Barack Obama - Elena Kagan

Last Updated : Sep 20, 2010


After the retirement of Justice Stephens, President Obama selected Solicitor General Elena Kagan to be the next Supreme Court Justice. This nomination was controversial for the following reasons:

  • Solicitor General Kagan had no judicial experience
  • Elena Kagan's college thesis seemed to be sympathetic to socialist views
  • An editorial written in college stated that was a devoted liberal
  • She did not state that the commerce law could not be used to mandate items such as health care
  • She had expressed views that foreign law could be used as arguments in US law
  • She had expressed views that the second amendment did not protect against state-wide bans
  • She had not allowed the military on the campus of Harvard Law in protest of "Don't Ask, Don't Tell"
  • While Dean of Harvard Law, she hired Cass Sunstein as a Professor.


Timeline of Schooling and Appointments

Elena Kagan has been routinely touted as one of the top legal minds in academia. She has spent less than two years in private practice, and in the 24 years between law school and her appointment to the Supreme court she has spent 14 years in academia and 8 years in public service. In that time in academia, Elena Kagan has been a law professor at both the Chicago School of Law and Harvard Law, and has been the Dean of Harvard Law School. She has served for President Clinton as on the Domestic Policy Council, and for President Obama as Solicitor General.


College Thesis

In her senior year at Princeton, Elena Kagan wrote a thesis titled "To the Final Conflict: Socialism in New York City, 1900–1933." The paper details the actions and reasons which lead to the failure of the Socialist Party (SP) movement in the early 20th century and was seen by opponents as an obvious endorsement of socialist policies, and a lamentation of the failure of a socialist revolution in the US. Her supporters noted that she was capable of removing herself from the topic being addressed and was writing from the view of those involved with the socialist movement in New York prior to 1933.

Of the sections quoted from her these, the following were most often cited:


1981 Editorial

In a 1981 editorial, Elena Kagan wrote in the Princeton Newspaper that 

She hoped that the future would:


Statements on Commerce Clause

As part of her confirmation hearings, Elena Kagan was questioned by Senator Coburn and was asked about a hypothetical law that would allow the federal government to mandate that people eat the required number of fruits and vegetables. The question was a substitute for the mandate in the 2009 health care reform legislation which required all people to purchase health care legislation. Solicitor General Kagan stated that the law was "dumb," but did not condemn the law and did not note that the federal government did not have such authority.


Precedence versus Original Intent / Foreign Law

During her confirmation, Justice Kagan was questioned about her views on precedence versus original intent and on the role of foreign law in US law. She was questioned by Senator Coburn and seemed to state that decisions made which establish precedence would override the original intent of the law - meaning that if a court incorrectly decided a ruling, that ruling could still be cited as grounds for a later ruling even if it went against the original intent of those who wrote the law.



Views on the Second Amendment

During the confirmation process, Elena Kagan's views on the second amendment were questioned due to her actions concerning two pivotal second amendment cases, and her answers to questions as she went through the process to become Solicitor General.

The DC Gun Ban

In 1987, the supreme court was asked to consider the constitutionality of the DC gun ban in Sandidge v. United States. The question at hand was whether the right to own a gun was one each person possessed, or whether the state could ban gun ownership but not the federal government. At the time, Elena Kagan was clerking for Justice Thurgood Marshall. She wrote a memo to Justice Marshall stating that she was "not sympathetic" to the claim that "the District of Columbia's firearms statutes violate [an individual's] constitutional right to 'keep and bear Arms.' "

In 2008, the Supreme Court ruled on the DC gun ban in District of Columbia v. Heller. The court decided that the ban was unconstitutional. Dean Kagan was questioned on this case while being confirmed by the Senate by Senator Grassley.

She was also asked if she believed Heller was "rightly decided," she answered:


Background Checks

One of the key second amendment issues addressed by the Clinton White House was the response to a Supreme Court decision that the federal government could not force local or state police to conduct background checks on gun purchasers. In documents released by the Obama administration in preparation for her hearing, Elena Kagan appears to support the background checks.


Questions During Her Confirmations

Elena Kagan was questioned about the second amendment when being nominated for the Solicitor General position. Her responses to those questions indicated that she believed the right to own a gun to be "settled law." This term caused concern from the NRA and other second amendment supporters because Justice Sotomayor had used the same phrase in her confirmation process and yet voted against such a position only a few months after confirmation.

When asked if she would "give weight to other nations’ restrictions on gun rights when interpreting the Second Amendment," she replied:

When asked her "personal opinion of the rights afforded by the Second Amendment," she responded:

When asked if she will "commit to protect an individual’s right to possess a firearm," she answered:


Treatment of Military at Harvard

History of Military Ban

In 1979, Harvard Law school asked all employers to sign a statement claiming that they did not discriminate against possible employees on the basis of race, gender, or sexual orientation. Since the military had a ban on gays serving, they were not allowed to recruit on campus. However, the military still recruited at Harvard Law through the Harvard Law School Veterans Association.

In 1994, Rep. Gerald Solomon of New York was able to pass an amendment which prohibited federal funding from going to schools that prohibited military recruitment on campus. By 2002, the laws had begun to have a real effect on federal funding and Harvard Law began to allow the military to recruit on campus while a group of law schools known as the Forum for Academic and Institutional Rights (FAIR) were fighting the laws in court. This was the situation in place when Elena Kagan took over as Dean of Harvard Law in 2003.

In November of 2004, the Third Circuit ruled that "the Solomon Amendment cannot condition federal funding on law schools' compliance with it". Given this ruling, Dean Kagan reinstated the ban on recruiting by the military to what it had been prior to the enforcement of the Solomon amendment.

As the case was appealed to the Supreme Court, the government threatened to withhold funding to the school, and Dean Kagan relented and allowed the military back on campus after only 1 semester. In March of 2006, the Supreme Court ruled unanimously that the Solomon Amendment was constitutional in Rumsfeld v. FAIR.

Elena Kagan's Role

In addition to reinstating the ban, Dean Kagan signed on to a 2004 Amicus brief to the Third Circuit Court on the side of FAIR stating that the Solomon amendment should not apply to schools that enforce the ban on all employers equally. She also signed on to a 2006 Amicus brief for the Supreme Court case on the side of FAIR.

When she took over as Dean of Harvard Law, Elena Kagan wrote a letter to the school community stating the following:

Controversy Over Her Opinions

The main question being asked about Dean Kagan's actions were whether she was truly enforcing a policy of equality concerning the treatment of sexual orientation, or was she simply using the "Don't Ask, Don't Tell" policy as a tool to punish the military. Those who believe that Dean Kagan is simply anti-military and was only using the issue of gay rights as a shield and club cite the following facts:

  • The military does not decide policy. The "Don't Ask, Don't Tell" policy was a product of Congress and was forced upon the military by Congress and the President, and not a matter decided by the military. Punishing the military for actions taken by congress is not logical. 
  • The "Don't Ask, Don't Tell policy was signed into law in 1993 by President Clinton. This was prior to Elena Kagan's service under President Clinton as an advisor. If Elena Kagan was opposed to such policy, it did not preclude her from serving under the man that enacted the policy.
  • Despite claiming that the ban on the military is due the military's treatment of gays, Harvard Law School has open involvement with groups that exhibit far more harsh treatment of gays and lesbians. 
    • In December of 2005, Saudi Prince Alwaleed bin Talal, donated $20 Million dollars to Harvard Law School. Saudi Arabia has a death penalty for homosexuals.
    • Three chairs at Harvard Law School are now endowed by Saudi Arabia, including one dedicated to the study of Islamic sharia law.

Many of these points were addressed by Captain Pete Hegseth, a veteran who spoke at Elena Kagan's hearings for the Supreme Court.


Hiring of Cass Sunstein

After becoming the Dean of Harvard Law school, Elena Kagan hired Cass Sunstein as a professor and referred to him as follows:

Cass Sunstein has since been appointed as President Obama's Information Czar.


[1] Website: National Review Online Article: Young Kaganís Thesis on Socialism Author: Daniel Foster Accessed on: 09/11/2010

[2] Website: BlogSpot Article: Elena Kagan's Thesis in 90 Seconds: Radical. Socialist. Marxist Author: Doug Ross Accessed on: 09/11/2010

[3] Website: Left Coast Rebel Article: Elena Kagan Socialist College Thesis Unveiled Author: Left Coast Rebel Accessed on: 09/11/2010

[4] Website: The Daily Princeton Article: Reserved passion: Kagan í81 Author: AMEENA SCHELLING Accessed on: 09/11/2010

[5] Website: Article: NA Author: David Codrea Accessed on: 09/11/2010

[6] Website: The Washington Post Article: Papers covering Elena Kagan's time as Clinton adviser released Author: Robert Barnes and Amy Goldstein Accessed on: 09/20/2010

[7] Website: CampusProgress Article: What Elena Kaganís Role in the Harvard Military Recruitment Ban Really Says About Her Author: Dylan Matthews Accessed on: 09/20/2010

[8] Website: Politifact Article: Elena Kagan and the military recruiters at Harvard Law School Author: Robert Farley, Angie Drobnic Holan Accessed on: 09/20/2010

[9] Website: Article: Kagan, Harvard, the US Military, and the Saudis Author: Newt Gingrich Accessed on: 09/20/2010

[10] Website: Discover the Networks Article: Elena Kagan Author: NA Accessed on: 09/20/2010

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