she even lumped the National Rifle Association together with the KKK as "bad guy org(anization)s."

During her hearing, Kagan declined to further articulate her views on the Second Amendment. Given that the court will likely review gun regulations in the future - regulations that may place serious undue burdens on this right - her previous actions and reticence during the hearing are troubling.

These examples reveal a disturbing tendency to disregard the law in order to reach her desired policy ends. Senators should carefully consider Kagan's actions and statements before confirming her to the court that has the last word on such vital constitutional issues.

Robert Alt is deputy director of, and Deborah O'Malley is a researcher in, the Center for Legal and Judicial Studies at The Heritage Foundation.

First appeared in The Borderfire Report

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