Elena Kagan's Papers: No 'Smoking Guns' for Practical, Liberal Lawyer

While clerking for Supreme Court Justice Robert Jackson in 1952, the brilliant Stanford Law School graduate (and already dogmatic) William H. Rehnquist wrote and delivered to his boss a memo arguing against the integration of public schools. The memo from the earnest clerk came about during the court's early deliberations over the school desegregation cases that we now know as Brown v. Board of Education. "I realize that it is an unpopular and un-humanitarian position, for which I have been excoriated by my 'liberal' colleagues, but I think Plessy v. Ferguson (the court's 1896 segregation precedent) was right and should be re-affirmed," Rehnquist wrote to Justice Jackson, who wisely ignored the advice.

At his own confirmation hearing nearly two decades later, in 1971, Nixon administration lawyer Rehnquist told the Senate Judiciary Committee that the views expressed in the memo were those of his boss and not his own. "I fully support the legal reasoning and the rightness from the standpoint of fundamental fairness of the Brown decision," he told the panel back then. At the time, and then again in 1986 when he was elevated to the position of Chief Justice of the United States, it was the Democrats who cried foul and the Republicans who rushed forward to say that Rehnquist's views on the efficacy of segregation had "evolved" over time. Despite his odious memo, Rehnquist made it onto the court, then got promoted to its chief, and died in 2005 after a career that generated much acclaim.

The worm turns. Now along the Supreme Court bridle path comes another sharp mind, Elena Kagan, who once upon a time parlayed a brilliant career as a Harvard Law School student into a clerkship with Supreme Court Justice Thurgood Marshall. This time, Kagan (dogmatically practical or practically dogmatic) is back before the committee as a nominee to replace Justice John Paul Stevens on the court. And compared with the whopper found in Justice Jackson's "Rehnquist file," the pickings in the "Kagan" files are slim indeed. There are no repudiations of core American values; no secret screeds, no hidden odes to dark faiths. And certainly nothing as shocking or embarrassing or -- you would think -- as career-stopping, as Rehnquist's note defending a doctrine -- separate but equal -- which almost all now find repugnant.

For example, in the Marshall memos we learn that Kagan praised local officials for a school busing plan that the court later rejected. She said it was "arguably" correct that the Full, Faith and Credit clause of the Constitution precludes one state from barring recognition of a marriage duly authorized by another state (the question, like many surrounding same-sex marriage, remains open). She evidently didn't like the ruling of the 9^th U.S. Circuit Court of Appeals in a rent-control ordinance case. She sided with some criminal defendants against police and prosecutors. She endorsed a relatively broad interpretation of environmental laws.

Views like this, conservative analysts were quick to say, have given "ammunition" to Republican Judiciary Committee members as they prepare for Kagan's confirmation hearing later this month. But which ones? Sen. Orrin Hatch (R-Utah), for example, voted for Rehnquist as chief justice in 1986 despite that pesky segregation memo. So did Sen. Charles Grassley (R-Iowa) and also then-Republican Sen. Arlen Specter (D-Pa.). Once Kagan pulls a "Rehnquist" and plays the age card -- Those were my views then, Senator, but I'd like to believe I am smarter and more nuanced now, she might say -- are these old-school politicians going to argue that Rehnquist was allowed to grow up and get smart but Kagan isn't? Not in the age of YouTube they aren't.

Credibility-wise, the closer call for Republicans -- the more fertile ground, if you will -- may come from Kagan's file generated during her days as a lawyer working for the Clinton administration. On Friday, the Clinton Library released 46,700 pages of assorted documents which Kagan supporters called evidence of her pragmatism, and Kagan critics called "the decidedly clearer tones of a committed liberal." For example, in 1998, she called a proposed federal ban on physician-assisted suicide "a fairly terrible idea." When she is asked about this at the hearing, you can bet she'll answer by reminding the panel that eight years after she wrote those words, the Supreme Court blocked the Bush administration from using the Drug Enforcement Agency to thwart Oregon's physician-assisted suicide law.

Here from Sheryl Gay Stolberg of The New York Times is an excellent summary of some of the other positions evident from Kagan's time working for President Bill Clinton. "She endorsed a legal strategy aimed at avoiding a sweeping Supreme Court ruling against affirmative action. She urged the Department of Health and Human Services to be more candid about the lack of scientific evidence for medical marijuana. She expressed skepticism about a drive to bar schools from tracking students by ability. She cautioned against imposing tough marketing restrictions on the tobacco industry."

Less smoking gun and more law school lecture, Kagan's Clinton-era memos show how much she had grown up from her days clerking for Justice Marshall. Taken together, both troves surely raise legitimate questions about what Kagan thought of the law in 1987 and then again a decade later as a Clinton administration lawyer. The old documents probably even tell us a little about what she might think today. She's going to be a practical, skeptical liberal, quite like the revered man she is expected to replace on the court. If this is news to anyone, it shouldn't be; Kagan does not appear to be as dogmatically liberal as Chief Justice John Roberts or Justice Samuel Alito were dogmatically conservative when confirmed.

The real headline from the latest document dump, then, isn't that Kagan is some radical liberal but that Kagan is not nearly the sort of wild card that Rehnquist was back in 1971.

And speaking of the old chief and the new nominee, there is one Marshall memo from Kagan in particular that I found unusually profound and telling about what type of jurist the committee has endorsed before, and what it is about to consider now. It's a memo about a case that more than all the attendant noise these days delineates one side from the other in the ideological war for control of the court. It is an old case of a poor abused little boy named Joshua DeShaney.

A local social service agency had failed to protect little Joshua from his father despite clear evidence of persistent abuse. Over and over again, the boy was left unprotected with his cruel and abusive father, who had been given custody of Joshua following a divorce. When the man finally beat the little boy into a coma, the boy's mother sued, claiming that the state agency had failed to protect his substantive due process rights under the 14^th Amendment. Both of the lower courts had ruled against the family, claiming that the Supreme Court had not yet recognized such a right. It was one off the most closely watched cases of the term; one studied in law schools ever since.

Similar to Justice Harry Blackmun (like Rehnquist, a Nixon appointee), it appears that young Kagan was appalled by the circumstances of the case. The "facts of the case are horrific," Kagan wrote to Justice Marshall. "Poor Joshua!" Justice Blackmun famously wrote in his dissent in the 1987 case. The justice was forced to write a dissent because the court's majority, led by Chief Justice William Rehnquist, ruled that the negligent agency had no liability or duty to protect the child because the Constitution only protects against state action and not, as was the case with poor Joshua, a case of state inaction. The chief justice's opinion in DeShaney remains, nearly 25 years after it was issued, one of his most heavily criticized.

"Today," Justice Blackmun wrote in dissent 23 years ago, "the court purports to be the dispassionate oracle of the law, unmoved by 'natural sympathy.' But, in this pretense, the court itself retreats into a sterile formalism which prevents it from recognizing either the facts of the case before it or the legal norms that should apply to those facts. As Justice [William] Brennan demonstrates, the facts here involve not mere passivity, but active state intervention in the life of Joshua DeShaney -- intervention that triggered a fundamental duty to aid the boy once the state learned of the severe danger to which he was exposed."

As a veteran jurist at the peak of his intellectual capacity, Chief Justice Rehnquist looked away from Joshua DeShaney. In her late 20s, and without title, it looks like Kagan would have vindicated the boy's rights. That must be what President Barack Obama means when he talks about some form of judicial empathy. And it is likely why the Kagan confirmation won't be derailed very long by the release of these or any other mainstream legal documents.