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Obama’s SG Pick Elena Kagan—Criminal Procedure



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I’ve reviewed a handful (five, to be precise) of “cert memos” on criminal-procedure issues that Elena Kagan prepared in late July and August 1987 as a law clerk to Justice Thurgood Marshall.  The memos reveal Kagan to have been decidedly to the Left on these issues.

In one memo (concerning a cert petition in Boles v. Foltz), for example, Kagan addressed the question “whether pet[itione]r invoked his right to counsel so as to preclude police officers from interrogating him prior to his meeting with an attorney.”  When first arraigned on a larceny charge, the petitioner had made a statement that was ambiguous on the question whether he was invoking his right to counsel.  Four days later, police officers read him his Miranda rights, obtained his signed waiver of those rights, and interrogated him.  During the interrogation, he confessed to a murder.  In a habeas challenge to his murder conviction, the Sixth Circuit, in an opinion by Carter appointee Cornelia Kennedy, ruled that his initial statement had not invoked his right to counsel and that his statement of confession was admissible.  Kagan’s contrary assessment:  “I think that the admission of this statement is outrageous.”  Kagan, however, expressed her “worry … that the Court might reach the opposite result so that all ambiguous statements in the future will be construed in favor of the police.”

Concern over—verging on contempt for—what “a majority of this Court might hold” (memo on Floyd v. Connecticut, Aug. 14, 1987) is stated, in one fashion or another, in each of these memos.  E.g.:  “Taking cert on this case would only give this Court an opportunity to place its stamp of approval on pretextual stops” (memo on Verona-Algos v. United States, Aug. 11, 1987); “I don’t see any reason to give this Court an opportunity to tackle the [Fourth Amendment] issue presented here” (memo on Vrtiska v. Nebraska, Aug. 28, 1987); “I cannot imagine this court doing anything good with this case” (involving invocation of right to counsel) (memo on Russell v. Texas, July 24, 1987).

What was “this Court” that Kagan so feared?  At the time she was writing these memos, the Court consisted of Chief Justice Rehnquist and Justices Brennan, White, Marshall, Blackmun, Stevens, O’Connor, and Scalia.  Justice Powell had recently resigned, and Judge Bork’s nomination to replace him was pending.  So even if Bork had joined the Court, the fifth vote needed for any conservative majority was Justice O’Connor.  So Kagan’s concern-verging-on-contempt was for what O’Connor might do.

One might argue that Kagan, rather than expressing her own personal views, was merely advising the very liberal Marshall on what was consistent with his judicial approach. But I see nothing in these memos that supports that reading (and much that doesn’t).  [Update (2/10):  On review, I don’t think that I expressed myself as clearly as I should have in the preceding sentence.  Let me try again:]  The purpose of Kagan’s memos was indeed to advise Justice Marshall on what was consistent with his judicial approach, but Kagan evidently believed (quite sensibly, if she shared Marshall’s overall outlook) that expressing her own views furthered that purpose.


Tags: Whelan


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