Don't ask, don't tell

On the issues: Obama's Supreme Court nominee

Tuesday, May 11, 2010

Elena Kagan is known to be circumspect in her personal views and has a limited public record on some of the hot-button social issues that have dominated past confirmation hearings.

Conservatives have said the most controversial issue in her past was her belief that the military's "don't ask, don't tell" policy meant Harvard Law School would be violating its anti-discrimination policy if it helped the military recruit on campus.

In a 1993 article in the University of Chicago Law Review, Kagan wrote: "I take it as a given that we live in a society marred by racial and gender inequality, that certain forms of speech perpetuate and promote this inequality, and that the uncoerced disappearance of such speech would be cause for great elation. I do not take it as a given that all governmental efforts to regulate such speech thus accord with the Constitution."

In her Q&A for solicitor general, Kagan said a judge should "try to the greatest extent possible to separate constitutional interpretation from his or her own values and beliefs."

After District of Columbia v. Heller, Kagan said "there is no question that the Second Amendment guarantees individuals the right to keep and bear arms and that this right, like others in the Constitution, provides strong although not unlimited protection against governmental regulation."

During her confirmation hearing, Kagan said she did not think that detainees held in Afghanistan had the right to due process, as the Supreme Court has ruled for those at the U.S. military prison at Guantanamo Bay, Cuba.

Kagan said she did not believe there was a constitutional right to same-sex marriage, but it was unclear whether she was expressing her own view or the current state of the law.

In a 1993 article, Kagan concluded that Stanford University misjudged the political and legal environment in instituting a policy that barred fighting words based on sex, race and other characteristics.

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