Thursday round-up, part II
Several issues concerning Kagan have come under increased scrutiny in the media over the past couple days.
*Kagan’s prohibition of military recruiters from Harvard Law School’s career office. In an op-ed in the Washington Post, E.J. Dionne attests, as someone who personally knows Kagan, that — even in private — she expresses “genuine feeling” for the military and defends her position with a careful balancing test between a “free and democratic society” and the need to protect students from discrimination. At the Boston Globe, Tracy Jan and Mark Arsenault recount the “complicated” history of Harvard’s policy toward the military under Kagan, finding that Kagan showed support for the military in many ways and felt “deep distress” about the situation.
*Her time in the Clinton White House. A widely read story by Josh Gerstein at Politico finds that Kagan steered Clinton toward centrist policy choices, including encouraging Clinton to deny Medicare funding for abortions in cases in which a woman's health was at risk; Laura Meckler at the Wall Street Journal also has coverage. In another story, Gerstein writes that Kagan — with other top Clinton advisers — was dismissive of some proposals by the Administration’s racial reconciliation project. According to the Associated Press (via the Los Angeles Times), Republicans are requesting the release of more documents from the Clinton White House, in search of more clues to Kagan’s views. The Ninth Justice reports on Republican Senator Jon Kyl’s statement that the timing of Kagan’s hearing is “dependent on cooperation from the administration getting information to us.”
*Diversity hiring as dean of Harvard Law School. At the Volokh Conspiracy, Dale Carpenter finds comfort for conservatives and libertarians in Kagan’s “openness to opposing views, a seriousness about ideas, and perhaps a willingness to be persuaded” qualities,” which he sees reflected in the ideologically diverse new professors hired during her tenure. The Washington Post reports that, faced with concerns from civil rights groups that those hires were not racially diverse, the White House responds that Kagan increased diversity at least among tenured and clinical faculty, and, as Solicitor General, hired one-third minorities. Harvard law professor Randall Kennedy also defends her in an opinion piece in the Huffington Post titled “The Media Jabs Are Unfair, Kagan Will Fight For Equality on the Court.” The Washington Post’s 44 blog also reports on the controversy.
On a related issue, Kagan’s service as Harvard Law School dean, Laura Meckler at the Wall Street Journal — in “Grading Kagan as Dean”– credits Kagan with outreach to conservatives on campus but suggests that Kagan’s successes at Harvard were aided by a period of financial bounty and, in some cases, were started by her predecessor, Dean Robert Clark.
*Her relationship with President Obama. According to Laura Litvan at Bloomberg, Republican senators are asking for assurances that Kagan will not be a “rubber stamp” for the president’s policies. John Dickerson at Slate dismisses the claim that Kagan is too close to the president, arguing that Republicans are applying a double standard to her if — as many of them did — they embraced Harriet Miers, George W. Bush’s 2005 nominee who had served as his personal lawyer. At the Washington Examiner, Michael Barone draws parallels between Kagan and the president, among them their teaching positions at the University of Chicago and their small number of publications. Meanwhile, Dan Friedman at Ninth Justice asserts that Republicans are making the confirmation fight more about the president than Kagan.
*Guns. The WSJ Law Blog reports that the National Rifle Association is preparing to “score” Kagan on her friendliness toward gun rights; her rating may be lowered by the recent discovery that she helped draft a presidential directive Clinton signed suspending imports of semiautomatic assault weapons. Greg Stohr and Kristin Jensen at Bloomberg report another revelation on guns, that Kagan, who served as law clerk for Justice Marshall in 1987, wrote a memo recommending denial of the petition of a man convicted for gun possession, in violation, he said, of his Second Amendment rights; Kagan’s note said merely, “I’m not sympathetic.”
*Free speech and election law. At Reason, Jacob Sullum expresses concern that Kagan might be hostile to free speech rights because, as Solicitor General, “her pro-censorship positions went beyond the call of duty.” Eugene Volokh at the Volokh Conspiracy thinks Kagan rightly opposes Justice Stevens’ vote to uphold a ban on flag burning in Texas v. Johnson. For reports on Kagan and the Citizens United case she argued earlier this Term, see the Wall Stret Journal here and here (registration required). For more on her possible views on election law, see Nicholas Stephanopoulos’ post at ACSblog.
*Ivy League education. Given that the confirmation of Kagan (a Harvard Law School graduate) could leave the Court with every Justice having attended either Harvard Law or Yale Law, the Washington Post‘s Sarah Kaufman and Dan Zak discuss the historically close connection between the Ivy League and the Court: in the last 50 years, 64% of Justices have attended an Ivy League school. Jonathan Turley writes an opinion piece in the Los Angeles Times arguing that a selection bias toward Harvard and Yale graduates “guarantees a certain insularity in training and influences on the court.”
American Prospect‘s blog comments on the racial dynamics of the confirmation vote.
Finally, news on potential replacements for Kagan as Solicitor General are beginning to trickle out. Some candidates being mentioned include:
- White House lawyer Donald Verrilli and Deputy Solicitor General Neal Katyal (CNN)
- Washington Governor Christine Gregoire (National Journal, Seattle Times)
In non-nomination news:
At the Volokh Conspiracy, John Elwood predicts a summary reversal in Jefferson v. Upton.
Coverage of the memorial cross stolen from the Mojave desert — the one at issue in this Term’s Salazar v. Buono — appears in the Los Angeles Times, New York Times, and Associated Press (via the Washington Post). Opinion pieces appear in the Los Angeles Times and on FOX News.