Kagan clerking notes may draw GOP fire

Voiced concern on conservatives as Marshall’s aide

By Mark Sherman and Jessica Gresko
Associated Press / May 26, 2010

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WASHINGTON — As a young lawyer working for Justice Thurgood Marshall, Elena Kagan repeatedly expressed her concern that a conservative Supreme Court was looking for ways to reduce the rights of women, criminal defendants, and prisoners.

Documents from Kagan’s year with Marshall show a law clerk who was frequently assessing the politics of the institution. Her memos to the justice are on file in Marshall’s papers at the Library of Congress.

Kagan’s time with Marshall, the groundbreaking lawyer who argued against segregation and became the first African-American on the court, is likely to be a subject at her confirmation hearing, scheduled to begin late next month. She would be the sixth justice to have been a law clerk for the high court, but the only one whose former boss’s papers were public at the time of her nomination.

Some Senate Republicans have signaled they could make issue an issue of Kagan’s clerkship with Marshall, whom conservatives have branded an activist judge more concerned about outcomes than rules.

“You can’t draw too many conclusions from these memos,’’ said Brad Snyder, a University of Wisconsin law professor who has examined relationships between judges and clerks. “There’s a danger of saying if Kagan clerked for Marshall she must be an off-the-charts liberal. There’s no formula, but it will be interesting what she chooses to say about Thurgood Marshall, the judge, at her confirmation hearings.’’

Kagan, who was 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. Her concerns appear to echo Marshall’s well-established views.

“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 a memo in April 1988 about a dispute over abortions for women jail inmates. She advised Marshall to vote to reject an appeal from Monmouth County, N.J., even though she had reservations about a federal appeals court ruling in favor of the inmates.

Kagan said the decision requiring the county to pay for inmates’ elective abortions was “well intentioned,’’ but “parts of it are ludicrous.’’ She said that women generally have no right to have their abortions paid for. “I do not see why prisoners should have such rights,’’ she said.

The court ultimately turned down the case.

Only once have a Supreme Court nominee’s writings from his or her days as a clerk ignited a controversy. In 1971, William Rehnquist was awaiting confirmation when a memo surfaced from his time as a law clerk to Justice Robert Jackson.

“I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by my ‘liberal’ colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed,’’ Rehnquist wrote in 1952 as Jackson and his colleagues considered whether to overturn the 56-year-old precedent and outlaw segregation in public schools.

Rehnquist explained that he was reflecting Jackson’s views, not his own, and he won confirmation.

In one area, Kagan took care when her view of the case was certain to differ from Marshall’s. Writing about a death sentence from Illinois, Kagan called the condemned inmate’s claim “pretty weak’’ and said of a lower court ruling upholding the death sentence, “I can’t honestly say that it was incorrect.’’