Because Supreme Court nominee, and U.S. solicitor general, Elena Kagan has spent little time as a litigator and has not served as a judge, she does not come with the usual trove of legal briefs or court opinions reflecting a judicial or legal style. But there are still subjects for the Senate to explore in their confirmation process.
Among them:
Late-term abortions
As a White House adviser in 1997, Supreme Court nominee Elena Kagan urged then-President Bill Clinton to support a ban on late-term abortions, a political compromise that put the administration at odds with abortion rights groups.
Documents from Clinton’s presidential library show that Kagan encouraging Clinton to support a bill that would have banned all abortions of viable fetuses except when the physical health of the mother was at risk.
The abortion proposal was a compromise by Democratic Sen. Tom Daschle. Clinton supported it, but the proposal failed and Clinton vetoed a stricter Republican ban.
Human cloning
Kagan recommended that Clinton support legislation banning human cloning in May 1997. At the time, the scientific and religious communities were abuzz about news that scientists had cloned a sheep, Dolly. The news raised questions about the legal and ethical boundaries of such research.
Kagan and White House science adviser Jack Gibbons urged the president to support a congressional ban on human cloning. Clinton followed that advice but the bill died in Congress.
Ruling on Saudi Sept. 11 liability
As U.S. solicitor general, Kagan filed legal papers with the Supreme Court in 2009 urging it not to hear arguments in a lawsuit against the government of Saudi Arabia brought by thousands of family members and other victims of the Sept. 11, 2001, terrorist attacks.
Days later, the Supreme Court rejected the case, following the lead of the solicitor general, as it often does in deciding whether to weigh in on a matter.
The Supreme Court decision effectively let stand lower-court rulings that the Saudi government and senior members of the Saudi royal family could not be sued by U.S. citizens — even if the plaintiffs had shown that millions of dollars in Saudi government money went to bankroll al-Qaida in the years leading up to the Sept. 11 attacks.
Defense of rappers 2 Live Crew
In 1992, on behalf of the recording industry, Kagan helped successfully defend 2 Live Crew’s “As Nasty As They Wanna Be” album, which included the single “Me So Horny.”
“I’m like a dog in heat, a freak without warning,” the rappers sang, before graphically elaborating.
A trial judge called the song obscene. The appellate court, after reading arguments from Kagan and others, decided otherwise.
“The work had artistic value,” the appellate judges concluded, citing expert testimony, adding that “we reject the argument that simply by listening to this musical work, the judge could determine that it had no serious artistic value.”
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