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Kagan releases cartons of documents to Senate Judiciary Committee

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By Amy Goldstein and Robert Barnes
Tuesday, May 18, 2010; 11:08 PM

As an Oxford University graduate student a quarter-century ago, Supreme Court nominee Elena Kagan wrote, "No court should make or justify its decisions solely by reference to the demands of social justice," contending that rulings "should appeal no less to our intellectual than to our ethical sense."

Her masters thesis, an examination of a slice of Supreme Court history submitted a week before her 23rd birthday, was critical of the court in a liberal era under Chief Justice Earl Warren. During that time, she wrote, the court expanded constitutional rights relating to criminal evidence without providing "a coherent theory" to support its work, and left its precedents vulnerable to being "emasculated" later by more conservative members.

The thesis is in a huge compilation of speeches, articles and documents Kagan released to the Senate Judiciary Committee on Tuesday, largely in response to questions the panel posed in preparation for her confirmation hearings.

The material showed Kagan to be a debt-free millionaire and indicated that she would need to recuse herself in at least six of the 18 cases the Supreme Court has already agreed to hear next fall. "I would recuse in all matters for which I was counsel of record" as solicitor general, Kagan wrote to the committee. "I would also consult with my colleagues in any case where recusal might be advisable."

It is impossible to predict how many of the approximately 80 cases the court will eventually accept for its next term that Kagan would have to sit out. It is now considering whether to accept at least eight cases in which the solicitor general's office has expressed an opinion. There are scores of cases in lower courts in which the government is a party, but few make their way to the Supreme Court.

As is the modern custom of vetting potential Supreme Court justices, the documents supplied to the committee range from newspaper articles she wrote as a college student to handwritten remarks prepared last month to praise her potential colleague, Justice Anthony M. Kennedy.

In her notes for those remarks -- three weeks after Justice John Paul Stevens announced his retirement and six weeks after the White House had contacted her about becoming a possible nominee, the documents show -- she crossed out a riff she had written on the qualifications the president might seek in naming someone to the court.

Kagan had prepared much of the same material for the Senate committee last year, when she went through the confirmation process for solicitor general. As a result, she filed answers to the questionnaire in five days, which the White House touted as a record -- four days less than Justice Sonia Sotomayor. Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) said the documents "put us well down the road toward our preparation for her confirmation hearing."

Republican senators, however, pointed out that an estimated 160,000 pages, from her four years in the 1990s as a domestic policy adviser and associate White House counsel for President Bill Clinton, have not yet been released by the Clinton Presidential Library.

Sen. John Cornyn (R-Tex.) said the committee should not hold hearings until senators have a chance to read all the papers. He said Kagan told him in a private meeting Tuesday that the library's holdings will reveal much "about her views, about her attitudes and her activities while serving at the White House."

In the newly released documents, Kagan reported her net worth at nearly $1.8 million, up from the slightly more than $1 million she reported last year. The change apparently is because she sold her home in Cambridge, Mass. She no longer lists a mortgage as a liability -- or any other debt -- and reported available cash as nearly $740,000.

The documents include the thesis Kagan wrote in 1983 during two years she spent at Oxford University between graduating from Princeton and enrolling at Harvard Law School. Her subject was the Supreme Court's treatment of the exclusionary rule under the Fourth Amendment, a rule that requires courts to forbid the use of evidence seized through unconstitutional means. In criticizing the Warren court of the 1950s and 1960s, she wrote that the justices who expanded the application of the rule during that time "unwittingly did almost everything in their power to assure the rule's eventual demise" because of "their total concentration upon end results."

In her thesis, Kagan wrote: "U.S. Supreme Court Justices live in the knowledge that they have the authority either to command or to block great social, political and economic change. At times, the temptation to wield this power becomes irresistible. The justices, at such times, will attempt to steer the law in order to achieve certain ends and advance certain values. In following this path, the justices are likely to forget both that they are judges and that their Court is a court."

She argued that the Warren court extended the exclusionary rule from federal courts to state courts without providing "a stabled, principled underpinning." As a result, she wrote, the expansive interpretation was vulnerable to revisions by the more conservative court that came next, under Chief Justice Warren E. Burger. "Because the Warren Court did not adequately support the exclusionary rule," she wrote in the thesis's final pages, "the Burger Court has been able slowly to strangle it."

Staff writer Alec MacGillis contributed to this report.


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