NPR logo Kagan's Views On Military Recruiting And Detainees May Draw Questions


Kagan's Views On Military Recruiting And Detainees May Draw Questions

Solicitor General Elena Kagan is President Barack Obama's choice to succeed retiring Justice John Paul Stevens on the Supreme Court, NPR's Nina Totenberg has confirmed.

NBC broke the news a short time ago. The official announcement is expected at 10 a.m. ET Monday.

In a profile of Kagan, Nina notes that:

"If she is confirmed, the court, for the first time in its history, will have three women justices. It would also be the first time the court would have no Protestant justices. Kagan would become the third Jewish justice, and there are six Catholic justices. At age 50, she would also be the youngest justice."

And Nina adds that:

"Opposition to Kagan now is expected to focus on the fact that she has no experience as a judge, and on the position she took at Harvard Law School, when she refused to let military recruiters operate on campus because of the military's 'don't ask, don't tell' policy. ...

"More than most prominent legal figures, Kagan has avoided public comments on most of the flashpoint issues of recent decades. So sparse are her published views that liberals have privately been wary about a Kagan nomination. ...

"Hidden in plain sight, though, is a letter Kagan signed that neither liberals nor conservatives have commented on, though it is part of the public record.

"In a 2005 letter to Sen. Patrick Leahy, Kagan and three other deans of major American law schools, wrote to oppose legislation proposed by Sen. Lindsey Graham (R-SC) to strip the courts of the power to review the detention practices, treatment and adjudications of guilt and punishment for detainees at Guantanamo Bay, Cuba.

" 'To put this most pointedly,' the letter said, 'were the Graham amendment to become law, a person suspected of being a member of al-Qaeda could be arrested, transferred to Guantanamo, detained indefinitely ... subjected to inhumane treatment, tried before a military commission and sentenced to death without any express authorization from Congress and without review by any independent federal court. The American form of government was established precisely to prevent this kind of unreviewable exercise of power over the lives of individuals.'

" 'When dictatorships have passed' similar laws, said the deans, 'our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government.' "

Most pre-nomination analyses have concluded that Kagan is not likely to face tough opposition from Senate Republicans, however. Politico writes that "Obama's choice of Kagan, who currently serves as the government's top lawyer before the high court, signals a desire to dodge a major showdown with Republicans, and she drew praise from GOP legal luminaries such as Ted Olson and Ken Starr when Obama named her as solicitor general last year."