WASHINGTON — Solicitor General Elena Kagan, the former Harvard Law
School dean who is a leading candidate on President Obama’s list of
possible Supreme Court nominees, is facing opposition from some pockets
of the political left because of her past statements on executive power
and detentions, as well as her warm welcome by some conservatives.
Kagan enjoys broad support from a range of scholars and legal
specialists. But some academics and activists are raising concerns
that, if confirmed to replace Associate Justice John Paul Stevens, she
would be inclined to compromise with conservatives and pull the Supreme
Court further to the right.
With Obama sorting through about 10 potential nominees — including
Kagan’s friend, the current Harvard Law School dean, Martha Minow — it
is too early to gauge how Kagan’s chances of getting picked are being
affected. But the complaints have grown loud enough that the White
House, while declining to comment publicly, has begun providing
background information to reporters in a bid to bolster her against
charges from the left.
Kagan, who has never been a judge, lacks a trail of courthouse
decisions, which activists of all stripes say makes it difficult to
fully gauge her views.
A chief complaint from liberals stems from her statement during her
2009 confirmation hearing to be solicitor general, during which she
agreed with a Republican senator, Lindsey O. Graham of South Carolina,
who said the government could hold suspected terrorists indefinitely
Fighting such detentions has been a major cause of many legal
scholars, rights groups, and Democrats. She also is paying the price
for positions taken by the Obama Justice Department, which has
continued to defend Bush administration legal positions on warrantless
wiretapping, detainees, and government secrecy.
“They’re upholding all these reprehensible Bush antiterrorism
policies that have been condemned by every human rights and civil
liberties organization in the country,’’ said Francis Boyle, a
professor of international law at the University of Illinois. “There
has been no retreat by Kagan. She could have backed off on all these
Bush positions and she refused.’’
Kagan’s 2009 confirmation, however, mostly illustrated how she is difficult to pigeonhole ideologically.
A Democratic senator, Amy Klobuchar of Minnesota, marveled during
hearings that Kagan had “managed to get a standing ovation from the
Federalist Society at Harvard,’’ referring to a conservative group that
believes in strict interpretation of the Constitution. But during the
same proceeding, Kagan declared that the greatest lawyer of the 20th
century was the late Supreme Court justice Thurgood Marshall, a liberal
for whom she clerked.
She rebuffed efforts by senators who sought to draw out her views on
the death penalty, for instance — potentially good training for the
issue-avoidance rituals that are even more pronounced during Supreme
Court confirmation hearings.
Ultimately, three Republicans on the Senate Judiciary Committee
backed her, and a fourth praised her without voting on the Senate
floor. Graham, meanwhile, said earlier this week that he was pleased
with the way Kagan responded last year to his questions about detaining
enemy combatants. “I like her,’’ he said, while acknowledging that
praise coming from him might alarm Democrats.
To some in the White House, the positive response from across the
aisle is potential reason to pick Kagan for the high court: It might
avoid a protracted fight in a congressional election year. Other
supporters say she would judge cases fairly and without an overlay of
“She is not an in-your-face ideologue, not at all. That’s not her
style,’’ said Charles Fried, a Harvard Law School professor who served
as solicitor general in the Reagan administration. Judicial activists
on the left “may want it, but we have quite enough of that all around
Curt Levey, executive director of the conservative Committee for
Justice and a Harvard Law graduate, said Kagan “doesn’t seem to hate
conservatives the way that some liberals do.’’ But what might prove
more troublesome, he said, is that activists across the political
spectrum are not sure where she stands.
As soon as Stevens announced his retirement last week and Kagan
emerged as a leading candidate, a number of online publications wasted
no time in publishing critical pieces. Salon.com
published “The case against Elena Kagan,’’ which conservative National
Review Online gleefully trumpeted in a piece called “The Left versus
White House officials characterized the attacks as unfair and uninformed.
At Harvard, Kagan won praise from conservatives by hiring several
new, right-leaning faculty members to a school known as a liberal
bastion, including Jack Goldsmith, an international law expert who was
a lawyer in the administration of George W. Bush; Adrian Vermeule, a
former clerk to Justice Antonin Scalia; and John Manning, onetime clerk
for conservative Robert Bork, the failed Supreme Court nominee.
National Review, a conservative opinion magazine, reported that she
hosted a “delightful’’ dinner for Scalia in 2006 to celebrate his 20th
year on the Supreme Court — in contrast to Yale, where dean Harold Koh,
also a rumored potential Obama Supreme Court pick, was said to have
given the staunchly conservative justice an icier reception.
Fried said he admired that she hired both conservative and liberal
professors to avoid allowing Harvard to become “an academy for the left
wing of the Democratic Party.’’
Her role in an ideological controversy over military recruitment at
the law school generated criticism from both the right and the left.
After a 2004 appeals court in Philadelphia struck down a federal rule
requiring law schools to permit access to military recruiters, Kagan
banned them from Harvard Law’s career office. But in 2005, as the
government was appealing that decision and was threatening Harvard with
the loss of $400 million in federal funds because of Kagan’s stance,
she reversed her decision.
“I regret making this exception to our antidiscrimination policy,’’
she wrote to students at the time, according to the Harvard Crimson.
Some liberals have accused her of giving in to the government on a
matter of principle; conservatives have faulted her for fighting the
policy in the first place.
As solicitor general, which is one of the top positions in the
Justice Department, Kagan has also drawn fire generally for the Obama
administration’s policies on controversial subjects that carried over
from the Bush era, including warrantless wiretapping, Afghan detainee
policies, and rules about secret evidence.
Kagan has not been required to argue or publicly formulate policies
herself on all of those hot-button issues, but that has not stopped
critics from attempting to link her to the Obama administration’s