Kyl, Sessions Blast Kagan's 'Troubling' Clerking Memos As 'Political Advocacy' Rather Than 'Serious Legal Work'
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WASHINGTON — Two senior Republican senators criticized Supreme Court nominee Elena Kagan Thursday for memos she wrote as a young law clerk to Justice Thurgood Marshall, saying the papers suggest she lets politics dictate her legal decisions.
Sen. Jon Kyl of Arizona and Jeff Sessions of Alabama said the writings show that Kagan was highly opinionated and wanted to use the law to achieve specific policy results, rather than deciding legal questions on their merits.
"It indicates a developing lawyer who has a political bent to their legal work – pretty significantly so," said Sessions, the top Republican on the Judiciary Committee that will hold Kagan's confirmation hearings.
The memos, Sessions added, "show that her background is heavily in political advocacy ... more than the meat-and-potatoes discipline of serious legal work."
The two senators cited notes Kagan wrote to Marshall in which she argued that the Supreme Court shouldn't take certain cases based on her fear that they would give its conservative majority the chance to scale back abortion and criminal rights, among others.
In one, regarding a dispute over abortions for women jail inmates, she advised Marshall to vote to reject an appeal even though she had reservations about a federal appeals court ruling in favor of the inmates.
"This case is likely to become the vehicle this court uses to create some very bad law on abortions and/or prisoners' rights," Kagan said in an April 1988 memo.
Kyl called the memos "troubling."
"They reveal time and time again an effort to reach a certain result in the case," he said. "There's a disturbing pattern that evolves here when you read these that suggests that she is more interested in taking a case or not taking it based upon how they can advance the law to suit themselves or play defense against a court that she thinks might make bad law."
The publicly available memos have been on file at the Library of Congress since 1993.
Kagan, 27 when she began working for Marshall in 1987, said in Senate testimony last year that she tried to "channel" Marshall in her memos, not express her own views.
Sen. Patrick Leahy, D-Vt., the chairman of the Judiciary Committee, said it's no surprise that Kagan would try to apply her boss' legal approach as his clerk.
"It is unsurprising that her evaluation of cases as a law clerk were mindful of Justice Marshall's long-standing jurisprudence, and that her recommendations to him applied the lens through which he viewed cases and the law," Leahy said.
Kyl rejected that explanation, citing the personal terms Kagan often used to articulate her stance on points of law.
"I don't think she's simply channeling a person with whom she disagrees. I think she's complicit in the effort to make law rather than decide law," Kyl said.
The two also highlighted a memo in which Kagan recommends Marshall call for a response from the government to accusations by a child pornographer that he was entrapped by a Postal Service sting operation into sending sexually explicit videos through the mail. Kagan wrote that she was "a bit shocked" that the government had published a newsletter called "Love Land" including ads offering sexually oriented material.
Sessions said the language suggests "a rather personal view, not the dispassionate legal view that you would expect from a law clerk."
The White House defended Kagan, noting that she recommended Marshall deny the pornographer's appeal. As solicitor general, Kagan successfully defended a law allowing courts to keep "sexually dangerous" inmates imprisoned indefinitely.
"Republicans are resorting to false attacks in their desperate attempt to find a reason to criticize General Kagan," said Ben LaBolt, a White House spokesman. "Kagan's record on tough penalties for sex offenders is clear."
Both senators said they haven't decided yet how they'll vote on Kagan's confirmation. Kyl, the No. 2 Republican who also sits on the Judiciary panel, was one of seven in his party to join Democrats last year in voting to confirm Kagan as solicitor general. He has said repeatedly that vote will have no bearing on his decision about whether she's fit to have a lifetime term on the nation's highest court.
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JULIE HIRSCHFELD DAVIS 06/11/10 12:48 AM ET Associated Press