The late futurist Herman Kahn once said there are two periods in life when one’s ideas, attitudes, and convictions are powerfully shaped: before one is six years old, and when one is in college. Indeed, according to Kahn, these are the only times when a person’s ideas can be radically changed. The worldview one acquires in college abides.
What significant convictions did Supreme Court nominee Elena Kagan hold during her college years?
As an undergraduate at Princeton University, Kagan devoted “14 hours a day, six days of a week” during one of her summer breaks working for political candidate Elizabeth Holtzman.[1] Kagan admired Holtzman’s “intelligence, her integrity, her ideals.”[2]
Holtzman ran for the United State Senate in New York in the fall of 1980. Among her core ideals were “abortion rights.” Holtzman was a staunch supporter of pro-abortion policies and laws, and over the years had been endorsed by leaders of the National Organization for Women.[3] For example, as a candidate for New York City Comptroller in 1986, Holtzman promoted herself as the only local prosecutor in the nation to file a friend of the court brief in Webster v. Reproductive Health Services[4], urging the Supreme Court to uphold a woman’s “right to an abortion.”[5]
Holtzman lost the U.S. Senate race in 1980. Following her defeat, college senior Elena Kagan penned a piece for the Princetonian, the university newspaper.[6] In that article, Kagan described her devastation over Holtzman’s loss: “I sat down and cried.”[7] Kagan cried because the woman whose “ideals” (including “abortion rights”) she so admired would not be able to implement that vision on the national level.
Kagan wrote that she was surprised by the election winners. “I found it hard to conceive of the victories of these anonymous but Moral Majority-backed [candidates].”[8] Then, in a disturbing reference, Kagan described the victors of these races as “avengers of ‘innocent life’”.[9] Why did Kagan place quotation marks around the words, “innocent life”? This requires explanation. Did Kagan contest the scientific fact that the unborn are alive? Or was her statement expressing doubt of their innocence? Either way, it communicates hostility to unborn human life and to those who promote protection of unborn human life.
Kagan’s support as a college student for the pro-abortion politician Holtzman, as well as Kagan’s subsequent employment over the years, including working for pro-abortion Presidents Clinton and Obama, leaves little doubt about her pro-abortion sympathies. If confirmed as a Supreme Court justice, how will her disdain for those who seek protection of innocent life impact her judicial opinions when cases involving such laws come before the Court? This is an important question according to Kagan’s own statement. In 1995, she wrote that “many of the votes a Supreme Court Justice casts have little to do with technical legal ability and much to do with conceptions of value.”[10]
In her article for the Princetonian, Kagan expressed her general support for politicians “…motivated by the ideal of an affirmative and compassionate government.”[11] What is an “affirmative and compassionate government”? During her senior year, Kagan wrote a thesis on the history of American socialism. In that thesis, she sought to discover why socialism has never been a major political force in the United States: “Americans are more likely to speak of a golden past than a golden future, of capitalism’s glories than of socialism’s greatness. Conformity overrides dissent; the desire to conserve has overwhelmed the urge to alter. Such a situation cries out for explanation.”[12]
She concludes that socialism ultimately failed because of internal feuding within the Party. “The story is sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America.”[13] Does Kagan still? Would she use the courts to do so?
Kagan’s convictions during college about abortion and “affirmative government” may have laid the groundwork for her future support of judicial activism, as in, e.g., her support for her “judicial hero,” Aharon Barak, who sees the judicial role as one devoted to “bridging the gap between law and society,” where judges “fill in” for perceived omissions by legislatures to meet “needs” judges see fit to address.
Kagan has also expressed deep admiration for Justice Thurgood Marshall, for whom she clerked on the Supreme Court.[14] Justice Marshall not only agreed with the Supreme Court’s activist decision in Roe v. Wade that there is a Constitutional right to abortion, but he also believed that the Fourteenth Amendment mandates that states pay for abortions.[15] Marshall felt a judge should “do what [he] thinks is right and let the law catch up.”[16] Therefore, he believed he had the power to “correct” society’s ills by granting rights that had never existed before, even if he had to overturn the will of the people.
Conclusion: In college, Kagan worked hard to support a pro-abortion candidate. She derisively referred to pro-life politicians as “avengers of ‘innocent life’” and seemingly questioned basic biology. She wanted to change America. Does the worldview acquired in her youth persist with her still? Does she believe that unborn life is not innocent life? In that case, in her eyes, what is it? Furthermore, in light of her work for and deep admiration of activist judges, does she believe that judges have the Constitutional authority to change America in accordance with socialist ideals? These are fair questions.
Kagan should be asked during her judicial confirmation hearings to explain. In the absence of any retraction of the ideas she espoused in college, we can assume she would bring pro-abortion, activist convictions to the Supreme Court.
[1] The Daily Princetonian, November 10, 1980. http://www.dailyprincetonian.com/2010/05/03/26082.
[2] Id.
[3] Specter, Michael (1992-03-14). “Feminists Painfully Watching Holtzman and Ferraro Battle”. New York Times. http://query.nytimes.com/gst/fullpage.html?res=9E0CE1DF1E31F937A25750C0A964958260&sec=&spon=&pagewanted=all. Retrieved 2008-10-16.
[4]492 U.S. 490 (1989).
[5] Holtzman, Elizabeth and Cooper, Cynthia, Who Said It Would Be Easy, New York: Arcade Publishing, Inc., 116.1996.
[6] The Daily Princetonian, November 10, 1980. http://www.dailyprincetonian.com/2010/05/03/26082.
[7] Id.
[8] Id.
[9] Id.[emphasis added]
[10] Kagan, Elena. “Confirmation Messes, Old and New”. 62 University of Chicago Law Review. 932.1995.
[11] The Daily Princetonian, November 10, 1980. http://www.dailyprincetonian.com/2010/05/03/26082. [emphasis added]
[12] Kagan, Elena. “To the Final Conflict: Socialism in New York City, 1900-1933.” Princeton University Archives. 127. [emphasis added]
[13] Id. at 130-131. [emphasis added]
[14] 71 Texas Law Review 1125 (1993).
[15] See Beal v. Doe, 432 U.S. 438 (1977). See also Harris v. McRae, 448 U.S. 297 (1980).
[16] Deborah L. Rhode, Letting the Law Catch Up, 44 Stan. L. Rev. 1259, 1259 (1992).
