Bench Memos

NRO’s home for judicial news and analysis.

Law and Policy


Kagan asserts that her role in the Obama administration focused on “law” rather than “policy.”  But surely there is such a thing as legal policy—to give just the most obvious example, the philosophy one uses to interpret the Constitution.  When an administration decides whether to argue that racial preferences are legal, for example, obviously contains both legal and policy elements.  Thus, while a lawyer in the Clinton administration, Kagan said she endorsed the position taken by the Solicitor General in the Piscataway case as a matter of law, policy, and politics.


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