Myths and facts about Elena Kagan


Of course, the mud-slinging from the far right (although not all conservatives, as we see below) has begun even before President Obama formally nominates Solicitor General Elena Kagan to a seat on the U.S. Supreme Court.

Here’s a SUMMARY of the allegations and the arguments against them.

An excerpt:

Myth: Kagan is “radical”

CLAIM: Kagan is a “radical” who is “outside the mainstream.” Conservatives have indicated they will brand any Obama Supreme Court nominee — including Kagan — as a radical. For example, conservative activist Richard Viguerie has reportedly said, “The more quickly we can identify [the nominee] as an ideological liberal, the easier it is for us to communicate to the American people how radical the president is and the nominee is.” Similarly, Glenn Beck has said that President Obama is going to pick a “radical” nominee. In a March 19, 2009, Family Research Council Action press release, Tony Perkins claimed that Kagan “is well outside the mainstream of public opinion and to the left even of President Obama.”

FACT: Kagan is considered to be relatively moderate. Reuters noted on May 7 that Kagan is “considered one of the more moderate choices on Obama’s short list of potential court nominees.”

FACT: Numerous conservatives have praised Kagan.

  • NRO’s Daniel Foster praised Kagan as being “well-respected by just about everybody on both sides.” In an April 9 post on The Corner, National Review Onlinenews editor Daniel Foster wrote that Kagan “is well-respected by just about everybody on both sides.”
  • Bush assistant AG: “Kagan combines principle, pragmatism, and good judgment better than anyone I have ever met.” In a letter supporting Kagan’s nomination for solicitor general, Jack Goldsmith — former assistant attorney general for the Office of Legal Counsel during the Bush administration — stated: “It might seem over the top to say that Kagan combines principle, pragmatism, and good judgment better than anyone I have ever met. But it is true.”
  • Starr, Olson and bipartisan group of former solicitors general: Kagan held in “high regard” by “persons of a wide variety of political and social views.” In a letter sent by people who “serv[ed] as Solicitor General over the past quarter century, from 1985 to 2009,” Charles Fried, Kenneth Starr, Drew Days, Walter Dellinger, Seth Waxman, Theodore Olson, Paul Clement, and Gregory Garre stated:


  1. Quentink

    People don’t even understand the meaning of the word radical anymore. They think it means anyone with a differing opinion.

    Kagan should be promptly approved. Of course you will see posturing on the right to try and gain political points by being’outraged’ by her nomination. This only proves the rampant idiocy of the ‘oppose everything’ crowd and not Kagan’s qualifications. Once again President Obama has done an outstanding job in picking his candidate.

  2. Mike Carroll

    I am always amused by the Left’s feigned shock at the Right’s reaction to a Democratic Presidents nomination to the Supreme Court. Democrats started this mud fight back in the late 80’s with the nomination of Robert Bork and now cry foul when similar tactics are used against them. For those of you with a limited memory of the Bork confirmation (lynching), I would suggest the chapter from Steven F. Hayward’s The Age of Reagan on the event. For those of you who will not take the time, suffice it to say that Liberals achieved new depths of political depravity being led by Ted Kennedy and Joe Biden.
    As far as Kagan is concerned, Obama ticked 3 liberal boxes with the nomination. She is female, Jewish and rumored to be gay. This clears the way for him to appoint a male when Ginsburg (sp?) steps down as is rumored for the near future. Kagan has never been a judge at any level. Imagine the Liberal reaction if a Republican President made a similar nomination. No big surprise given the thin resume of her appointer. Make no mistake; this is a political appointment, not a Judicial appointment.

  3. Mike Carroll: “A political appointment, not a judicial appointment”??? Imagine that.

    You’re not really that naive, are you? You’re not really saying that no Republican president has ever considered the politics of the matter in making a high-court appointment, are you?

    By the way, it’s silly to say that this is “not a judicial appointment.” By definition, it is, in fact, a judicial appointment, just as every court appointment is.

    And please don’t tell me that Kagan is unqualified simply because she has no judicial experience. Of the 111 justices who have served on the Supreme Court, 41 of them had no prior judicial experience — including one of your heroes, William Rehnquist.

  4. Neftali

    Pat – The problem is that Kagan not only doesn’t have prior judicial experience, but she doesn’t even have that much experience as a lawyer.

    Harriet Miers practiced law in the private sector for 27 years. Kagan has spent most of career in theoretical abstract world of academia.

    In fact, Kagan does not even measure up to her OWN standards, as the National Review clearly points out.


  5. Mike Carroll: Speaking of William Rehnquist, as I was comment No. 3, when the Senate voted to confirm his appointment as chief justice, 16 of 47 Democrats voted in the affirmative. What are the chances that a similar percentage of Republican senators will vote to confirm ANY high-court nomination from Obama? The answer, of course, is none, zip, nada, zilch.

  6. Neftali

    Pat – 9 out of 40 Republican Senators voted for Sonya Sotomayor or 22%. 16 out of 47 is 34%.

    So to get a similar number, 14 out of 41 Republican Senators, or 5 more Senators than what Sotomayor received, will be needed.

    What are the chances? I’d say there’s an outside shot, at least much more than Zero which you suggest.

  7. Mike Carroll

    Pat-Rehnquist was confirmed as Chief Justice in 1986, well before the Bork inquisition poisoned the process, a point you wisely don’t dispute I notice.
    Kagan’s suitability for the bench will be determined in her hearings so we shall see. I am well aware that other Court justices did not have judicial experience when nominated. I never stated otherwise. Funny though, I seem to recall a great hue and cry from the left when Bush 1 nominated David Souter as a “stealth” candidate given his relative lack of time on the bench. I have to continually remind myself that the rules are different for liberals.

  8. Mike Carroll

    Evidently there are those among us who believe that incoherence is an art form.

  9. FROM THE NPR REPORT: “Probably the best thing Kagan has going for her, politically, is support from many conservative scholars. As dean at Harvard, she ended the long-running ideological faculty wars over new hires, adding 22 new tenured professors, including a number of prominent conservatives. Among her fans is Harvard professor and Reagan administration Solicitor General Charles Fried.”

    There’s a lot of mud being slung around and it would take the Mythbusters to bunk all of these rumors. Here are a few just to make things a little less foggy:

    1. MYTH: Kagan “defied” the law and banned military recruiters from Harvard
    FACT: Kagan consistently followed the law, and Harvard students had access to military recruiters during her entire tenure as dean

    2. MYTH: The First Amendment is something she doesn’t like
    FACT: Kagan’s First Amendment views are mainstream and “generally pretty speech-protective

    3. MYTH: Kagan is possibly “the next Harriet Miers” in that she has never served as a judge and has a “thin legal paper trail.
    FACT: Numerous legal experts have rejected the comparison, saying it is “inapt” and that Kagan “is no Miers” and “couldn’t be farther” from her.

    4. MYTH: Kagan is a “radical” who is “outside the mainstream.
    FACT: Kagan is considered to be relatively moderate. Conservatives have admitted that they will brand any Obama Supreme Court nominee as a radical. (I wonder if they’d do that if one of his nominees happened to be conservative like them?)

    5. MYTH: Kagan’s thesis shows that she was a radical or a socialist
    FACT: Kagan is not and was not a radical or a socialist; her thesis simply explored historical questions about socialism. (I did a report in my history class about witchcraft during a chapter about the salem witchcraft trials. does that make me a witch?)

    6. MYTH: Current SEC charges against Goldman Sachs are somehow relevant to Kagan’s nomination
    FACT: Kagan was a member of a Goldman Sachs advisory panel that met once a year and wasn’t involved in investment decisions. USA Today also reported panel was part of Goldman group that “was not involved in the conduct being challenged by the SEC.

    Oh and about Ms. Kagan supposedly being lesbian: The Wall Street Journal published a photo of her holding a baseball bat when she was a teacher at University of Chicago and claimed it (softball) is a lesbian sport, so therefore she must be lesbian. Well excuse me — I played softball when I was little. Am I a lesbian? No. Check out this Facebook page and the many like it from the enraged softball players: http://www.facebook.com/#!/pages/Being-a-softball-player-does-NOT-automatically-make-me-a-lesbian/168391059981?ref=search

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