Elena Kagan is known to be circumspect with her personal views and has a limited public record on some of the hot-button social issues that have dominated past confirmation hearings.
Don't ask don't tell
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 Schoool 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."
Supreme Court confirmation hearings
In a 1995 book review, Kagan encouraged senators to be more firm with those who wanted a spot on the court. However, Republican senators at her own confirmation for solicitor general said Kagan did not live up to her own standards. "I am . . . less convinced than I was in 1995 that substantive discussions of legal issues and views, in the context of nomination hearings, provide the great public benefits I suggested," she said during that hearing.
Impact of personal values
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 agreed with Republican senators that the country was at war and said she did not believe detainees held in Afghanistan had the right to due process, as the Supreme Court has ruled for those at Guantanamo Bay.
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 simply 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 barring fighting words based on gender, race and other characteristics.
SOURCE: Staff reports | Wilson Andrews, Garance Franke Ruta, Karen Yourish - The Washington Post, May 10, 2010.