June 4, 2010 / 6:30 PM / 7 years ago

Republican troubled by old Kagan memos

4 Min Read

<p>Supreme Court nominee Elena Kagan boards an elevator during her day on Capitol Hill, meeting with various Senators who will vote on her nomination to the U.S. highest court, May 12, 2010.Jason Reed</p>

WASHINGTON (Reuters) - A key Republican voiced concern on Friday about what he called "a leftist philosophy" expressed by U.S. Supreme Court nominee Elena Kagan as a young clerk for liberal Justice Thurgood Marshall more than two decades ago.

With the Senate Judiciary Committee set to begin Kagan's confirmation hearing on June 28, Jeff Sessions, the panel's top Republican, pounced on a report by CBS News.

The network on Thursday cited documents in Marshall's papers at the Library of Congress that showed Kagan standing firm with her former boss and other liberals.

"Kagan's memos unambiguously express a leftist philosophy and an approach to the law that seems more concerned with achieving a desired social result than fairly following the Constitution," Sessions said.

While Kagan, 50, is expected to be confirmed by the full Senate, her hearing will be an opportunity for senators in both parties to question the nominee, seen as a moderate.

President Barack Obama nominated Kagan, his solicitor general the past year, to replace retiring Justice John Paul Stevens, the court's leading liberal. The Obama administration is keen to see the confirmation process go smoothly so it can concentrate on handling the Gulf of Mexico oil spill and creating jobs ahead of the November midterm elections.

In 1988, Kagan wrote a memo in a case involving a prisoner who wanted the state to pay for her to have an abortion, CBS reported. Kagan expressed concern that the court would use the case to rule against abortion rights.

"This case is likely to become the vehicle that this court uses to create some very bad law on abortion and/or prisoners' rights," Kagan wrote.

In a 1987 memo, she defended as "amazingly sensible" a school desegregation program. In 2007, CBS noted, the current court struck down a nearly identical plan.

As a Marshall clerk, Kagan also criticized a Supreme Court decision that set tough new standards for convicted criminals to mount an appeal on grounds they had ineffective counsel.

"These troubling memos have to be carefully examined," Sessions said, adding that it is important for the committee to get all relevant materials.

Documents from Clinton Era

The William J. Clinton Library on Friday released 46,500 of about 160,000 pages of documents stemming from Kagan's work as a lawyer in the Clinton White House.

The Judiciary Committee requested the materials as part of its examination of Kagan, who over the past year has represented the U.S. government in cases before the Supreme Court as solicitor general.

Kagan worked as President Bill Clinton's associate counsel from 1995 to 1996 and in his office of domestic policy from 1997 to 1999.

The Clinton Library has said it aims to release the remaining documents before the start of Kagan's confirmation hearing later this month.

Senate Republicans have said that if they do not have enough time to review the documents, they will request the hearing be delayed.

Judiciary Committee Chairman Patrick Leahy, a Democrat, has indicated that he believes Republicans will have ample opportunity to examine the papers.

Senate Democrats brushed off the CBS report, saying the documents cited by the network had been long available to the public.

They also noted that during Kagan's 2009 confirmation hearing to become solicitor general, she addressed her clerkship for Marshall, who died in 1993.

"I was a 27-year-old pipsqueak, and I was working for an 80-year-old giant in the law," she testified.

Reporting by Thomas Ferraro; editing by Mohammad Zargham

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