Paul Helmke, Brady Campaign:
"What's in her mind and her heart are far more important than what's on her back, neck, or her ring finger.
So far, I like what I've learned of Kagan's mind and heart from her past writings and job experiences. In a way, they mimic her style of dress -- responsible, sensible, and utilitarian -- especially when it comes to her perspective on gun laws.
What we know is that Kagan, as a lawyer during the Clinton Administration, wrote a 1997 memo that led to an executive order banning dozens of imported semi-automatic weapons -- similar to the types of weapons that were used recently to shoot 10 D. C. youths in a matter of seconds. Kagan's decision made sense then, and it would make sense now.
We also know that Kagan spent four years working for President Clinton as both a White House lawyer and senior domestic policy advisor. Those were the years that ultimately saw Clinton support, sign, and defend the ground-breaking and highly sensible Brady Law, which requires background checks on gun purchases made from federally licensed dealers. Over 1.8 million "prohibited purchasers" have been stopped from buying guns because of this law.
Additionally, while working for President Clinton, Kagan apparently was in the loop when the Clinton Administration fashioned reasonable steps to require child-safety trigger locks on handguns and when cities, such as Chicago, brought lawsuits against gun makers. American children - more than any other children in the developed world - have suffered inordinate amounts of injuries and death due to gun manufacturers' refusals to spend, in some cases, only a few more pennies, to make their products safer.
Meanwhile, Congress' inexcusable exemption of gun makers from consumer product safety regulations and protection from legal liability have made it nearly impossible for gun violence victims to hold gun makers responsible for the foreseeable, and preventable, tragedies caused by their lethal weapons.
We've learned, as well, that in 1987, during her tenure as a clerk with U.S. Supreme Court Justice Thurgood Marshall, she drafted a memo urging that the Court not hear the appeal of a D.C. man convicted of carrying a pistol without a license, possessing an unlicensed gun, and unlawfully possessing ammunition. When Kagan noted to Marshall that she was "not sympathetic" to the man's argument that the District's firearms laws violated the Second Amendment, she was standing on solid legal ground. Until the 2008 Heller decision, Supreme Court precedent limited the "right to keep and bear arms" to service in "a well-regulated militia."
In answers to recent questions regarding the Second Amendment and Heller, Kagan has said she considers the new individual right settled law. But even now, firearms registration laws and prohibitions on carrying guns in public remain constitutional, as they do not infringe on the right of law-abiding, responsible citizens to possess guns in the home for self-defense, which is the right recognized in Heller. The Court was emphatic in Heller that other strong gun regulations, including restrictions on who can buy guns and where guns are taken, are "presumptively lawful."
It has also been reported that Kagan, a Harvard-educated lawyer, who rose to become dean of Harvard Law School, left a legacy of being able to bring feuding faculty factions together to make progress on all sorts of issues.
Just weeks into her new post, Kagan exhibited her willingness to listen to a variety of perspectives on gun policy by moderating a debate hosted by the law school's target shooting club between gun-control advocates and 2nd Amendment gun rights proponents.
In the coming days, as reporters and legal scholars continue to sift through the 46,000 Kagan documents just released from the Clinton Library, we'll learn more about her take on the law. Later this month, when Senate hearings start on June 28, we'll hear her speak about her views.
In the meantime, it seems clear that, like her choice of fashion, Kagan hasn't pushed the gun law envelope to an eye-popping, jaw-dropping extreme. She appears to have a healthy respect for American judicial precedent and the recognition that reasonable limits on access to firearms can help save lives. The American public can be thankful for that. I certainly am."
start: "Drab... Dowdy and dull... Frumpiness of the sort that federal Washington can't resist." These are some of the harsh observations of a Washington Post style writer about the fashion preferences of Elena Kagan, President Obama's nominee to the Supreme Court.
Okay, maybe Kagan is no Lady Gaga when it comes to fashion. But for most Americans, the way Kagan, who is Obama's Solicitor General, outfits herself is just fine. She's not competing to be America's Next Top Model.
Kagan's Consistent Liberal Voice
by Carrie Severino
Last Friday afternoon the first batch of documents from the Clinton Library were released, giving the public the first insights into Elena Kagan's work for the Clinton White House.
We made a preliminary review of the documents available Friday evening, but here is an update after a few more days of reading through the nearly 47,000 pages. There were some interesting items that were not uncovered in the original rush to review so many boxes of documents.
This underlines the challenges facing senators who are struggling to prepare for a hearing scheduled for Kagan on June 28, while more than two-thirds of the documents have not yet been released.
Overall these documents show Kagan as a consistent liberal on every policy issue, from abortion to gun rights and removing religious language from the public square.
She sided with the big unions, womens' groups, and NARAL. She also expressed opinions on some major court cases, advocating a broad interpretation of the commerce clause that the Supreme Court said would "obliterate the Constitution’s distinction between national and local authority," and helping pass the McCain-Feingold Campaign Finance Reform Act, parts of which have since been held unconstitutional.
Included are the issues below dealing with fundamental constitutional questions that may come before the court:
1. Second Amendment: In a memo co-signed with Bruce Reed to President Clinton, Elena Kagan stated that "We will give you [President Clinton] a separate memo early this week outlining an aggressive strategy for administration officials and Democratic members of Congress to press for quick passage of our gun control proposals.”
2. Abortion: Kagan helped President Clinton articulate his position against the Hyde Amendment and in favor of federal funding of abortion. She corresponded with the legal director of NARAL regarding trying to slow the progress of passage of the Child Custody Protection Act which would have made it a federal offense to transport a minor across a state line for an abortion to avoid parental consent laws.
On the other side of the issue, Kagan recommended for political reasons that President Clinton sign a partial birth abortion ban with former Sen. Tom Daschle's amendment for a health exception, despite his own Department of Justice advising him that such a law would be unconstitutional and his administration’s general opposition of the law. Of course the breadth of the term "health" as legally interpreted is sufficient to make any ban on partial birth abortion practically meaningless.
3. Racial preferences: In two memos Kagan expressed her preference for litigation and policy to preserve affirmative action in higher education and for continuing other "narrowly tailored" affirmative action programs. She also agreed with Solicitor General Walter Dellinger that Title VII of the Civil Rights Act allows non-remedial discrimination in employment decisions, i.e., giving preferences to certain races even if they had not previously suffered discrimination in that position. She called this “exactly the right position—as a legal matter, as a policy matter, and as a political matter.”
4. Religious language: Kagan was asked to clean up a video-taped speech given by the President commemorating the 25th anniversary of Roe v. Wade. She appears to have recommended deleting the "God bless you" salutation at the end of the speech.
5. Commerce Clause: A joint memo from Kagan and Bruce Reed recommended the filing a petition for certiorari challenging the 4th Circuit decision in United States v. Morrison invalidating the Violence Against Women Act under the Commerce Clause. Kagan expressed dismay that the decision would mean that victims would only be able to sue attackers in state courts, using state law. The Supreme Court did take the case, and upheld the 4th Circuit.
Cartoon by Brett Noel
Sotomayor’s position on SAF’s McDonald case will tell much about nominee Kagan
June 10, 11:07 AMSeattle Gun Rights Examiner
Much is now being written about Barack Obama’s second Supreme Court nominee, Elena Kagan, and expect even more prior to the commencement of her Senate confirmation hearing on June 28.
A clear profile of Kagan is now surfacing, thanks to extensive coverage of Kagan’s life and career by the Washington Post, and an editorial in the June 9 Washington Times. But this may be the tip of the proverbial iceberg, as information about her Second Amendment position has already been revealed, as this column noted here earlier this week. She also talks about herself in this White House video:
Kagan’s confirmation could have critical importance to Washington State, for any number of reasons, not the least of which is our own State Supreme Court's ruling earlier this year that the Second Amendment does apply to state and local governments, as this column reported here.
One year ago, this column took issue with the Second Amendment positions of then-Judge Sonia Sotomayor, and those concerns remain. Within days, and certainly by the end of this month, Sotomayor's attitude about gun rights will become evident, whether she joins in an opinion that strikes down the Chicago handgun ban – the anticipated outcome of the Second Amendment Foundation’s lawsuit – or signs onto an opinion that supports the ban. McDonald, which was argued in March, will be her first opportunity to show her true colors.
Ms. Kagan's defenders acknowledge her liberal political views but claim that as a judge, the former Harvard Law School dean will somehow manage to separate her judgments from her political opinions. The hitch is that her legal views correspond with her political views. When Ms. Kagan clerked for Justice Thurgood Marshall, she wrote, "I'm not sympathetic" to the claim that "the District of Columbia's firearms statutes violate [an individual's] constitutional right to 'keep and bear Arms.' "--Washington Times
Recall that this column reported opposition to the Sotomayor nomination, from former National Rifle Association Presidents Sandra Froman and Robert Corbin and many of their colleagues, and separately from NRA Executive Vice President Wayne LaPierre and Christopher Cox, head of NRA’s Institute for Legislative Action.
Recall how Sotomayor declined to explain how she might approach Second Amendment incorporation, and how she remained evasive on critical gun rights issues, including self-defense, during questioning by the Senate Judiciary Committee; where she lands on McDonald will define where she really stands on the Second Amendment.
Her friends are elite lawyers of a certain set or Democratic operatives with staying power. She cultivates their company, holds their confidences, gives them the best presents and solicits their ideas...Washington Post
Her performance, combined with other warning flares sent by Obama with some of his other administration choices, should clearly signal the kind of judicial nominee that this president would send to Capitol Hill. As we say out here in the settlements, west of the Mississippi, “She ain’t from around here” and her leanings on the district court level so far suggests she certainly is not our friend. (Perhaps to punctuate how the firearms community looked at Sotomayor, on the day she was confirmed, the Second Amendment Foundation filed a lawsuit against the District of Columbia over its gun regulations.)
The portrait of Kagan as presented by the Washington Post is one of a woman with few outside interests and a rather narrow life experience. She has hobnobbed with liberal elitists, and spent her entire professional career in a somewhat confined environment. This nomination may seem “sewed up” to the extent that Robert W. Benson, emeritus professor of law at the Loyala Law School, has publicly announced he will forego watching the hearings.
A native of New York, Kagan has worked her entire life along Pennsylvania Avenue or near Harvard Square and Hyde Park.
However, that may not be the case, provided Republican members of the Senate panel show some backbone; something that seemed painfully absent last year from South Carolina’s Lindsay Graham, who was all-too-collegial with Sotomayor.
A Kagan confirmation will not change the makeup of the high court, but as many others are pointing out, what happens if one of the four court conservatives should be incapacitated or die? What becomes of the court makeup if swing-voting Justice Anthony Kennedy should leave the bench during Obama’s reign? There should be little doubt that this president would give us more liberal activist judges, the kind who might rule that the parks gun ban in Seattle is constitutional, instead of a judge who rules that the ban is wholly illegal under state statute, and that the right to carry is constitutionally protected.
Kagan can say anything during the hearings, but most likely like Sotomayor, she will talk a lot but actually say very little. Where an Associate Justice Kagan would clearly speak is from the Supreme Court bench. Can the Second Amendment be placed at such risk?
The Bill of Rights is an all-or-nothing package. You embrace all of its rights, or you really believe in none of them.-Seattle Gun Rights Examiner, July 17, 2009
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