The Curious Case of Elena Kagan

In France, judges are appointed by the government. In the United States, the President nominates them, and Congress approves. Congress alone decides whether to approve the White House’s choice and whether to confirm the judge to the Supreme Court.

At this time, the White House and the Senate are preparing for weeks of hearings to confirm Elena Kagan to the Supreme Court. Not exactly a walk in the park.

Bill Clinton’s presidential archives have released this week no less than 11,000 emails written and sent by Elena Kagan, while she worked for W.’s predecessor, and tens of thousands of others that were composed during her time in the Clinton administration. We are far from “French democracy.”

The hearings for Kagan, the former dean of the prestigious Harvard Law School, before the Senate Judiciary Committee, will begin on June 28. For weeks, the members of the Committee and their lawyers will pry open the life of Elena Kagan, her writings, the contents of her lectures, her speeches, her correspondence, at least the public part of her life. A lifetime scrutinized by state departments, private investigators, and even the FBI.

The publication of these emails reveals a sarcastic, demanding personality, with strong opinions for a 37-year-old lawyer in the President’s service. For example, in a message to one of her colleagues, she wrote: “[O]n memos to the president, it’s usually wise to spell-check.” When asked what the former First Lady, Hillary Clinton, would talk about during a speech she was scheduled to deliver in Baltimore, Kagan contended: “I’m generally not in favor of the FLOTUS announcing policy unless it’s in one of her areas (e.g. child care).”

In a message from 1996, the future Supreme Court judge reveals that she doesn’t believe that financial contributions by companies to political campaigns are protected by the First Amendment, which guarantees freedom of expression—an opinion inconsistent with the majority of the Court, which decided earlier this year that these contributions were protected, earning the judges a public rebuke during the last State of the Union address. Kagan wrote to Bill Clinton that, “This is a result of the Supreme Court’s view — which I believe to be mistaken in many cases — that money is speech and that attempts to limit the influence of money on our political system therefore raise First Amendment problems.”

The released messages reveal some curious things. For example, the subject of one of the emails is “Re: Two G-rated Jewish jokes.” But the two jokes are not included in the released messages.