Top 5 Problems With Elena Kagan’s Testimony

#1 – Kagan Gave Two Different Answers To The Same Question About Her Politics

TO SENATOR SESSIONS: “I’M NOT QUITE SURE HOW I WOULD CHARACTERIZE MY POLITICS”
ELENA KAGAN: “I'm Not Quite Sure How I Would Characterize My Politics.” SEN. JEFF SESSIONS (R-AL): “Greg Craig, the former chief counsel to President Obama, who's known you for some time, I understand, said of you, "She is largely a progressive in the mold of Obama himself," close quote. Do you agree with that?” ELENA KAGAN: “Well, Senator Sessions, I'm not quite sure how I would characterize my politics.” (Judiciary Committee, U.S. Senate, Confirmation Hearing, 6/29/10)

TO SENATOR GRAHAM: “MY POLITICAL VIEWS ARE GENERALLY PROGRESSIVE”
ELENA KAGAN: “My Political Views Are Generally Progressive.” SEN. LINDSEY GRAHAM (R-SC): “Would you consider them -- your political views progressive?” ELENA KAGAN: “My political views are generally progressive.” (Judiciary Committee, U.S. Senate, Confirmation Hearing, 6/29/10)

#2 Kagan Said She Provided “Full And Good Access” To Military Recruiters
ELENA KAGAN: “Senator, The Military At All Times During My Deanship Had Full And Good Access.” (Judiciary Committee, U.S. Senate, Confirmation Hearing, 6/29/10)

IN 2004, KAGAN “BARRED MILITARY RECRUITERS” FROM HARVARD LAW
“In November 2004, The Appeals Court Ruled, 2 To 1, That Solomon Was Unconstitutional, Saying It Required Law Schools ‘To Express A Message That Is Incompatible With Their Educational Objectives.’” (“Potential Court Pick Faced Dilemma At Harvard,” The New York Times, 5/7/10)

“The Day After The Ruling, Ms. Kagan — And Several Other Law School Deans — Barred Military Recruiters From Their Campuses.” (“Potential Court Pick Faced Dilemma At Harvard,” The New York Times, 5/7/10)

“But The Ban Lasted Only For The Spring Semester In 2005. The Pentagon Told The University Over The Summer That It Would Withhold ‘All Possible Funds’ If The Law School Continued to bar recruiters from the main placement office.” (“Potential Court Pick Faced Dilemma At Harvard,” The New York Times, 5/7/10)

“So, After Consulting With Other University Officials, Ms. Kagan Said, She Lifted The Ban.” (“Potential Court Pick Faced Dilemma At Harvard,” The New York Times, 5/7/10)

MILITARY: KAGAN “STONEWALLED” MILITARY RECRUITERS
AIR FORCE JAG RECRUITING CHIEF: “[D]enying Access To The Career Services Office Is Tantamount To Chaining And Locking The Front Door Of The Law School.” “Career Services Offices are the epicenter for all employer hiring activities at a law school. … Without the support of the Career Services Office, we are relegated to wandering the halls in hopes that someone will stop and talk to us. [D]enying access to the Career Services Office is tantamount to chaining and locking the front door of the law school – as it has the same impact on our recruiting efforts.” (Email From Air Force JAG Recruiting Chief, 1/28/05 (K2DOD – 0001358)

“Harvard Is Playing Games And Won't Give Us An OCI [On-Campus Interviewing] Date; their official window for employer registration has closed. Their recruiting manager told me today that she's still ‘waiting to hear’ whether they’ll allow us.” (Email From Air Force JAG Recruiting Chief, 1/28/05 (K2DOD – 0001358))

ARMY REPORT TO SENIOR PENTAGON LEADERS: “The Army Was Stonewalled At Harvard. Phone Calls And Emails Went Unanswered And The Standard Response Was – We’re Waiting To Hear From Our Higher Authority.” (Email Forwarding Army Report To Senior Pentagon Leaders, March 2, 2005 (K2DOD – 0001168-69))

HARVARD LAW SCHOOL VETERANS ASSOCIATION: INTERVIEWS ENCOURAGED OFF CAMPUS
HARVARD LAW SCHOOL VETERANS ASSOCIATION: “Interviewers Will Be Strongly Encouraged To Arrange For An Off-Campus Location To Conduct Interviews.” (Harvard Law School Veterans Association, Statement, 2/18/05)

HARVARD LAW SCHOOL VETERANS ASSOCIATION: “Given Our Tiny Membership, Meager Budget, And Lack Of Any Office Space, We Possess Neither The Time Nor The Resources To Routinely Schedule Campus Rooms Or Advertise Extensively For Outside Organizations, As Is The Norm For Most Recruiting Events. …  [Our Effort] Falls Short Of Duplicating The Excellent Assistance Provided By The HLS Office Of Career Services.” (Harvard Law School Veterans Association, Statement, 2/18/05)

# 3 – Kagan Admitted “It’s A Little Bit Difficult To Take Off The Advocate's Hat And Put On The Judge's Hat.”
ELENA KAGAN: “It’s A Little Bit Difficult To Take Off The Advocate's Hat And Put On The Judge's Hat.” SEN. ARLEN SPECTER (D-PA): “Ms. Kagan, you have said that many times today about your advocacy in the [Citizens United] case, but what I want to know is as a prospective justice, do you consider it a jolt to the system?” ELENA KAGAN: “Sen. Specter, it’s a little bit difficult to take off the advocate's hat and put on the judge's hat, and one of the things that I think is important is that I appreciate the difference between the two, and I have been an advocate with respect to Citizens United, and that's the way I came to the case. It's the way I approached the case. I hope that I did a good and effective job in it, and I believed what I was saying, but it's a different role and it's a different thought process, than the role and the thought process that one would use as a judge.” SPECTER: “Well, what I’m interested is what you should use as a judge.” (Judiciary Committee, U.S. Senate, Confirmation Hearing, 6/29/10)

#4 – Kagan Says Her Role In Clinton Admin. Was To “Implement His Policy Views” Despite Documents Showing Her Criticizing His Views And Pushing Her Own
ELENA KAGAN: “I Worked For President Bill Clinton And We Tried To Implement His Policy Views And Objectives.” (Judiciary Committee, U.S. Senate, Confirmation Hearing, 6/29/10)
Kagan Said President Clinton’s Opposition To “Elective” Partial-Birth Abortion Was “A Problem”
MEMO TO PRESIDENT CLINTON: “MR. PRESIDENT: Attached is a memo from Leon, Jack, George and Nancy-Ann Min on the partial birth abortion bill, setting forth four policy options and attaching a proposed letter to Senator Hatch. DOJ believes that only Option 4 is constitutional, while our Counsel’s office believes any of Options 2-4 are constitutionally sound. In essence these are the options:

1. No use of this procedure in pre- or post-viability stage unless the abortion is being performed because the pregnancy itself threatens life or serious adverse health consequences.

2. Same as Option 1 post-viability, but broader use pre-viability -- namely, if woman chooses an elective (non-health) abortion, she could choose to use this procedure as long as the procedure (as opposed to other procedures) were necessary to avert risk to life or serious adverse health consequences.” (Memo, KCL – 0089762, Clinton Library, 2/5/96)

PRESIDENT CLINTON: “Leon [Panetta] agree w/ #1.” (President Clinton, Note On Memo, KCL-0089762, Clinton Library, 2/5/96)

ELENA KAGAN: “You’re right – this is a problem. It seems as if he wants Option 1 (which was also Leon’s preference). Call me whenever. Elena.” (Elena Kagan, Note Regarding President’s Decision, KCL – 0089758, Clinton Library, 2/96)

JACK QUINN: “E – HE DOES. JQ.” (Jack Quinn, Note Regarding President’s Decision, KCL – 0089758, Clinton Library, 2/96)

#5 – Kagan Casts Aside Previous Criticisms Of The Hearing Process And Strictly Limits Her Own Testimony
ELENA KAGAN: “It Wouldn’t Be Appropriate For Me To Talk About What I Think About Past Cases, You Know, To Grade Cases Because Those Cases Themselves Might Again Come Before The Court.” (Elena Kagan, Judiciary Committee, U.S. Senate, Hearing, 6/29/10)
FLASHBACKELENA KAGAN: “The Problem Is Not That Senators Engage In Substantive Discussion With Supreme Court Nominees; The Problem Is That They Do Not. Senators Effectively Have Accepted The Limits On Inquiry. … The Challenge Now Is To Over-Throw Them.” “The problem is not that the Bork hearings have set a pattern for all others; the problem is that they have not. And the problem is not that senators engage in substantive discussion with Supreme Court nominees; the problem is that they do not. Senators effectively have accepted the limits on inquiry Carter proposes; the challenge now is to over-throw them.” (Elena Kagan, “Review: Confirmation Messes, Old and New,” The University of Chicago Law Review, Vol.62, No. 2 (Spring, 1995), P.942)

KAGAN: “I Suspect That Both [Ginsburg And Breyer] Appreciated That, For Them (As For Most), The Safest And Surest Route To The Prize Lay In Alternating Platitudinous Statement And Judicious Silence. Who Would Have Done Anything Different, In The Absence Of Pressure From Members Of Congress? And Of Such Pressure, There Was Little Evidence.” (Elena Kagan, “Review: Confirmation Messes, Old and New,” The University of Chicago Law Review, Vol.62, No. 2 (Spring, 1995), P.928)

ELENA KAGAN: “The Recent Hearings On Supreme Court Nominees” Have Taken “On An Air Of Vacuity And Farce.” “The recent hearings on Supreme Court nominees, though, suggest another question: might we now have a distinct and more troubling confirmation mess? If recent hearings lacked acrimony, they also lacked seriousness and substance. … When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.” (Elena Kagan, “Review: Confirmation Messes, Old and New,” The University of Chicago Law Review, Vol.62, No. 2 (Spring, 1995), P.920)

KAGAN: “Subsequent Hearings Have Presented To The Public A Vapid And Hollow Charade, In Which Repetition Of Platitudes Has Replaced Discussion Of Viewpoints And Personal Anecdotes Have Supplanted Legal Analysis.” (Elena Kagan, “Review: Confirmation Messes, Old and New,” The University of Chicago Law Review, Vol.62, No. 2 (Spring, 1995), P.941)

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