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June 03, 2010

Documents Show Kagan To Be Zealous, Doctrinaire Liberal; Obama May Suppress Documents on Claim of Executive Privilege

Okay, first, the documents from her days as a clerk:/a>

On abortion, Kagan wrote a memo in a case involving a prisoner who wanted the state to pay for her to have the procedure. Kagan expressed concern to Marshall that the conservative-leaning Court would use the case to rule against the woman--and possibly undo precedents protecting a woman's right to abortion.

"This case is likely to become the vehicle that this court uses to create some very bad law on abortion and/or prisoners' rights," she wrote in the 1988 memo.

She also expressed strong liberal views in a desegregation case. Summarizing a challenge to a voluntary school desegregation program, Kagan called the program "amazingly sensible." She told Marshall that state court decisions that upheld the plan recognized the "good sense and fair-mindedness" of local efforts.

"Let's hope this Court takes note of the same," she wrote in the 1987 memo. Just three years ago, the Supreme Court struck down a nearly identical plan.

Kagan also wrote a memo that senators could use to question whether she believes there is a constitutional right to gay marriage.

That memo summarized a 1988 case involving a prisoner serving a life sentence in New York. He argued the state of New York was required to recognize his marriage-by-proxy in Kansas - even though such marriages were illegal in New York.

The basis of his argument was that New York had a duty under the Constitution's Full Faith and Credit Clause to recognize his Kansas the marriage as valid. Kagan told Marshall his position was "at least arguably correct," and recommended asking for a response from New York officials.

Then there was the recently disclosed memo on gun rights. In a case challenging the District of Columbia's handgun ban as unconstitutional, Kagan was blunt: "I am not sympathetic." The Supreme Court took the opposite approach two years ago, striking down the D.C. gun ban as unconstitutional.

Taken together, these documents are certain to provoke considerably more questions than the less controversial papers unearthed before her confirmation hearings for solicitor general.

Now, for the likely-to-be-suppressed documents. These were written when she was in the executive branch under Clinton.

“President Obama does not intend to assert executive privilege over any of the documents requested by the Committee,” Bauer writes.

“Of course, President Clinton also has an interest in these records, and his representative is reviewing them now,” he adds.

Hence, Clinton could say "suppress" and Obama would suppress on Clinton's behalf.

Gee, they're making a lot of use out of Clinton as whipping boy of late, aren't they.


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posted by Ace at 08:01 PM

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