Thursday, June 10, 2010 5:00 PM
Sessions, Kyl Blast Kagan Over Memos
Senate Judiciary ranking member Jeff Sessions, R-Ala., and Minority Whip Jon Kyl, R-Ariz., on Thursday sharpened attacks on Elena Kagan's work as a law clerk for Justice Thurgood Marshall, suggesting there is little Kagan can do to avoid their opposition and that of most Senate Republicans.
Kyl said Kagan's memos suggest she would be a "results-oriented" justice. "I am not going to vote for someone that I conclude is a results-oriented judge rather than someone who just decides each case based on facts," he said.
The senators elaborated on a critique Sessions has previously laid out, citing a series of cases considered by the court while Kagan worked under Marshall, when she advised him to accept or reject cases based on strategic considerations of how the court would rule on the case. The senators released a document citing memos where they said Kagan showed a "propensity to view legal cases through a political lens."
"These bench memos reveal time and time again an effort to reach a certain result in the case," Kyl said.
In one case, Lanzaro v. Monmouth County Correctional Institutional Inmates, Kagan questioned a lower court's decision but urged the court not to take it because it would likely "become the vehicle that this Court uses to create some very bad law on abortion and/or prisoner's rights."
While Supreme Court Justices and clerks are widely assumed to consider taking cases with an eye toward rulings that result in what they consider favorable policy results, the senators noted that Kagan's memos are unusually replete with first-person references to her views such as "I think."
"Her background is heavily in political advocacy -- political legal advocacy -- more than the meat-and-potatoes discipline of serious legal work," Sessions said.
The senators added that because Kagan has no judicial record, the memos get more weight than they would for a judge with years of rulings.
Both said they would not decide how they will vote on Kagan's nomination until hearing her explanation at a June 28 Judiciary hearing, but they said her limited record will make it difficult to overcome their concerns.
"She has a burden of proof," Kyl said.


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