In her confirmation hearing before the Senate Judiciary Committee, Elena Kagan, the nominee for solicitor general, responded to a question about the confirmation process by stating that the Senate “has to get the information that it needs” about any nominee. To Sen. Arlen Specter (R-Pa.), the answer was an open invitation to ask about the most controversial constitutional issues facing the country.
The Judiciary Committee’s ranking Republican pressed Kagan in written follow-up questions for her views about the death penalty, the influence of foreign law, abortion, same-sex marriage, and other issues. Specter even asked whether “the Constitution, properly interpreted, confers a right to a minimum level of welfare”; Kagan replied that it does not.
Kagan’s answers to Specter (pdf) and other senators appear in about 30 pages released Monday by the Senate Judiciary Committee, which is scheduled to vote Thursday on her nomination. While the Harvard law dean largely declined to specify her own views, a few answers stand out.
She says that, had she been solicitor general at the time, she would have argued in favor of the Solomon Amendment, which requires colleges and universities that receive federal funds to provide certain access to military recruiters. Kagan, in her role as a Harvard professor, argued in an amicus brief that schools could restrict access if they had policies that conflict with the military’s ban on gays and lesbians serving openly.
“I believe deeply that specific roles carry with them specific responsibilities and that the ethical performance of a role demands carrying out these responsibilities as well and completely as possible,” Kagan wrote to Specter. She added that the government had an “easy case” because “there were clearly reasonable arguments that could be made” to defend the law, as invalidated by the U.S. Court of Appeals for the 3rd Circuit. The Supreme Court overruled the 3rd Circuit 8-0 in 2006.
As an advocate before the Supreme Court, Kagan wrote that she would sometimes see a need to cite foreign law if it would help persuade certain justices who — despite some hostility to the practice — are open to such information. “When this is the case, I think the Solicitor General’s office should offer reasonable foreign law arguments to attract these Justices’ support for the positions that the office is taking,” Kagan wrote.
Widely seen as possible future nominee to the Court, Kagan also wrote that Specter’s set of questions about foreign law “appears different when viewed from the perspective of an advocate than when viewed from the perspective of a judge. At least some members of the Court find foreign law relevant in at least some contexts.”
Almost as an aside to Question 17 from Specter, Kagan mentioned that she has “discussed very generally with a person in the current Administration” the government’s position regarding the case of Ali Saleh Kahlal al-Marri. The Qatari citizen was legally in the United States when he was arrested in Illinois and has been held in a Navy brig in South Carolina as an enemy combatant since 2003. The Justice Department is due to file a brief in the Supreme Court next month in the case, and Kagan added that she has had no part in the decision-making.