Friday, June 4, 2010

CBS Says Documents Show Kagan Is A Liberal

CBS legal correspondent Jan Crawford believes that she has unearthed material that proves Supreme Court nominee Elena Kagan has a "liberal opinion on social issues." Perhaps that conclusion depends on the meaning of the word liberal. It also depends upon the facts and issues presented in the cases the documents analyze.

The documents are legal memoranda that Kagan prepared during her clerkship with the late Justice Thurgood Marshall. Kagan has said that writings she authored during her clerkship reflect the position of Justice Marshall, rather than her own personal views. Nonetheless, some of the documents explicitly describe Kagan's own beliefs.

In one memo, Kagan was possibly worried that the Court would use the particular case at issue to undo precedent protecting the right to an abortion. Crawford implies that this proves Kagan supports abortion rights. But even moderate and center-right judges (like Anthony Kennedy and Sandra Day O'Connor) have agreed that the Constitution protects abortion rights.

Another case involved a school district's voluntary desegregation plan. Kagan wrote that the plan was "amazingly sensible" and that lower court rulings recognized the "good sense and fair-mindedness" of local officials. Crawford does not provide any facts regarding the case, but this language alone does not prove that Kagan is a liberal. As recently as 2007, Justice Kennedy asserted that under certain circumstances, local officials would not violate the Constitution if they adopted voluntary desegregation plans that intentionally took race into account. At most, Media commentators often describe Kennedy as a moderate, but he most often votes with conservatives in split decisions.

Crawford also cites a memo in a case in which a plaintiff argued that New York must recognize his proxy marriage performed in Kansas. These marriages were prohibited by New York law. Marshall suggest to Kagan that the "Full Faith and Credit Clause" required recognition of the marriage. Kagan said that the position was "at least arguably correct."

Crawford says that this language shows that Kagan could support same-sex marriage rights. This is probably a stretch. First, the language cited from Kagan's memo does not represent a ringing endorsement of plaintiff's position in the case. Also, the case was about Full Faith and Credit, not a constitutional right to a particular type of marriage. Furthermore, during her confirmation as Solicitor General, Kagan, answering a Senate questionnaire, stated that there was no constitutional right to same-sex marriage. At best, it is unclear what position Kagan would take on this issue.

The strongest evidence Crawford presents is language that suggests Kagan disagreed with a case that made it tougher for criminal defendants to prove a claim of ineffective assistance of counsel. Marshall was the lone dissenter in that ruling, which predated Kagan's clerkship.

Finally, Crawford does not state what position Kagan advised Marshall to take in these cases. Other commentary regarding Kagan indicates that she often disagreed when Marshall tried to push more liberal positions than she believed existing law allowed. Even if Kagan has some liberal instincts, it is unclear how this fact would shape her positions as a justice on the Supreme Court.

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