Elena Kagan confirmed as Solicitor General of U.S.

BY MATT HUTCHINS

Elena Kagan ’86 sitting to the right of Retired Associate Justice of the Supreme Court Sandra Day O’Connor at the 2008 Charles Hamilton Houston Institute Conference

Harvard Law School Dean Elena Kagan ’86 has been confirmed to serve as the 45th Solicitor General of the United States. The Associated Press reports that the confirmation occurred on March 19 by a Senate vote of 61 to 31. Kagan is the first woman to serve as Solicitor General, and she is widely viewed as a front-runner for nomination to the Supreme Court of the United States. She served as Dean of HLS from 2003 to 2009 and will be succeeded by Acting Dean and James S. Reid Professor of Law Howell Jackson ’82.

Although Kagan’s confirmation appeared to be secure early on, she encountered some late resistance from ranking member of the Senate Judiciary Committee Arlen Specter (R-PA), who posed several pointed questions in written inquiries to Kagan. Specter sought to examine Kagan’s positions on issues such as the death penalty, habeas corpus, the Second Amendment, executive authority, regulation of obscenity, the role of the courts, judicial activism, and her views of Justice Ginsburg. Kagan provided answers to every question posed, but limited her responses according to her view of the proper scope of discussion for a nominee to the post of Solicitor General. “Like other nominees to the Solicitor General position, I have refrained from providing my personal opinions . . . both because these opinions will play no part in my official decisions and because such statements of opinion might be used to undermine the interests of the United States in litigation.”

Kagan declined to comment on a number of cases for which Senator Specter specifically asked if she believed the Court had “correctly decided.” She emphasized throughout her answers that she has great respect for her duty to always advocate faithfully for the interests of the United States, and she made clear that her past opinions and positions would in no way interfere with her future fulfillment of her role as advocate for the United States. Referring to her past opposition to the Solomon Amendment, Kagan said, “As the dean of a law school with a general nondiscrimination policy – meant to protect each of our students regardless of such factors as race, religion, sex, or sexual orientation – I thought the right thing to do was to defend that policy and to do so vigorously.” As Solicitor General, however, Kagan noted that she would have clearly sought Supreme Court review of the Third Circuit’s decision that the Solomon Amendment was unconstitutional. “Indeed, this would have struck me as an easy case: a federal statute had been invalidated on constitutional grounds and there were clearly reasonable arguments that could be made in its defense.”

Specific cases to which Specter referred in his questions to Kagan included Kennedy v. Louisiana (2008)(capital punishment for child rape), District of Columbia v. Heller (2008)(Second Amendment), Washington v. Glucksberg, 521 U.S. 702 (1997)(assisted suicide), Boumediene v. Bush (2008)(habeas corpus), Kelo v. City of New London, 545 U.S. 469 (2005)(takings), Zelman v. Simmons-Harris, 536 U.S. 639 (2002)(Establishment Clause), Morrison v. Olson, 487 U.S. 654 (1988)(independent-counsel statute), Rumsfeld v. FAIR, 547 U.S. 47 (2006)(Solomon Amendment) and EPA v. New Jersey (2008)(Clean Air Act).

When Kagan declined to engage in an analysis of past cases, Senator Specter sent a letter warning that her responses had been inadequate. Citing to a review by Kagan of Stephen Carter’s book The Confirmation Mess, Specter encouraged Kagan to give insight into her judicial philosophy and views on specific legal issues, insisting that such information could assist in the proper evaluation by the Senate of her nomination. Kagan responded with a letter which expressed a respectful desire to remain silent within the scope of professional duties asserted historically by nominees to the post of Solicitor General. According to Kagan, past nominees, including Paul Clement and Seth Waxman, have asserted a duty to refrain from expressing views or positions in advance of a concrete case or making statements which could lead to later recusal from a case or impeachment of arguments. Kagan offered to answer any of Senator Specter’s further questions to the degree possible in a direct meeting, and Senator Specter expressed an intention to accept her offer to meet when he spoke at the executive meeting of the Senate Judiciary Committee during which her nomination was sent to the floor of the Senate for a vote.

Oral arguments are scheduled to resume next week before the Supreme Court.

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