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Supreme Court: Kagan's philosophy hard to define

By Katie Connolly
BBC News, Washington

Elena Kagan's career is dotted with impressive professional accomplishments - the US's first female solicitor general, first female dean of Harvard Law School, adviser to President Clinton.

President Obama announced Elena Kagan's nomination at the White Hosue on Monday
President Obama announced Elena Kagan's nomination at the White House

But her sparkling resume reveals remarkably little about her views on the critical issues she'll be expected to adjudicate if confirmed as a Supreme Court justice.

She has never been a judge so does not have a history of rulings to scrutinize. And although she rapidly rose through academia, she has published only five scholarly law review articles.

In her current role as solicitor general, Ms Kagan argued cases before the Supreme Court. But experts caution against assuming that those cases represent her personal views.

"A solicitor general has the solemn duty to defend the constitutionality of any act of the US government," says Patricia Millett, co-chair of the Supreme Court Practice at noted law firm Akin Gump Strauss Hauer & Feld.

The arguments she has made as solicitor general are not personal statements of belief.

Senators will attempt to draw out her personal views during her hearings before the judiciary committee - and in the numerous one-on-one meetings she will have on Capitol Hill in the coming days.

Kagan is a liberal who is unlikely to upset the current balance of the court, although she is considered more centrist than Justice Stevens, who she would replace.

One thing clear from her writings though is that Ms Kagan is a strong defender of the regulatory authority of government.

That view could be critical in coming years as the US Congress passes legislation regulating healthcare and the financial sector.

Anti-gay funeral protesters

The Supreme Court has already agreed to hear over a dozen cases in the 2010 term.

One of the most controversial, Snyder v Phelps, involves members of the Westboro Baptist Church protesting at the funerals of members of the US military.

Kagan advised then-Senator Joe Biden during the confirmation of Ruth Bader Ginsburg
Kagan advised then-Senator Joe Biden during the confirmation of Ruth Bader Ginsburg

Westboro founder and pastor, Fred Phelps, argues that God kills soldiers in Iraq and Afghanistan as punishment for America's tolerance of homosexuality. Phelps and his supporters have picketed funerals with signs including "God hates you" and "You're going to hell".

Albert Snyder sued Phelps for defamation, invasion of privacy and intentional infliction of emotional stress after Westboro members protested at the funeral of his son Lance Corporal Matthew Snyder of the US Marine Corps.

Snyder won a jury trial, but the decision was overturned by an appeals court. That court found that Phelps was protected by the First Amendment, which enshrines the right to free speech. The Supreme Court will hear the case in the term beginning in October.

Professor Jonathan Turley, a constitutional law expert at George Washington University worries that Ms Kagan doesn't see free speech issues as absolute.

"Kagan has suggested that the government has broad authority in cracking down on hate speech. It's a position that civil libertarians abhor," Mr Turley, a self identified civil libertarian says.

"She seems willing to balance government interest against individual rights to a degree that worries civil libertarians."

Free speech issues are particularly sensitive in the United States, and the religious implications of this case make it even more explosive. "I don't think she will have a doctrinaire response in one way or another," says Patricia Millett.

Explicit video games

If confirmed, Ms Kagan will face another free speech issue when hearing a case involving California Governor Arnold Schwarzenegger's attempts to prohibit the sale to children of video games showing people being maimed, killed or sexually assaulted.

The current law, which Gov Schwarzenegger signed in 2005, imposes a $1,000 fine on retailers caught selling "ultra-violent" games to anyone under 18 years of age.

Another case before the court, Flores-Villar v the United States, involves sex-based discrimination.

BIOGRAPHY: ELENA KAGAN
Born 28 April, 1960; grew up in New York City
Like Mr Obama, served on the Harvard Law Review
Worked for Supreme Court Justice Thurgood Marshall
Served in the Clinton administration 1995-1999
Appointed Dean of Harvard Law School in 2003
Confirmed as US solicitor general March 2009

Under current law, mothers may transfer American citizenship to their children if they had lived in the United States for a year. Fathers though can only transfer citizenship if they have lived in the US for a total of 10 years.

The case will decide whether this disparity is legally permissible.

Patricia Millett believes that Ms Kagan is strongly anti-discrimination and expects her ruling on the Flores-Villar case to reflect that tendency.

As solicitor general, Ms Kagan urged the Supreme Court to hear the case of one of Ms Millett's clients, a US military reservist who believed he had been the victim of workplace discrimination because of his military commitment.

During that time, Ms Millett says that Elena Kagan demonstrated a "sensitivity and understanding of the burdens and challenges that members of the military have".

"I think that sensitivity is something that comes from the heart," she adds.

Non-traditional war

Critics on the left worry about statements Ms Kagan made in her previous confirmation hearing, agreeing with Republican Senator Lindsey Graham that the president may detain terror suspects indefinitely during war time.

MARDELL'S AMERICA
Mark Mardell
Will Republicans start a 'Get Shorty!' campaign?
Mark Mardell
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On this front, Professor Turley says: "President Obama has been a perfect nightmare for civil liberties people. He's embraced Bush Administration policies and Kagan has been one of the people advancing those principles."

But Kevin Russell, a Supreme Court expert at Washington DC firm Howe and Russell, says Ms Kagan's carefully worded responses in those hearings provide few insights into her views.

"The big question she left unanswered is to what extent does that detention authority translate in non-traditional war," Mr Russell says.

Patricia Millett is curious about how her time working in the White House will affect her thinking.

"Once you're inside the government and you are getting these briefings from the military who are dealing with people who have been captured, that can temper your initial reactions," she says.

"A year of having sat there at the heart of it and heard not only people who stress, rightly, the civil liberties issues but also the people who have to run a war, brings a different perspective to the bench."



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