Bill Saunders, senior vice president of legal affairs at the Americans United for Life, writes in today’s Roll Callabout Supreme Court appointee Elena Kagan:
Elena Kagan has expressed a deep affection for the Supreme Court justice she clerked for, Thurgood Marshall. While personal affection of a clerk for her judge is certainly normal and understandable, it goes beyond that. She admired his judicial philosophy. This could have grave consequences should she become another agenda-driven justice on the Supreme Court.
In a 1993 Texas Law Review article following Marshall’s death, Kagan described his constitutional interpretation as “a thing of glory.” Why? Because he thought the role of the court was to “show a special solicitude for the despised and disadvantaged.” While that may be admirable in the abstract, the reality of Justice Marshall’s decisions concerning abortion bears further scrutiny.
Saunders then scrutinizes what her hero-worship of her one-time mentor might mean when it comes to abortion because the former Supreme Court justice “frequently dissented on cases involving reasonable restrictions to abortion.” You can read for yourself his abortion jurisprudence. Saunders concludes: “Elena Kagan must answer questions about whether she agrees with her mentor’s opposition to abortion regulations.” This is especially so considering her less than forthright responses in regard to her memos to her boss back in the day:
In 2008, Kagan attempted to distance herself from Justice Marshall. In response to a question before the Senate about a memo she wrote for Marshall while serving as his clerk, Kagan stated that she was a “27-year-old pipsqueak” who was trying “to facilitate his work and to enable him to advance his goals and purposes as a Justice.”
But the memo, along with other memos that were recently given to the Senate Judiciary Committee, frequently states “I think” or “I recommend.” Kagan is espousing her own views, and not simply the views of Marshall, despite her attempts to distance from them.
What we do know about Kagan is troubling, but more concerning are the gaps in information.