2008 record      


Supreme Court: It's no mystery why the White House wants nominee Elena Kagan to remain a mystery. The more we know of her views, the more we know she'd be a justice of the left.

The way the president wants to rush the Kagan nomination through, you'd think having her confirmed would plug the hole at the bottom of the Gulf of Mexico. The U.S. solicitor general was nominated on May 10, and Senate Democrats have scheduled her hearings to begin just seven weeks later, on June 28.

Compare with the case of another solicitor general, Judge Robert Bork, nominated by President Reagan on July 1, 1987, but whose hearings didn't begin until Sept. 15. Then-Senate Judiciary Committee Chairman Joe Biden and his colleagues gave themselves 2 1/2 months to gather and load their ammunition.

p06042010In even less than a month, some of the worst fears of Republicans about the aggressiveness of the nominee's ideology are being confirmed.

For instance, the 46,500 pages on Kagan from the Clinton Library just provided to Congress reveal that as a policy adviser to President Clinton, she helped him craft a rhetorical defense of his veto preventing restrictions on the grisly procedure of late-term abortion.

In 1998, Kagan issued a handwritten note describing a federal law banning assisted suicide as "a fairly terrible idea." The note was part of an internal Clinton White House give-and-take regarding Oregon's letting doctors use drugs to help the terminally ill take their own lives.

This paper trail is a far more reliable indicator of who the real Elena Kagan is, and what a Justice Kagan would be like, than the pragmatism of her recent cases as solicitor general, such as her tough-on-crime stance in the high court's Berghuis v. Thompkins ruling defining Miranda rights, which was decided June 1.

Another good peek into Kagan's thinking comes from her time as liberal Justice Thurgood Marshall's clerk. CBS News got hold of documents "buried in Marshall's papers in the Library of Congress" in which she made it clear that she is well to the left of center on issues ranging from gun rights to same-sex unions.

In a case regarding a prisoner who wanted the government to pay for her abortion, Kagan warned Marshall in 1988: "This case is likely to become the vehicle that this court uses to create some very bad law on abortion and/or prisoners' rights."

And in a case arguing that Washington, D.C.'s handgun ban was unconstitutional, Kagan wrote to Marshall that "I am not sympathetic" — putting her at odds with the Supreme Court's ruling two years ago nullifying the D.C. law on the basis of the Second Amendment.

In her confirmation hearings for solicitor general last year, Kagan claimed that she was only "a 27-year-old pipsqueak, and I was working for an 80-year-old giant in the law." But many of her memos to Marshall are written in the first person, and it's pretty clear that they reflect Kagan's personal views.

Her note on the high court's 1984 Supreme Court Strickland decision, for instance, which made it harder for convicted criminals to claim that they were deprived of good legal representation, notes that "I'd like to reverse Strickland too," but "something tells me this court won't buy the idea."

Polls show that an unusually huge proportion of Americans are undecided about Elena Kagan. The IBD/TIPP poll summarized above shows 36% of people undecided.

If ever there was a Supreme Court nomination that shouldn't be rushed, it's this one. With zero experience as a judge, Kagan is a mystery woman whose views look more disturbing the more we uncover them.

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