The Spectacle Blog

What Does Kagan’s Record As SG Tell Us? Not Much.

By on 5.10.10 | 8:27AM

Radley Balko unloads on Elena Kagan this morning, noting all the times she's sided with the government as Solicitor General. While he may well be right that Kagan will be relatively friendly to the executive branch, this line of argument is a bit misleading. As Tom Goldstein puts it in SCOTUSblog's long dossier on Kagan:

Some critics (and supporters) attribute to Kagan views on certain legal issues based on positions she took as Solicitor General. That criticism (and praise) is misguided. The Solicitor General acts as the attorney for the United States and therefore asserts the position of the government, without regard to whether she personally shares the same view. For Kagan not to have zealously pursued the interests of the United States in each case would have been an abdication of her duties. There are only a few exceptions - rare throughout our history - in which the Solicitor General concludes that the government's position has no reasonable basis and therefore refuses to assert it; Kagan has not participated in such an extreme case.

Radley has half a point when he says the the Solicitor General's office "could at the very least have merely remained silent" on cases where a federal law was not directly challenged, but only half. Part of the SG's mandate is to file amici curiae in any case where the federal government has an interest in the legal issue at stake; that the SG's office would chime in when states are sued over criminal statutes is hardly surprising, as the constitutionality of state law and of federal law are related.

Serving as Solicitor General might make one more pro-government, just as the experience of being a defense attorney might make one more sympathetic to defendants. But to use the arguments that Kagan has advanced as SG to guess what positions she'd take on the bench is to make quite a leap.

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