Stealth Candidate Kagan Outed?

Much has been made of the fact that Obama's Supreme Court nominee Elena Kagan has had little to no "paper trail" to determine her philosophical bent. Parts of what trail there are may have been uncovered.

...in documents obtained by CBS News, Kagan--while working as a law clerk to the late Justice Thurgood Marshall - made her positions clear on some of the nation's most contentious social issues. The documents, buried in Marshall's papers in the Library of Congress, show Kagan standing shoulder-to-shoulder with the liberal left, at a time when the Rehnquist Supreme Court was moving to the conservative right.

In addition to this, Kagan has papers in the Clinton Presidential library that could be released as early as today.

The Marshall documents are legal memos summarizing cases the Court had been asked to consider. They cover the spectrum of hot-button social issues: abortion, civil rights, gun rights, prisoners' rights and the constitutional underpinnings for recognizing gay marriage.

On abortion, Kagan wrote a memo in a case involving a prisoner who wanted the state to pay for her to have the procedure. Kagan expressed concern to Marshall that the conservative-leaning Court would use the case to rule against the woman--and possibly undo precedents protecting a woman's right to abortion.

"This case is likely to become the vehicle that this court uses to create some very bad law on abortion and/or prisoners' rights," she wrote in the 1988 memo.

She also expressed strong liberal views in a desegregation case. Summarizing a challenge to a voluntary school desegregation program, Kagan called the program "amazingly sensible." She told Marshall that state court decisions that upheld the plan recognized the "good sense and fair-mindedness" of local efforts.

"Let's hope this Court takes note of the same," she wrote in the 1987 memo. Just three years ago, the Supreme Court struck down a nearly identical plan.

-Jan Crawford

"Amazingly sensible." Is that what we really want in a Supreme Court justice? One who relies on her own sense of sensibility? Or one who determines whether or not the law adheres to the language of the Constitution?

BTW, all you who came here for some salacious tidbit about her sexual orientation? I could give a rat's patoot what that is. The question is: Will she uphold the Constitution or substitute some other standard to achieve some social result?


H/T John Lott
Cross posted at Left Coast Rebel