LYNN NEARY, host:
For a legal scholar, Elena Kagan has a remarkably sparse public record. Some are saying that's one of the reasons President Obama picked her. And it's clear that critics are hungry for some meaty issues to pick over during the confirmation process.
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: The first new meat was produced last night, when documents from the Clinton Library surfaced indicating that Kagan, when she worked in the Clinton White House, had urged the president - for political reasons - to support a compromise bill on so-called partial birth abortions - a compromise that would have banned such abortions, except to protect the health of the mother. The president did support the compromise, but the Republican-controlled Congress rejected the measure in favor of a stricter Republican-supported ban, which the president then vetoed.
Other intellectual meat is to be found among the papers submitted at the time of Kagan's solicitor general confirmation hearing last year. In particular, there's a letter that Kagan signed - along with the deans of the Yale, Georgetown and Stanford law schools - opposing a key piece of legislation proposed by Republican Senator Lindsey Graham of South Carolina.
Now, Lindsey Graham is not just any Republican senator. He was the only Republican on the Senate Judiciary Committee who voted for the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court last year. And he's been a leading player in discussions over detainee rights at Guantanamo Bay, Cuba.
But in 2005, he was trying to strip the courts of jurisdiction to review almost anything that took place at Gitmo, and Kagan and the three other deans wrote to the Senate Judiciary Committee opposing the Graham legislation.
To put this most pointedly, the deans said in their letter, were the Graham amendment to become law, a person suspected of being a member of al-Qaida 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, the deans said. When dictatorships have passed similar laws, they added, our government has rightly challenged such acts as fundamentally lawless.
The letter all but assures that Kagan will get a grilling on national security questions involving presidential power. That is particularly ironic, since liberal and human rights activists have been critical of Kagan for defending what they view as the Bush-lite positions taken by the Obama administration in war-on-terror issues.
The other issue guaranteed to rear its head stems from Kagan's actions with regard to military recruiters on campus at Harvard Law School when she was dean. She did not originate, but continued the policy of denying equal access to military recruiters because the school viewed the military's don't ask, don't tell policy as discrimination based on sexual orientation. Instead, military recruitment had to be done through a veterans group with few resources.
Congress then passed a law cutting off federal funds to schools which refuse to allow military recruitment on campus, and in 2002, the Defense Department said that while Harvard Law School did not receive federal funds, the rest of the university did, to the tune of $328 million, and that the school would lose all of it if it didn't allow military recruiters equal access on the law school campus. Kagan signed a friend of the court brief in the Supreme Court, siding with a consortium of law schools that opposed the government position. When her side lost, she quickly rescinded the ban on military recruiters, but wrote to the student body that she believed the don't ask, don't tell policy to be, quote, "profoundly wrong - both unwise and unjust," close quote.
Nina Totenberg, NPR News, Washington.
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