Kagan Fact Sheet

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Background Information

Elena Kagan, who currently serves as US Solicitor General, is the past Dean of the Harvard Law School, as well as Associate Counsel and Deputy Assistant to the President for Domestic Policy under President Clinton.  She is 50 years old and a native of New York.


  • Kagan has never served as a judge at any level. 
  • Her only courtroom experience comes from her short tenure as Obama’s Solicitor General.
  • Kagan didn’t argue a case before the Supreme Court until 2009.  Further, she has never even fully litigated a case.

Gay Rights:

  • Kagan has been endorsed by the pro-homosexual rights Human Rights Campaign, (which specifically stated her support for “marriage equality” as the reason for its support).
  • As the Dean of Harvard Law, Kagan led the effort to bar military recruiting on campus in protest of the military’s ban on open homosexuality in the military.  She referred to it as a “moral injustice of the first order”.  The “Don’t Ask,Don’t Tell” law was passed by Congress and signed into law by President Clinton in 1993.
  • Her intense opposition led her to fight the issue all the way to the Supreme Court with a 2005 amicus brief in a case against the federal law that bans federal taxpayer funding for institutions that discriminate against military recruiting.  The Supreme Court ruled against her position 8-0.
  • In a recent federal Defense of Marriage Act (DOMA) case, Kagan amended a government brief in the case by eliminating “responsible procreation” as a reason for DOMA.  In other words, the government’s chief attorney removed procreation or the well being of children as the federal government’s stated reason’s for the law’s existence.

Judicial Confirmations:

  • In 1995, Kagan called for more in  depth questioning of judicial nominees, saying that the Senate should “engage nominees in meaningful discussion of legal issues”. 
  • She lauded the Senate Democrat’s 1986 treatment of Robert Bork, stating, “the essential rightness – the legitimacy and the desirability – of exploring a Supreme Court nominee’s set of constitutional views and commitments”.


  • Kagan’s nomination has been endorsed by Planned Parenthood, NARAL and NOW
  • As an advisor to President Clinton, during the controversy over banning partial birth abortion, Kagan wrote a memo encouraging Clinton to sign a weak bill that was full of exceptions so Democrats in Congress could appear to be pro-life and would not be politically forced to override Clinton’s veto of the stronger “Partial Birth Abortion Ban Act”, (which was later signed into law by President Bush).
  • Kagan was a member and contributor to the National Partnership for Women and Families (NPWF), who’s stated goal is “to increase women’s access to…reproductive health services and block attempts to limit reproductive rights…and to give every woman access to…abortion services”.  NPWF is also strongly tied to EMILY’s List, the pro-abortion political action committee.

Second Amendment Rights:

  • While working for President Clinton, Kagan drafted an executive order which would restrict the importation of certain semi-automatic assault rifles.”
  • According to Bloomberg, “Elana Kagan said as a US Supreme Court law clerk in 1987 that she was ‘not sympathetic’ toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed pistol.”


  • It has been noted that, throughout her career, Kagan has avoided creating a “paper trail” of writings that pin her down on controversial issues and make it difficult for her to be appointed as a judge.
  • Tom Goldstein, a high profile Supreme Court litigator who has known Kagan for years stated, “I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.”