Bench Memos

SG Kagan Breaks Her Vows?

In her opening statement at her February confirmation hearing to become Solicitor General, Elena Kagan emphasized the “critical responsibilities” that the Solicitor General owes to Congress, “most notably the vigorous defense of the statutes of this country against constitutional attack.”  In an exchange with Senator Feingold, she made clear the obvious point that an effective advocate must give the impression that he believes his own arguments, whether or not he actually does.  As Kagan put it, “I know that [former SG] Ted Olson would not have voted for the McCain-Feingold bill, but he … did an extraordinary job of defending that piece of legislation…. And that’s what a solicitor general does.” In response to Feingold’s joking observation that “I could have sworn he almost was believing what he was saying”, Kagan replied: “For that day he was persuaded, and that’s all you need.” 

In her response to written questions, Kagan stated that her role as Solicitor General would be to “advance … the interests of the United States, as principally expressed in legislative enactments and executive policy”:

I am fully convinced that I could represent all of these interests with vigor, even when they conflict with my own opinions.  I believe deeply that specific roles carry with them specific responsibilities and that the ethical performance of a role demands carrying out these responsibilities as well and completely as possible.

(Response to Specter # 14.)  As for the situation in which the policy of a new Administration might differ from that of a previous Administration, Kagan declared:

The cases in which a change between Administrations is least justified are those in which the Solicitor General is defending a federal statute.  Here interests in continuity and stability combine with the usual strong presumption in favor of defending statutes to produce a situation in which a change should almost never be made.

(Response to Specter # 17.)

Yesterday the Department of Justice filed a reply brief in a California case challenging the Defense of Marriage Act.  In that brief, DOJ gratuitously volunteered that “this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal” and made explicit that it was defending DOMA only because DOJ “has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality.”  Further, DOJ gratuitously abandoned strong grounds for defending DOMA, as it asserted that it “does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing.”  As the Volokh Conspiracy’s Dale Carpenter, an ardent proponent of same-sex marriage, puts it:

This new position is a gift to the gay-marriage movement, since it was not necessary to support the government’s position. It will be cited by litigants in state and federal litigation, and will no doubt make its way into judicial opinions. Indeed, some state court decisions have relied very heavily on procreation and child-rearing rationales to reject SSM [same-sex marriage] claims. The DOJ is helping knock out a leg from under the opposition to gay marriage.

Consistent with convention, SG Kagan’s name does not appear on the district-court brief.  But two former senior DOJ officials have confirmed that, under usual practices, she surely must have been aware of, and approved, the positions taken in it.  There are many things that may be said about the brief, but no one can plausibly contend that it provides a “vigorous defense” of DOMA.  (Relatedly, I’ve previously written about Kagan’s subversion of the Don’t Ask, Don’t Tell law.)

(To be clear, I do not share the widely held view that the Solicitor General is somehow generally obligated to defend the constitutionality of any federal statute for which reasonable arguments can be made.  It may well be prudent for a President to have the Solicitor General adopt that practice as a matter of policy, but the decision, properly understood, is the President’s to make.  But there’s nothing to commend in purporting to apply the practice while actually working to sabotage the federal statute, nor in breaking promises you’ve made to get confirmed.)