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May 11th, 2010 — By — In News & Events

Where does SCOTUS nominee Elena Kagan stand on property rights?

Everyone is talking about President Obama’s announcement that he has nominated Elena Kagan to replace retiring Justice John Paul Stevens on the U.S. Supreme Court.  Likewise, everyone is talking about Ms. Kagan – her credentials, her experience, and her philosophies (or, at least the lack of knowledge of her personal views and philosophies).  “Whether by ambitious design or by habit of mind, Ms. Kagan has spent decades carefully husbanding her thoughts and shielding her philosophy from view.”  (NYT 5/10/10 Editorial: Searching for Elena Kagan.)

We do know that as dean of Harvard Law School, she spoke out against the military’s “Don’t Ask, Don’t Tell” policy.  In 2005, she joined with other law school deans in a letter to Congress opposing an attempt to strip courts of the power of judicial review with respect to detainees at Guantánamo Bay, Cuba.   Prior to that, as a law professor, her 2001 Harvard Law Review article defended presidential authority, specifically relating to President Clinton’s assertion of greater centralized control over executive agencies, which she called “presidential administration.”

As Solicitor General, the top attorney litigating on behalf of the U.S. government, it has been her job to defend the government’s views rather than her own.  Although she did not argue the government’s position before the Court, she was counsel of record on the U.S. government’s amicus brief in Stop the Beach Renourishment, Inc. v. Florida Dep’t. of Environmental Protection, No. 08-11 (cert. granted June 15, 2009).  (Deputy Solicitor General Edwin S. Kneedler argued for the federal government on December 2, 2009.  See Robert Thomas’s analysis of Mr. Kneedler’s argument here. )  As it stands, Ms. Kagan has not indicated her position on many current legal issues, including property rights.

Ms. Kagan’s most revealing writing may be her 1995 University of Chicago Law Review article, “Confirmation Messes, Old and New,” in which she reviewed The Confirmation Mess by Stephen L. Carter (Basic Books, 1994).  Here she writes that the process of confirmation hearings has become “tidy – muted, polite and restrained,” a “vapid and hollow charade” that serve “little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government” (p. 941).  “[T]he problem is not that senators engage in substantive discussion with Supreme Court nominees; the problem is that they do not.” (p. 942)  Certainly, Ms. Kagan, we hope that the Senate will heed your suggestion and shake it up a little in the upcoming confirmation hearings.  Perhaps then we, the citizens, will become familiar with your substantive views and less cynical of the process.