DO AS I SAY, NOT AS I DO: Kagan Has Often Said One Thing,

Then Done Another

 In 1995, Kagan Wanted Nomination Hearings To Be “Meaningful,” Focus On “Legal Issues”
 Kagan believed the Senate must engage nominee “in meaningful discussion of legal issues.” If that
doesn’t happen the “process takes on air of vacuity and farce…”
Kagan argued that the public needs to understand the “real-world consequences” of a nominee’s
philosophy.

 In 2009, Kagan Avoided Giving Direct Answers In Her Own Hearings

 Kagan stated that “the nominee for any particular position, whether it’s judicial or otherwise, had to be
protective of certain kinds of interests…”
 Kagan argued that fully answering questions would interfere “with the responsible performance of the
job” and decided to answer questions based on how past nominees “have replied to inquiries from
Senators.”

 As Solicitor-General, Kagan Promised “Vigorous Defense Of The Statutes of This Country”

 At her confirmation hearing, Kagan stated that he most critical responsibility as a solicitor-general was
“the vigorous defense of the statutes of this country against constitutional attack.”
 She also stated that she would honor “stare decisis” and “be true to the rule of law.”

 As Solicitor-General, Kagan Repeatedly Failed To Appeal Attacks On Federal Statutes

th
 Kagan failed to review the 9 Circuit’s decision undermining the military’s application of Don’t Ask, Don’t
Tell Law.
 Kagan’s office allowed the deadline for appeal to the Supreme Court to pass, which will force the military
to continue litigating don’t ask, don’t tell in the lower courts for years.
 In August 2009, Kagan’s office filed a brief in a California case challenging the Defense of Marriage Act,
stating that “this administration does not support DOMA as a matter of policy, believes that
discriminatory, and supports its repeal.”

 Kagan Has Divergent Views On International Law

 As a nominee, Kagan explained that “the best way of determining congressional intent in cases of
statutory interpretation is to look at what congress intended—not what…foreign law says.”
 Later, Kagan stated that “there are some circumstances in which it may be proper for judges to consider
foreign law sources.”
 Kagan said that as solicitor-general she would “offer reasonable arguments from foreign law” if it “might
attract the support of one or more justices.”

 Kagan Has Supported Pro Bono Service, But As Dean Never Actually Did Any Herself
 Kagan was strong proponent of pro bono work, requiring students “to do 40 hours of public interest
work.”
 According to her own questionnaire, Kagan never actually did any pro bono work herself.
 Kagan did find time to join a Goldman Sachs advisory council and collect a $10,000 stipend.

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KAGAN’S EARLY YEARS: College writings provide window to her
activist liberal philosophy
 At Princeton, Kagan Expressed A Strong Liberal Philosophy
 Kagan criticized incoming Republican senators as “avengers of ‘innocent life’ and the B-1
Bomber.”
 Kagan predicted an “American disillusionment with conservative programs and solutions” and
that “a new revitalized, perhaps more leftist Left will once again come to the fore.”
 She wrote about “real Democrats” who are “committed to Liberal principles and motivated by
the ideal of an affirmative and compassionate government.”
Kagan: “Perhaps because of this background, I absorbed such liberal principles early; more
to the point, I have retained them fairly intact to this day.”
 Kagan’s college thesis was on the Socialist movement, “revealing sympathies with the Socialist
Party.”
 Kagan wrote of “Socialism’s greatness” calling the Socialist movement’s demise “a sad but also
chastening one for those who, more than half a century after Socialism’s decline, still wish to
change America.”
Kagan’s thesis described her brother’s “involvement in radical causes” which led her “to
explore the history of American radicalism in the hope of clarifying [her] own political
ideas.”
 Kagan argued against draft registration, calling it “a manifestation of a growing militarism.”
Kagan criticized proposal as sign of “militaristic identity the country was headed toward.”

 At Oxford, Kagan expressed her true legal mantra: Decide First, Justify Later
 She wrote it “is not necessarily wrong or invalid” for judges to “mold and steer the law in order
to promote certain ethical values and achieve certain social ends.”
Kagan suggested that in order for opinions that “appeal to the ethical sense” to have “some
measure of permanence” they needed to show they were “plausibly rooted” in the law.

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 KAGAN THE APPRENTICE: As Supreme Court Clerk, Kagan
Revealed Her Liberal Philosophy And Learned How To Use The
Court To Advance It
 Kagan’s View Of The Court Clearly Stayed With Her After Clerkship
 In 1995, Kagan argued that Supreme Court justices’ votes have “little to do with technical legal
ability and much to do with conceptions of value.”
 In deciding a hard case, Kagan argued a justice’s “own experience and values [are] the most
important data.”

 Kagan Memos As Clerk Reveal Views Far To The Left Of Mainstream

 Kagan worried that conservative court would use abortion case to undo precedent and “create
some very bad law on abortion.”
 Kagan wrote in a memo that faith-based groups should not counsel pregnant teens as “it would
be difficult for any religious organization” to do so “without injecting some kind of religious
teaching.”
 As clerk, Kagan wrote that she was “not sympathetic” to a defendant who argued that the D.C.
“firearms statutes violate his constitutional right to ‘keep and bear arms.’”
 Kagan took “liberal view” on 14th amendment that “constitutional guarantee of liberty should
be read broadly.”
 Court rejected that view and “narrowly defined what ‘liberty’ the Constitution protects.”
 Kagan would overturn standards which limited appeals for convicted criminals.
 Kagan sought to overturn lower court ruling questioning constitutionality of rent-control,
stating “this opinion is outrageous.”

 Kagan’s Memos Also Show A Willingness To Use The Court To Advance Policy Over Law
 Kagan advised Marshall to “vote for so-called defensive denials” of appeals to “prevent his
more conservative colleagues from giving more power to police and prosecutors."
 Despite believing decision was legally incorrect, Kagan recommended against taking
immigration case, since she felt judge “ensured an equitable result” and “no great cost to the
republic.”
 In US v. Shonde, Kagan wrote that even though the District court “exceeded its authority” they
“ensured an equitable result.”

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 THE DONKEY WHISPERER: Kagan’s Time Advising Clinton WH
Show Her As Fiercely Partisan Democrat
 At White House, Kagan Focused On Partisan Political Strategy
 Kagan’s “sharpest skills were her political antennae.”
 Kagan wrote “a number of memos” noting policies that would affect “Repubs, not Dems!”
 She outlined an “aggressive strategy…for quick passage of [Clinton] gun control proposals.”
 Kagan recommended Clinton endorse amendment she believed was unconstitutional to protect
president’s “credibility.”
She also continued to work on the “politically charged” partial birth abortion issue even
after she moved from the counsel’s office.

 Worked To Minimize “Political Fallout”

 Kagan tried “to protect her bosses from political fallout, even if she agreed with their policy
goals.”
 Kagan worked to shield Bill Clinton from questioning in Whitewater and Paula Jones
investigations.
“Kagan served as a link between the White House and private lawyers as they argued that a
sitting president should not be forced to testify in a civil law suit about behavior before
taking office.” –The New York Times
 Kagan worked to keep Whitewater and Jones deliberations secret, ghostwriting editorials in the
process.

 While Advancing Liberal Agenda

 Kagan defended a veto of late-term abortion ban.
 Kagan argued that there was “no morale rationale” against cloning fetal embryos.
 Kagan wrote that a law banning assisted suicide was “a fairly terrible idea.”
 “Kagan supervised work implementing the Brady law” assaulted weapons ban.
In a May 1998 memo from her time as a policy aide, Kagan and Chief Domestic Policy
Adviser Bruce Reed warned Clinton about Republican efforts to weaken a ban on assault
weapons.

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 5 QUESTIONS FOR ELENA KAGAN: Kagan’s Confirmation
Hearings Underway and There Are Questions She Must Answer
1. Can You Assure The Public That You Know The Difference Between Serving As A Political Advisor
And Making Decisions As A Judge?
 Kagan wrote that judges who “mold and steer the law…to promote certain ethical values and
achieve certain social ends…is not necessarily wrong.”
 Kagan wrote that interpretation of the Constitution “necessarily + inevitably” involves “political
+ policy questions.”
 As Supreme Court clerk, Kagan advised Marshall to “vote for so-called defensive denials,” to
“prevent his more conservative colleagues from giving more power to police and prosecutors.”

2. Based On Your Past History, Show The American Public Be Concerned That Your Role On The Bench
Will Be To Protect President Obama’s Policy Agenda?
 Since Obama fears the Supreme Court will challenge his “ambitious agenda expanding the
reach of government,” he has put forth a nominee who will help protect his agenda.
 Kagan has argued for expanded presidential power as “a mechanism to achieve progressive
goals.”
 In Kagan, Obama sees “a forceful, effective counterweight to Chief Justice John Roberts and
Justice Antonin Scalia.”

3. Are You Going To Follow Your Own Advice And Answer Questions Directly, Avoiding “Platitudinous”
Statements And Political Spin, So This Hearing Takes On More Than “An Air Of Vacuity And Farce”?
 Kagan has stated that a Supreme Court nomination hearing must focus “on a nominee’s
legal views.”
 Kagan has stated that the Senate must engage a nominee “in meaningful discussion of legal
issues,” is not, “process takes on air of vacuity and farce…”
 Kagan argues that without Senate pressure nominees aren’t compelled to disclose “their
views on legal issues” since “the safest and surest route to the prize lay in alternating
platitudinous statement and judicious silence.”
4. Do You Agree With President Obama’s Other Judicial Nominees, Supporting The Progressive Legal
View That Judges Should Take Into Account “Evolving Norms And Social Understandings” To Reach
Decisions?
 Obama Circuit Court Nominee Goodwin Liu argued that judges should take into account
“evolving norms and social understandings” and be “broad-minded in their view” when
interpreting the Constitution.

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  Kagan “read the 14th Amendment” expansively “reflecting the liberal view that the
constitutional guarantee of liberty should be read broadly.”
 Does Kagan agree with the extreme left view that the 14th Amendment gives citizens a right
to health care, tax credits and job training at taxpayers’ expense?

5. You Have Exhibited a Pattern Of Allowing Your Personally Held Beliefs To Guide Your Professional
Actions, So What Assurances Can You Give This Will Not Be The Case Once You’re On The Bench?
 As Dean of Harvard Law School, Kagan praised the University’s decision to ban military
recruiters from Harvard’s campus over the military’s ban on openly gay service members.
She called Clinton-era federal statute of Don’t Ask, Don’t Tell “a profound wrong—a
moral injustice of the first order.”
 As Dean, Kagan even encouraged students to “forcefully” protest against the military.
 As solicitor-general, Kagan failed to review the 9th Circuit’s decision undermining the
military’s application of Don’t Ask, Don’t Tell law.
Kagan’s office allowed the deadline for appeal to the Supreme Court to pass, which
will force the military to continue litigating this issue in the lower courts for years.
 In August 2009, Kagan’s office filed a brief in a California case challenging the Defense of
Marriage act, stating that “this administration does not support DOMA as a matter of
policy, believes that it is discriminatory, and supports its repeal.”

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