Monday, May 10, 2010

Elena Kagan Nominated By Obama To Supreme Court [UPDATED]

The White House this morning announced President Barack Obama's nomination of Solicitor General and former Harvard Law School Dean Elena Kagan to the U.S. Supreme Court to replace retiring Associate Justice John Paul Stevens. (Full text of remarks by President and Kagan.) The New York Times today has an extensive background article on Kagan along with the full text of her confirmation hearings for Solicitor General. If confirmed, she will become the third Jewish Justice (along with Justices Ginsburg and Breyer). This will mark the first time that three members of the Jewish faith sit on the Supreme Court at the same time. Also, with Justice Stevens retirement, it will mark the first time that the high court has had no Protestant justices. (See prior posting.) One of the anecdotes recounted by the Times is Kagan's clash, as a 12 or 13 year old, with her rabbi over what the content of her bat mitzvah ceremony would be.

Much of Kagan's published scholarly writings (full list at pp. 52-53 of Hearings) focus on the constitutional issues surrounding the regulation of hate speech. These include: The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion, 1992 Supreme Court Review 29 [Hein-on-Line link]; Regulation of Hate Speech and Pornography After R.A.V., 60 Univ. Chi. L. Rev. 873 (1993) [LEXIS link]; When A Speech Code Is A Speech Code: The Stanford Policy and the Theory of Incidental Restraints, 29 UC Davis L. Rev. 957 (1996); and Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413 (1996) [LEXIS link].

During Kagan's confirmation hearings for Solicitor General, she was questioned (Hearings at pp. 97-98) about a memo she wrote as a law clerk for Supreme Court Justice Thurgood Marshall suggesting that government funding through the Adolescent Family Life Act for faith-based social service organizations to discourage teen pregnancy was improper because inevitably religious teaching would be injected into the organizations' social services. At her hearings, she rejected her earlier position, saying in written answers that her earlier view was "deeply mistaken" and that she now believes that it is incorrect to presume that a religious organization will use grant funds in an impermissible way to further religion.