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Published in Print: July 14, 2010, as High Court Nominee Vows to Shun 'Political Hat' on Bench

Kagan Vows to Shun 'Political Hat' on High Court

U.S. Supreme Court nominee Elena Kagan takes a break from testifying at her confirmation hearing before the Senate Judiciary Committee in Washington. Ms. Kagan was asked about <i>Brown</i> v. <i>Board of Education of Topeka</i>, the historic school desegregation case, during her testimony. She said,
U.S. Supreme Court nominee Elena Kagan takes a break from testifying at her confirmation hearing before the Senate Judiciary Committee in Washington. Ms. Kagan was asked about Brown v. Board of Education of Topeka, the historic school desegregation case, during her testimony. She said, "I hope and I know" that is principles are "still relevant."
—Susan Walsh/AP

Few K-12 Questions Raised in Confirmation Testimony

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U.S. Supreme Court nominee Elena Kagan vows that, if confirmed, she would bring to the job a sense of judicial modesty and respect for the law, not the “political hat” she wore while working on education and other domestic policies as a White House aide to President Bill Clinton.

“That hat has not been on for many years,” Ms. Kagan said during the Senate Judiciary Committee’s hearings late last month on her nomination to the high court.

“What do you say to people who are worried that your political positions would influence your judicial positions?” Sen. Tom Coburn, R-Okla., asked her.

“Well, I hope they would listen to this hearing and not come away with that view,” Ms. Kagan responded. “I hope they would come away with the view that it’s all about law when you put on a judge’s robe. It’s not about the politics, it’s not about the policy. It’s all about making your best judgments about what the law requires.”

If confirmed, Ms. Kagan—the U.S. solicitor general, who stepped aside upon nomination for the high court—would succeed Justice John Paul Stevens, who retired June 29 after more than 34 years on the court. After a four-day hearing in late June, the Judiciary Committee was scheduled to vote on Ms. Kagan’s nomination as early as this week. Senate Democrats are aiming for a floor vote before the August recess, and Ms. Kagan is expected to win confirmation, albeit with few Republican votes.

Harvard Days

The hearings were light on specific questions about legal issues in K-12 education, even though as the deputy director of the Domestic Policy Council in the Clinton White House from 1997 to 1999, Ms. Kagan was deeply involved in the hottest education issues of the day, such as voluntary national testing, bilingual education, affirmative action, and government aid to religious schools.

As expected, the education issue that drew the most attention was Ms. Kagan’s handling of military recruiters while dean of Harvard Law School from 2003 to 2009. Republicans hammered at what they view as her failure to faithfully observe a federal law known as the Solomon Amendment, which requires higher education institutions to give military recruiters access under threat of loss of federal funds.

Ms. Kagan testified that she believed the school was following the Solomon Amendment when the Harvard Law School at times required military recruiters to work through a student-veterans’ group rather than the school’s career-services office. That was an effort to reconcile Harvard’s broad anti-discrimination policy with the federal “don’t ask, don’t tell” law barring open military service by gays and lesbians.

“In the short period the recruiters had that access through the veterans’ organization, recruiting actually went up,” Ms. Kagan told Sen. Jeff Sessions, R-Ala., during the hearing on June 29. “But I also felt the need to protect the students meant to be protected by [Harvard’s nondiscrimination policy], the gay and lesbian students who might want to join the military.”

Sen. Sessions, the committee’s ranking Republican, sparred repeatedly with the nominee over the issue.

“In fact, you were punishing the military,” Sen. Sessions told Ms. Kagan. “I don’t deny that you value the military, but I do believe that the actions you took helped create a climate that was hostile to the military” at Harvard Law School, he said.

Thurgood Marshall’s Legacy

One of the few Supreme Court precedents on education that Ms. Kagan was asked about during the hearings was Brown v. Board of Education of Topeka, the 1954 decision that declared racially segregated schools to be unconstitutional.

Sen. Benjamin L. Cardin of Maryland was one of several Democrats on the Judiciary Committee to criticize the court under Chief Justice John G. Roberts Jr. for its alleged “activism” in casting aside precedents in pursuit of a conservative legal agenda. Sen. Cardin condemned the court’s 2007 decision in Parents Involved in Community Schools v. Seattle School District, which sharply restricted the permissible ways school districts may consider race in assigning children to schools.

But knowing that Ms. Kagan had declined to criticize any recent decision of the court she hoped to join, Sen. Cardin merely asked the nominee whether the much older Brown decision remained relevant.

“Senator, I hope and I know that the principles of Brown v. Board are still relevant today,” Ms. Kagan replied. “The idea of equality under law is a fundamental American constitutional value.”

Ms. Kagan also frequently invoked the late Justice Thurgood Marshall, for whom she clerked during the Supreme Court’s 1987-88 term.

“Justice Marshall revered the court—and for a simple reason,” Ms. Kagan said in her opening statement on June 28. “In his life, in his great struggle for racial justice, the Supreme Court stood as the part of government that was most open to every American—and that most often fulfilled our Constitution’s promise of treating all persons with equal respect, equal care, and equal attention.”

Several Republicans on the Judiciary Committee had critical words about Justice Marshall, with Sen. Sessions calling him “a well-known activist,” and Sen. Jon Kyl of Arizona saying the judicial philosophy of the first African-American justice on the high court “is not what I would consider to be mainstream.”

Such comments drew a sharp response from Democrats. Sen. Richard J. Durbin, D-Ill., referring to Mr. Marshall’s efforts as legal architect of the Brown case, said: “If that is an activist mind at work, we should be grateful as a nation that he argued before this Supreme Court, based on discrimination in this society, and changed America for the better.”

Pressed by Sen. Kyl on whether she would be a “legal progressive” in the mold of Justice Marshall, Ms. Kagan said, “If you confirm me to this position, you’ll get Justice Kagan, you won’t get Justice Marshall, and that’s an important thing.”

Ms. Kagan’s testimony gave some hints in other areas of the law important to schools.

On the First Amendment’s religion clauses, the nominee suggested that protection of the rights of religious minorities was important.

“What both [religion] clauses are designed to do is say you have full rights as an American citizen, no matter what your religion is,” Ms. Kagan said. “And to ensure that religion never acts as a function to put people at a disadvantage with respect to any of their rights.”

In the free-speech area, Ms. Kagan said she did not believe the First Amendment was meant to protect libelous, damaging speech injurious to the reputations of non-public figures, a view that could become relevant if the Supreme Court grapples with issues such as cyber-bullying.

Vol. 29, Issue 36, Pages 22-23

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