Wednesday round-up – Part II

By Adam Schlossman
on May 12, 2010 at 12:27 pm

One hot topic during Kagan’s confirmation is likely to be a memo to then-President Bill Clinton that she co-authored; the memo recommended that Clinton “ban late-term abortions” as long as exceptions for the health of the mother remained.  The WSJ Law Blog characterizes the memo as representing a “pragmatic calculation” that “fits in with the overall picture of Kagan as someone who generally takes liberal stands when she delves into social issues but does so with nuances that distinguish her from some on the left wing.” ABC News, the New York Times, and Medical News Today also carry the story. At Slate, Emily Bazelon addresses the memo in the context of gaining a clearer sense of Kagan’s legal views on abortion.  Relatedly, Politico examines documents in the Clinton library in which Kagan “urged President Bill Clinton to take centrist stances in several battles…when other administration officials or allies were pressing for a more aggressively liberal approach.”

At the New York Times, Adam Liptak discusses Kagan’s 1995 University of Chicago Law Review article, which he describes as a “cheeky guide to how Supreme Court confirmation hearings really work.”   At Politics Daily, columnist Andrew Cohen notes that Senator Jim Inhofe relied in part on that article in announcing that he would oppose Kagan’s confirmation.   And Clarence Page of the Chicago Tribune, writes that “today’s Elena Kagan sounds a bit more reserved about educating the public in her confirmation hearings, judging by her hearings for [Solicitor General].”  At the Washington Post, Ruth Marcus calls on Kagan to “end the farce” of nomination hearings. Further coverage can also be found at the WSJ Law Blog and at the AP.  Concurring Opinions addresses Kagan’s scholarly record as well, arguing that, although it may be “modest,” it is “simply irrelevant to the question of her qualifications to serve as Associate Justice of the Supreme Court of the United States.”

Although Kagan argued on behalf of the Obama Administration in Citizens United, reports that there are some doubts regarding Kagan’s own views on campaign finance law.  Specifically, in Politico, Kenneth Vogel examines what he describes as a “largely overlooked passage” in a 1996 article in the University of Chicago Law Review, “in which Kagan seems to diminish as anomalous the Supreme Court’s ruling in Austin v Michigan Chamber of Commerce…which allowed governments to bar corporations from paying for ads supporting or opposing candidates.”  Similarly, at the Wall Street Journal, Jess Bravin suggests that, “based on her arguments in [Citizens United] and her writings on the subject, it isn’t clear Ms. Kagan hews to [Obama’s] rationale for spending limits. And as Fox News reports, the President has sought to portray Kagan’s role in the Citizens United case as offering “much more than a glimpse” of Kagan’s legal philosophy.  (At ACS blog, Jeffrey Clements disputes Citizens United’s criticism of the Kagan nomination.)

The New Yorker’s Blake Eskin, whose elementary school teachers included Kagan’s mother, looks for clues to Kagan’s persona and jurisprudence from his experiences with Gloria Kagan.  And at The Volokh Conspiracy, Sasha Volokh offers his own impressions of Elena Kagan, whose class he took eight years ago.