Kagan's Legal Record Portrays a Cautious Liberal

Published May 11, 2010

| The Wall Street Journal

Elena Kagan's legal record is thinner than most other U.S. Supreme Court nominees. She hasn't served as a judge or taken sharp positions on many constitutional and other legal issues that often trip up potential justices.

As senators pick through her scholarly writings, speeches and decisions as dean of Harvard Law School, some themes are likely to emerge. Ms. Kagan generally takes liberal stands when she delves into social issues, but does so cautiously and with nuances that leave some liberals less than thrilled with her nomination.

Meanwhile, her scholarship supporting an expansive view of presidential powers is potentially attractive to both liberals and conservatives, again suggesting that Ms. Kagan isn't the lightning rod for the right that some other candidates would have been.

One social issue likely to get significant attention is Ms. Kagan's stand on gay rights when she was at Harvard.

In a 2003 email to faculty and students, Ms. Kagan called the military's policy barring active homosexuals from serving "a profound wrong—a moral injustice of the first order."

In 2005, Ms. Kagan was one of 40 professors who signed a "friend-of-the-court" brief urging the Supreme Court to uphold a ruling permitting law schools to limit access by the military to campus recruiting events. The brief took a more modest position than others. Rather than calling the 1996 Solomon Amendment unconstitutional, it argued that schools were in compliance with the statute because they treated the military equally with all other employers that discriminated against homosexuals. Nevertheless, the Supreme Court found otherwise.

While Ms. Kagan sided with gay-rights proponents on that case, she was more cautious in 2009 during her confirmation as solicitor general, when she wrote that there is no federal constitutional right to same-sex marriage. Pamela Karlan, a constitutional-law professor at Stanford Law School, said Ms. Kagan was reflecting current law, not necessarily giving her own view.

On hot-button issues such as abortion, the death penalty and gun control, Ms. Kagan again skirted controversy during last year's confirmation. She said she was fully prepared to argue that the death penalty was constitutional and would uphold prevailing law that says the Constitution protects a woman's right to terminate a pregnancy.

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