President Obama's nomination for the Supreme Court has left law professors and political advocacy groups a thin record to mull over, especially on religious liberty and abortion cases.
When she served in President Bill Clinton's administration, Kagan urged Clinton to support a ban on late-term abortions, according to a memo obtained by the Associated Press. She also recommended that Clinton support legislation banning human cloning. Clinton supported both proposals, which failed to pass in Congress.
"It's political pragmatism," said David Smolin, a law professor at Samford University's Cumberland School of Law. "To me it says more about her as somebody who prudentially tries to get what's possible rather than holding out for the ideal position. If asked, she would probably say it was arguably compatible with Roe v. Wade and does not indicate one way or another her own view of Roe v. Wade."
Pro-life organizations have expressed concern about Kagan's nomination while pro-choice groups have lauded the decision.
The National Right to Life Committee (NRLC) acknowledged there is little on public record about Kagan's specific views on the Supreme Court's past abortion-related rulings. However, the NRLC focused on an essay Kagan wrote lamenting the Republican wins in 1980, in which she references the "Moral Majority," an organization founded by the late megachurch pastor Jerry Falwell that has since dissolved.
"Even after the returns came in, I found it hard to conceive of the victories of these anonymous but Moral Majority-backed opponents of Senators Church, McGovern, Bayh and Culver, these avengers of 'innocent life' and the B-1 Bomber, these beneficiaries of a general turn to the right and a profound disorganization on the left," Kagan wrote for the Daily Princetonian. NRLC Legislative Director Douglas Johnson said, "Was Ms. Kagan so dismissive of the belief that unborn children are members of the human family that she felt it necessary to put the term innocent life in quote marks, or does she have another explanation?"
Most recently, Kagan argued in favor of government efforts to protect a cross on federal land in California's Mojave Desert, where the Supreme Court eventually ruled in favor of the cross. As solicitor general, though, her defense of the case does not necessarily shed light on her personal views.
If Kagan is confirmed to replace Justice John Paul Stevens, there would be no Protestants on the high court. Smolin says her Jewish background offers little indication about how she could rule on religious liberty cases. However, "she might provide more protection for religious minorities, and generally for religious liberty, than had Justice Stevens," he said.
Kagan wrote a memo in 1987 while clerking under former Supreme Court Justice Thurgood Marshall, suggesting that providing certain funds to religious groups under the law would violate the Establishment Clause.
"It would be difficult for any religious organization to participate in such projects without injecting some kind of religious teaching," Kagan wrote about the Adolescent Family Life Act. " … when the government funding is to be used for projects so close to the central concerns of religion, all religious organizations should be off limits."
However, during her Senate confirmation hearing for solicitor general last year, Kagan said she "was deeply mistaken."
"I first looked at that memo, thought about [that] memo for the first time in 20 years I suppose just a couple of days ago when it was quoted on a blog post. And I looked at it and I -- I thought, 'That is the dumbest thing I've ever heard,'" she said last year.
Some conservative advocacy groups have focused on issues of sexuality. Bryan Fischer of the American Family Association says that "no lesbian is qualified to sit on the Supreme Court."
"The White House has flatly stated that she is not gay, which could prove a tad embarrassing if the open secret of her lesbianism is confirmed at some point," he wrote. "If she's a lesbian, it is going to become public knowledge, and the White House will simply have some more egg on its already yoke-splattered [sic] face."
As the former dean of Harvard Law School, Kagan refused to allow military recruiters at the school because of the military's Don't Ask Don't Tell policy.
Kagan has publicly criticized the policy that prevents people who are openly gay from serving in the military. "I believe the military's discriminatory employment policy is deeply wrong—both unwise and unjust," she wrote in a 2005 e-mail to Harvard students.
"I think that reflects her institutional situation more than it tells about her individual views," said Douglas Laycock, a law professor who studies religious liberty at the University of Michigan Law School. "Trying to guess what her votes are going to be is a fool's errand."
As dean of Harvard Law, she recruited notable conservative scholars and has been painted as a consensus builder.
"You're finding lots of attacks from both sides," Laycock said. "The Right knows they can't defeat this nomination. The Left is disappointed because they didn't get a bookend for Scalia being on the hard right."
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