Elena Kagan and Social Issues

This article is part one of a series on Supreme Court nominee Elena Kagan. To read part two, (“Kagan’s Heroes”) click here. To read part three, “Foreign Law: Coming Soon to a Supreme Court Near You,” click here.

On the campaign trail in 2008, Barack Obama told Planned Parenthood he wanted to select a judge with “the empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old.” Now he is smearing Republicans for assuming he has done just that. The White House branded a blog post by Ben Domenech at The Huffington Post, which stated Supreme Court nominee Elena Kagan is a lesbian, part of an elaborate Republican “whispering campaign.” Just as liberals claim all opposition to Obama is racist, they hope to frame all opposition to Kagan as “homophobic.” Domenech explained he is not part of a vast right-wing conspiracy but wrote that she was a lesbian “because it had been mentioned casually on multiple occasions by friends and colleagues – including students at Harvard, [Capitol] Hill staffers, and in the sphere of legal academia – who know Kagan personally.” Well-connected Democrats, including practicing heterosexual Eliot Spitzer, have insisted the nominee is straight, claiming she passively pursued the option of potentially dating men in the 1980s. (Case closed.) Considering Elena Kagan is but 50-years-old and could conceivably spend her next 40 years on the high court, her closeted sexuality should be less interesting than her legal philosophy, the judicial heroes she would model herself after, her apparent readiness to use foreign law to interpret the U.S. Constitution, her record as dean of Harvard Law School, her proposals to loosen restrictions on pornography, and her contempt for conservative Christians and the unborn.

This series of articles will address each of these points. The media won’t.

A “Mainstream” Progressive

Kagan’s radicalism emerges early and runs deep. At Princeton, she wrote the thesis, “To The Final Conflict: Socialism in New York City, 1900-1933.” The paper stated: “In our own times, a coherent socialist movement is nowhere to be found in the United States…Such a state of affairs cries out for explanation.” This is especially true in America, “a society by no means perfect.” She went on to describe how the Socialist Party’s in-fighting “reduced labor radicalism in New York,” dooming its political fortunes. “The story is a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America.” Her prescription: “American radicals cannot afford to become their own worst enemies. In unity lies their only hope.” Workers of the world, unite!

The thesis revealed Kagan had a personal stake in the topic, when she thanked “my brother Marc, whose involvement in radical causes led me to explore the history of American radicalism in the hope of clarifying my own political ideas.” (Emphasis added.) Brother Marc did what he could to increase “labor radicalism in New York”; he was a union activist with Transport Workers Local 100 until a falling out with a superior. (He is now a school teacher.)

Sean Wilentz, who advised Elena on her favorable thesis, insisted that the paper did not prove his student was a socialist, adding, “Sympathy for the movement of people who were trying to better their lives isn’t something to look down on.” Steven Bernstein, who worked with Kagan on Princeton’s newspaper, attempted to defend her from charges of radicalism, as well. “I would probably describe her back then – her politics – as progressive and thoughtful but well within the mainstream of the…sort of liberal, democratic, progressive tradition,” he said. That her ideals are in the “mainstream” of the “progressive tradition” should provide no comfort whatever.

The Daily Princetonian notes as an undergrad, Kagan served as editorial chairman of the student newspaper, “where she was responsible for the opinion content of the paper and the unsigned editorials that appeared almost daily – many of which took decidedly liberal stances on national and campus issues.”

Kagan Mocks “Innocent Life” – and You

Kagan signed her name to a 1980 editorial slamming Ronald Reagan, Christian conservatives, and the unborn. Following Reagan’s first landslide, Kagan wrote that on election night she came to the “emotion-packed conclusion that the world had gone mad.” However, in time she came to hope “that a new, revitalized, perhaps more leftist left will once again come to the fore.” (Emphasis in original.) She then bashed Christians for having the temerity to vote. “Even after the returns came in, I found it hard to conceive of the victories of these anonymous but Moral Majority-backed opponents of Senators Church, McGovern, Bayh and Culver, these avengers of ‘innocent life’ and the B-1 bomber, these beneficiaries of a general turn to the right and a profound disorganization on the left.” (There’s her emphasis on leftist “organization,” again.)

Her mocking quotations around “innocent life” indicate a hostility to the unborn. Although NewsMax has reported that, as a White House adviser “Kagan urged then-President Bill Clinton to support a ban on late-term abortions,” the reality is another matter. The amendment to the Partial Birth Abortion ban, offered by Tom Daschle, contained a “health of the mother” exception, a broad loophole used to undermine abortion bans. Warren Hern, who literally wrote the book on performing abortions, once told The Washington Times, “I will certify that any pregnancy is a threat to a woman’s life and could cause ‘grievous injury’ to her ‘physical health.’” In a 1993 article, Kagan wrote the Supreme Court “to its discredit” approved of a bill that forbade the use of taxpayer dollars to subsidize abortion advocacy. Kagan characterized the harm caused by abortion as “in fact widely contested.” In point of fact, women who have abortions also have “a more protracted course of mental disturbance” than women who miscarry, an increased risk of suicide, a 40 percent greater likelihood of developing breast cancer, and a host of other complications.

“Don’t Ask, Don’t Tell”? Don’t Recruit!

During the Clinton administration, Kagan pushed for expanding hate crimes legislation to include homosexuals. However, it was as dean of Harvard Law School that Kagan involved herself in her most public political battle: banning military recruiters from campus because they bar open homosexuals. A federal law known as the Solomon Amendment specifically prohibited any university receiving federal funds from banning military recruiters, and the government threatened to withhold $328 million from Harvard the year before Kagan became HLS dean if this were not rectified. Her predecessor, Robert Clark, caved in for the money. In October 2003, in the midst of a war, Kagan wrote an e-mail to the entire student body explaining that her decision to continue to allow the recruiters/hatemongers on campus “causes me deep distress.” She fumed, “I abhor the military’s discriminatory recruitment policy. She referred to the “Don’t Ask Don’t Tell” policy, which was instituted by her former boss, Bill Clinton, as a compromise to allow gays to serve in the military, as “a profound wrong – a moral injustice of the first order. And it is a wrong that tears at the fabric of our own community, because some of our members cannot, while others can, devote their professional careers to their country.” She signed an amicus curiae brief supporting a lawsuit the Forum for Academic and Institutional Rights (FAIR) brought against the amendment. A lower court agreed with her, and FAIR, and in 2004, Kagan retracted Harvard’s welcome. However, the Supreme Court unanimously rejected the FAIR case – and by extension, Kagan’s legal philosophy. Even Ruth Bader Ginsburg was to the right of Kagan on the issue. But her poor judgment did not hold her back.

Kagan v. Traditional Marriage

In hearings to become Solicitor General, Kagan assured the Senate she could argue the government’s position before the Supreme Court even if she disagreed with it. But she never promised to argue convincingly. In her new capacity as the nation’s top lawyer, Kagan had to argue in favor of the Defense of Marriage Act (DOMA) despite her long opposition to its central theme: that marriage consists of one man and one woman. So, Kagan threw the fight. In her argument “in favor” of DOMA, she added gratuitously, “this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal.” Further, the Department of Justice did not believe in “any legitimate government interests in procreation and child-rearing.” Gay rights activists have already seized upon Kagan’s weak argument as a new way to attack DOMA in the courts. The Human Rights Campaign, a homosexual lobbying group, strongly supports Kagan’s nomination.

Other organizations have seen Kagan try to silence them. In announcing Kagan’s appointment on Monday, Obama said: “Last year, in the Citizens United case, she defended bipartisan campaign finance reform against special interests seeking to spend unlimited money to influence our elections.  Despite long odds of success, with most legal analysts believing the government was unlikely to prevail in this case, Elena still chose it as her very first case to argue before the Court.” Kagan argued the government had the right to ban certain corporate-funded speech for certain period of time before elections, with her deputy arguing this included distributing books. Once again, the Supreme Court rejected Kagan’s legal reasoning, this time 5-4. Barack Obama, unhappy with the decision, scolded the Supreme Court during this year’s state of the union address. Now, he is changing the court by promoting his former mentor.

If she wins, we – and all “innocent life” – lose.

(Please note: Kagan’s view of pornography will be covered in a future article.)

Ben Johnson is the author of Party of Defeat (2008, Spence Publishing, with David Horowitz), as well as two books on Teresa Heinz Kerry’s funding of radical causes. Visit his personal website.


1. The extended quotation from the thesis is:

In our own times, a coherent socialist movement is nowhere to be found in the United States. Americans are more likely to speak of a golden past than of a golden future, of capitalism’s glories than of socialism’s greatness. Conformity overrides dissent; the desire to conserve has overwhelmed the urge to alter. Such a state of affairs cries out for explanation. Why, in a society by no means perfect, has a radical party never attained the status of a major political force? Why, in particular, did the socialist movement never become an alternative to the nation’s established parties?

Through its own internal feuding, then, the SP [Socialist Party] exhausted itself forever and further reduced labor radicalism in New York to the position of marginality and insignificance from which it has never recovered. The story is a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America. Radicals have often succumbed to the devastating bane of sectarianism; it is easier, after all, to fight one’s fellows than it is to battle an entrenched and powerful foe. Yet if the history of Local New York shows anything, it is that American radicals cannot afford to become their own worst enemies. In unity lies their only hope.

This article is part one of a series on Supreme Court nominee Elena Kagan. To read part two, (“Kagan’s Heroes”) click here. To read part three, “Foreign Law: Coming Soon to a Supreme Court Near You,” click here.

This article originally appeared as the lead story on Citizen USA, on Thursday, May 13, 2010.