Solicitor General Elena Kagan, Obama’s rumored potential Supreme Court pick to replace John Paul Stevens, has a history of supporting abortion, repeal of the military’s “Don’t Ask, Don’t Tell” policy and expansion of the president’s regulatory power and has touted controversial White House regulatory “czar” Cass Sunstein as the “preeminent legal scholar of our time.”
‘Don’t ask, don’t tell’
While she served as dean of Harvard Law School in 2003, Kagan blasted an e-mail to students complaining that military recruiters had come to the campus, violating the university antidiscrimination policy, the Washington Post reported.
“This action causes me deep distress,” Kagan wrote. “I abhor the military’s discriminatory recruitment policy.” It is, she said, “a profound wrong – a moral injustice of the first order.”
The Post noted that Kagan’s position was entirely contradictory to the Supreme Court’s unanimous ruling in support of the military recruiters.
Kagan was also one of dozens of law professors to sign a Supreme Court amicus brief in Rumsfeld v. FAIR in opposition to the Solomon Amendment, a federal law denying taxpayer funding to colleges that have policies barring military recruiting on campus.
In 2005, Kagan distributed a note to the Harvard Law School community explaining that the Department of Defense notified Harvard University that it would withhold all federal funds if the law school continued to prohibit the military from being welcomed on campus. She then reluctantly lifted the ban for the fall 2005 recruiting season.
“I have said before how much I regret making this exception to our antidiscrimination policy,” she wrote. “I believe the military’s discriminatory employment policy is deeply wrong – both unwise and unjust. And this wrong tears at the fabric of our own community by denying an opportunity to some of our students that other of our students have.”
Kagan helped organize and moderate Harvard Law School’s 2007 Lambda Gay and Lesbian Legal Advocacy Conference, “Don’t Ask, Don’t Tell,” where she was shown appreciation for her support of the homosexual community.
Kagan was introduced by Harvard law student Alexis Caloza, who thanked Kagan for “her continuing support for the lesbian, gay, bisexual, and transgendered community here at Harvard.”
Caloza continued, “She has been a staunch critic of the Solomon Amendment, and in the months leading up to and following the Supreme Court’s decision in FAIR v. Rumsfeld, she met regularly with students to discuss ways in which the Law School could help ameliorate the harmful discriminatory effects of the Solomon Amendment and ‘Don’t Ask, Don’t Tell’ generally. This conference would not have been possible without the tremendous support HLS Lambda received from Dean Kagan and her office.”
Solicitor General Elena Kagan
Speculation about sexual orientation
The White House harshly criticized CBS News this month after it ran a column by blogger Ben Domenech claiming Kagan is an open lesbian.
Domenech wrote that Obama “would please much of his base” by picking Kagan because she would be the “first openly gay justice.”
The Washington Post reported an unnamed Obama administration official said she is not a lesbian. Likewise, former White House Communications Director Anita Dunn accused CBS News of “posting lies.”
Domenech then added the following update to his post: “While Karlan and Sullivan are open about it, I have to correct my text here to say that Kagan is apparently still closeted – odd, because her female partner is rather well known in Harvard circles.”
CBS News deleted the column posting. Domenech later questioned the White House attack in a column at the Huffington Post.
“I erroneously believed that Ms. Kagan was openly gay not because of … a ‘whisper campaign’ on the part of conservatives, but because it had been mentioned casually on multiple occasions by friends and colleagues – including students at Harvard, Hill staffers, and in the sphere of legal academia – who know Kagan personally.”
Domenech wasn’t alone in his initial belief that Kagan is a lesbian. Numerous blogs that cater to the homosexual community such as 365gay.com, Queerty and On Top Magazine have identified Kagan as “openly gay.”
Public funding of abortion
Pro-life advocates say Kagan has supported public funding of abortions.
Americans United for Life reported, Kagan has “publicly and repeatedly criticized Rust v. Sullivan, a 1991 U.S. Supreme Court decision upholding federal regulations that prohibit recipients of Title X family-planning funds from counseling on or referring women for abortions. Ignoring the American public’s opposition to the use of taxpayer dollars to directly or indirectly subsidize abortion, Kagan argued that the regulations amounted to the subsidization of ‘antiabortion’ speech.”
According to National Review Online, when she was a law clerk for U.S. Supreme Court Justice Thurgood Marshall in 1987, Kagan wrote a memo in the case of Bowen v. Kendrick stating that faith-based groups shouldn’t play a role in counseling pregnant teens because they would impose their own religious beliefs on the teens. She explained:
The funding here is to be used to support projects designed to discourage adolescent pregnancy and to provide care for pregnant adolescents. It would be difficult for any religious organization to participate in such projects without injecting some kind of religious teaching. … [W]hen the government funding is to be used for projects so close to the central concerns of religion, all religious organizations should be off limits.
In 2009, Marjorie Dannenfelser, president of Susan B. Anthony List, told Life News her group urged pro-lifers to contact senators in opposition to Obama’s then-selection of Kagan as solicitor general.
“In the past Kagan has been a strong supporter of the proabortion agenda,” Dannenfelser said. “She has vigorously opposed the defunding of taxpayer-funded clinics which promote abortions, despite the fact that a majority of Americans do not want their tax dollars to fund abortion providers.”
Kagan: Give president more regulatory power
As WND’s Aaron Klein reported, Kagan has advocated for an increased presidential role in regulation, which, she conceded, would make such affairs more and more an extension of the president’s own policy and political agenda.
Writing in the Duke University law journal on the issue of the presidential role in regulation, Vanderbilt law professor James Blustein quoted Kagan extensively regarding her views on the issue. Blustein himself was President George W. Bush’s pick to head the Office of Information and Regulatory Affairs, a position now filled by regulatory “czar” Cass Sunstein.
WND found that in his academic paper, Blustein quoted Kagan, formerly a senior member of President Clinton’s White House domestic-policy staff, asserting, “[W]e live today in an era of presidential administration,” an assertion that, she acknowledged, might be “jarring” or “puzzling” to some.
Kagan argued, “Presidential control of administration, in critical respects, expanded dramatically during the Clinton years, making the regulatory activity of the executive-branch agencies more and more an extension of the president’s own policy and political agenda.”
Kagan herself, writing in the Harvard Law Review in 2001, argued that an increased presidential role in regulation “both satisfies legal requirements and promotes the values of administrative accountability and effectiveness.”
William F. West, a Texas A&M professor who specializes in federal administration, told the Boston Globe last year, “She is certainly a fan of presidential power.”
Cass Sunstein: ‘Preeminent legal scholar’
While she was a dean at Harvard, Kagan hired numerous high-profile law professors. One was Cass Sunstein, the current controversial White House regulatory “czar.”
The Boston Globe reported when Kagan announced her choice of Sunstein for the position, she touted him as “the preeminent legal scholar of our time.”
As WND reported, Sunstein has argued interpretation of federal law should be made not by judges but by the beliefs and commitments of the U.S. president and those around him.
“There is no reason to believe that in the face of statutory ambiguity, the meaning of federal law should be settled by the inclinations and predispositions of federal judges. The outcome should instead depend on the commitments and beliefs of the President and those who operate under him,” Sunstein argued.
This statement was the central thesis of Sunstein’s 2006 Yale Law School paper, “Beyond Marbury: The Executive’s Power to Say What the Law Is.” The paper, in which he argues the president and his advisers should be the ones to interpret federal laws, was obtained and reviewed by WND.
WND also reported Sunstein wrote it is “desirable” to redistribute America’s wealth using “environmental justice.” He argued that global climate change is primarily the fault of U.S. environmental behavior and can, therefore, be used as a mechanism to redistribute the country’s wealth.