Posted June 13, 2010 by The Underground Staff in Commentary and News

Kagan’s track record shows some waffling, some support for faith issues

Supreme Court nominee Elena Kagan shows a track record that seems to support some stands where faith issues are concerned, and waffling on others.

Memos submitted to Congress showed that while Kagan defended the individual right to religious expression (including supporting the retention of the Mojave cross), she also supported in the past assisted suicide and abortion, the Boston Globe said.

The documents, some of which were accessed in advance by the AP, form part of a 40,000 page record of her past work including memos, messages and decisions which she helped craft, the AP said.

Still pending are 80,000 pages of email, 11,000 of them penned by her.  A large part of the documents are from her work as White House counsel to former President Bill Clinton, the Boston Globe said.

They will be available to the public on Friday through the William J. Clinton Presidential Library in Little Rock, Ark., the AP said.

From what can be gleaned so far, Kagan defended the right to freedom of religious expression.  In 1996 she played a role in crafting an executive order on the right of federal employees to express their faith in their place of work, the AP said.

Kagan also took up the cudgels for a California landlady who decried a state law that prohibits housing discrimination.  The landlady would not lease to couples who were not married, due to her religion, the AP said.

Federal judges decided against the landlady noting she could find other ways to make a living.  However Kagan in a memo condemned the decision in Smith v. Fair Employment Housing Commission and urged that the lower court ruling be reversed, the AP said.

The documents also show that Kagan expressed qualms regarding a federal ban on assisted suicide.  She also wrote another memo in 1996 that led to Clinton’s veto of a Republican-led Congress-approved ban on the abortion procedure, the Boston Globe said.

Kagan’s work defending Clinton from scandals during his presidency and a sexual harassment lawsuit that in part led to his impeachment are also included in the documents, the Boston Globe said.

In sum, there are some 160,000 documents pending that the Clinton library is working on prior to their release to the Senate Judiciary Committee. Kagan’s nomination hearings will start on June 28, the Boston Globe said.

Republicans feel the documents are being released too slowly and are concerned this may affect the quality of their committee review.  They would like to determine whether Kagan’s strong liberal opinions are sometimes substituted for unassailable legal judgment, the Boston Globe said.

One area that may be of mutual concern to both Christians and seculars is Kagan’s handling of the Mojave Cross issue. The Americans United for Separation of Church and State expressed concern that Kagan defended the law that was at issue regarding the Mojave Cross, and which permitted its retention on site, the Post Chronicle said.

They viewed Kagan’s participation as questionable since she did so as solicitor general, and contend that her doing so helped in her becoming a Supreme Court Justice nominee, the Post Chronicle said.

What may concern Christians however is that when Kagan was being confirmed as solicitor general she waffled, describing her participation in the Mojave Cross issue as “youthful indiscretion” and calling her analysis “deeply mistaken” and “utterly wrong,” the Post Chronicle said.