Senators: Kagan memos 'troubling'

Newly uncovered legal memos written in 1988 by Supreme Court nominee Elena Kagan are “troubling” and possibly grounds for GOP opposition, according to two top Senate Republicans.

Senate GOP Whip Jon Kyl of Arizona and Sen. Jeff Sessions of Alabama, the ranking Republican on the Senate Judiciary Committee, stopped just short of announcing their outright opposition to Kagan, but were heavily critical of memos Kagan drafted while a law clerk for the late Justice Thurgood Marshall in 1988.

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The memos, obtained from the Library of Congress, were written by Kagan to Marshall to offer recommendations on which cases should be accepted by the court and which were denied. Kyl and Sessions pointed to several examples that they said proved Kagan expressed her personal opinion or political philosophy instead of examining issues objectively.

In doing so, Kyl and Sessions revived a GOP line of attack used against Justice Sonia Sotomayor. During last summer’s hearings, several GOP senators attacked Sotomayor for expressing a personal viewpoint on legal cases instead of examining them based on legal precedent.

Sessions said the memos demonstrate that Kagan is “a developing lawyer who has a political bent to their legal work, pretty significantly so. … Her background is heavily in political legal advocacy more than the meat-and-potatoes discipline of serious legal work.”

Kyl said neither he nor Sessions has yet decided to oppose Kagan.

“The views we’re expressing here today are preliminary. Neither one of us has decided how we’re going to vote on her nomination,” Kyl said. “Let me make it clear that we are not pre-deciding.”

Kyl defended his vote to confirm Kagan as solicitor general, saying that he saw a clear distinction between a temporary political appointment and a lifetime appointment to the Supreme Court. He also noted that the Marshall memos were not known at the time of her confirmation hearings as solicitor general.

Kyl and Sessions pointed to six categories of cases in which Kagan used phrases like “I think” and “I believe,” as well as cases in which she recommended against a case being accepted by the Supreme Court despite facts that were still in dispute.

“The problem with these bench memos is that they reveal, time and time again, an effort to reach a certain result in the case,” Kyl said. “The point here is that if you’re using your position on the United States Supreme Court to advance a result rather than to decide a case between Party A and Party B, it seems to me it gives some indication as to what you would do as a Supreme Court justice.”

Judiciary Committee Chairman Patrick Leahy (D-Vt.)  has announced that Kagan’s confirmation hearings will begin on June 28.