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Senators will have less background on Kagan to help make Supreme Court decision

By Robert Barnes
Wednesday, May 26, 2010; A03

Some of Supreme Court nominee Elena Kagan's detractors found a passage in her writings that they say endorses the view that a judge's work is outcome-based, influenced by personal opinion and experience.

Her supporters counter by pointing to a piece that details Kagan's strong criticism of judicial decisions that are reached without the proper grounding in law and precedent.

Those still trying to make up their minds about President Obama's choice for the high court will find fodder for both positions in the same document, her thesis as a 22-year-old student at Oxford.

Such is the process as senators, interest groups and the media try to piece together a portrait of the solicitor general's views from scraps of speeches, scholarly articles and actions as a member of two Democratic administrations.

Because Kagan, 50, has never been a judge and has not published a major work since 2001, her record lacks the "paper trail" that other nominees in recent years have had. But it also seems at times contradictory, or at least ambiguous.

For instance, Obama praised Kagan in her role as solicitor general for defending the federal law, struck down by the Supreme Court as unconstitutional, that greatly restricted corporate spending on political campaigns. But experts poring over Kagan's writings on the First Amendment say they raise questions about whether she might agree with conservative critics of the law she was defending.

And civil libertarians are concerned about Kagan's writings on executive power and her testimony about the government's ability to hold terrorism suspects indefinitely. They might be heartened by the fact that she signed a 2005 letter to senators that said only "dictatorships" strip courts of the power to review claims of people the government has detained.

The vast majority of the thousands of pages Kagan turned over to the Senate Judiciary Committee last week had been handed in last year, when the Senate confirmed her as the government's chief appellate lawyer and representative before the Supreme Court. So anything new -- such as her thesis, written before she started law school -- is now being searched for clues.

There was something for both sides. Because judges are also "participants in American life," Kagan wrote, they "will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends. Such activity is not necessarily wrong or invalid."

On the other hand, she quickly added, "no court should make or justify its decisions solely by reference to the demands of social justice. . . . Judicial decisions must be based, above all else, on law and reason."

Eugene Volokh, a law professor at the University of California at Los Angeles, said it is not surprising that those interested in the court want to know as much as they can about the nominees. The legal blog he oversees, which draws many conservative and libertarian commentators, churns with analysis of the Kagan nomination.

But Volokh said people have been "spoiled" by recent appointments. Many of those justices came with long judicial records; others had spent their lives in scholarly research or activism. Antonin Scalia and Ruth Bader Ginsburg, for instance, "had paper trails that tell you exactly where they'll be" as justices, he said.

But neither a long list of judicial opinions nor even a clear sense of a nominee's leanings has ever been viewed "as historical requirements of the job," he said.

Jeffrey Fisher, who co-directs the Supreme Court clinic at Stanford Law School, said no nominee should be without past positions that seem at times to point in different directions. "In terms of searching for somebody, if you find contradictory things, that should be reassuring, not troubling," he said. That means a judge would approach each case with an open mind, he added.

Justice John Paul Stevens, who is Fisher's former boss and the man Kagan would replace, said this month that it is wrong for senators vetting nominees to press them on issues that might come before the court and added that doing so is not likely to elicit accurate information anyway. "It's often that you don't really know" how you'll vote until the case has been briefed and argued, Stevens said.

But senators need some way to scrutinize someone who could receive a lifetime appointment to the nation's highest court.

As Kagan made the customary rounds of Senate visits last week, Republicans said her confirmation hearings, scheduled to begin June 28, will be critical. They said they will get a better sense of the former Harvard Law School dean when they receive documents detailing the four years she spent as a lawyer and policy adviser in the Clinton administration.

But the White House is already preparing an asterisk for that review as well. Officials point to testimony that Chief Justice John G. Roberts Jr. gave at his confirmation hearings. When asked about memos he wrote as a lawyer in the Reagan Justice Department, Roberts said he would be confronting issues on the Supreme Court as a judge, "not as a staff attorney for an administration with a position."

Volokh said senators and the public already have the biggest clue about where Kagan stands.

"My assumption is we should expect the person nominating them to be pretty sure where they are," he said. "That means I think she'll be pretty much where Obama is."

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