Washington D.C. Employment Law Update
Obama Nominates Elena Kagan to Supreme Court
President Obama has named U.S. Solicitor General Elena Kagan as his pick to replace retiring Justice John Paul Stevens to the U.S. Supreme Court. If confirmed, Kagan will be the third woman to preside over the nine-justice Court, and only the fourth woman to ever serve on the bench. A Democrat, Kagan is considered to be more moderate than Justice Sonia Sotomayor, Obama’s last nominee to the Court. Additionally, because Kagan was never a judge, she has no judicial track record to scrutinize during future confirmation hearings, and thus could be considered a “safer” pick. Also, unlike Sotomayor, Kagan does not have a history of opinions in labor and employment matters, as her academic career and writings focused primarily on matters of administrative and constitutional law. Although Kagan’s confirmation is not a sure bet by any means, the Senate’s 61-31 confirmation of her as Solicitor General last year indicates that she enjoys some measure of bipartisan support.
Kagan has spent a majority of her legal career in academic settings. A list of and links to her published articles can be found here. Before she was confirmed as Solicitor General, Kagan served as the dean of Harvard Law School. According to her Harvard Law faculty bio page, in 1995 Kagan began working in the Clinton Administration as Counsel to the President. In 1997, Kagan was named as Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council.
During her time at Harvard, Kagan opposed the Solomon Amendment, a law that requires colleges and universities to provide students access to military recruiters or lose federal funding. When Kagan became Dean in 2003, a group of law students and faculty members formed the Forum for Academic and Institutional Rights (FAIR), and challenged the Amendment. Harvard maintained a nondiscrimination policy that barred recruiters whose employers maintained discriminatory employment policies. Kagan believed the military’s “don’t ask, don’t tell” policy was in violation of the school’s position. The Supreme Court eventually upheld the legality of the Solomon Amendment, and Kagan reluctantly rescinded the school’s policy of disallowing military recruiters.
Despite the contention by some lawmakers that this anti-discrimination stance was instead anti-military, Kagan’s confirmation as Solicitor General in 2009 went fairly smoothly. A video and written transcript of her confirmation hearing can be found here. The Senate Judiciary Committee’s questionnaire to Kagan, her responses, and letters the Committee received in connection with her nomination can be found here.
As Solicitor General, Kagan argued on behalf of the government in favor of limiting independent corporate and union spending during political campaigns in Citizens United v. FEC. The Supreme Court ruled against the government by a 5-4 margin. Kagan has no real paper trail showing her positions on labor and employment issues. Because Kagan has criticized the Supreme Court confirmation process on the grounds that lawmakers do not adequately press nominees for their opinions on specific matters, expect Senators to ask pointed questions of the nominee. Senator Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee, has urged the Senate to confirm Kagan before the Senate begins its August recess.
Photo credit: Doc Searls