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Kagan’s words, over the years

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On Nov. 10, 1980, in the Daily Princetonian, after Democrat Elizabeth Holtzman lost a Senate race:

“Where I grew up — on Manhattan’s Upper West Side — nobody ever admitted to voting Republican. The real contests for Congress and the state legislatures occurred in early September, when the Democratic primary was held. And the people who won those races and who then took the November elections with some 80% of the vote were real Democrats — not the closet Republicans that one sees so often these days but men and women committed to liberal principles and motivated by the ideal of an affirmative and compassionate government.

“Perhaps because of this background, I absorbed such liberal principles early; more to the point, I have retained them fairly intact to this day. And that was why at 12:45 Wednesday morning, when I listened to Liz Holtzman hoarsely proclaim that “the only thing I intended to lose in this campaign is my voice,” I wanted desperately to believe her. And that was why, at 5:00 that same morning, when I finally realized that her faith just wasn’t going to be confirmed, I sat down and cried.”

In a 1995 review of Stephen Carter’s book on confirmation hearings for Supreme Court justices, “Confirmation Messes, Old and New”:

“When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public....

“It is an embarrassment that the president and Senate do not always insist … that a nominee’s previous accomplishments evidence an ability not merely to handle but to master the ‘craft’ aspects of being a judge.... It should be no surprise by now that many of the votes a Supreme Court justice casts have little to do with technical legal ability and much to do with conceptions of value.... The president and Senate themselves have a constitutional obligation to consider how an individual, as a judge, will read the Constitution: That is one part of what it means to preserve and protect the founding instrument.”

In a 1997 memo to President Clinton urging him to support a bill to limit late-term abortions:

“We recommend that you endorse the … amendment in order to sustain your credibility … and prevent Congress from overriding your veto. You have spent many months calling on Congress to pass a bill that contains a sufficiently protective but also appropriately confined health exception — as you said in a letter to the cardinals, not a health exception that ‘could be stretched to cover most anything’ but a health exception that ‘takes effect only where a woman faces real, serious adverse health consequences.’ …It will be difficult for you to make the case that [the amendment] does not adequately safeguard women’s health. In these circumstances, declining to support the amendment will weaken your position and increase the chance that Congress will override your veto.”

In 2009, from written answers to questions at her confirmation hearing for solicitor general:

Does she support the death penalty and believe it is constitutional?

“I am fully prepared to argue, consistent with Supreme Court precedents, that the death penalty is constitutional … [N]othing about my personal views regarding the death penalty … would make it difficult for me to carry out the solicitor general’s responsibilities in this area.”

Does she think the courts should take the lead in creating a more just society?

“I do not agree with this view. I think it is a great deal better for the elected branches to take the lead in creating a more just society than for courts to do so.”

Should a judge’s values or beliefs factor into his or her constitutional interpretation?

“I think a judge should try to the greatest extent possible to separate constitutional interpretation from his or her own values and beliefs.”

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