Elena Kagan: Supreme Court Nominee Raises Questions

May 10, 2010

Elena Kagan, United States Solicitor General was nominated today to the United State Supreme Court to fill the vacancy created by the retirement of Justice John Paul Stevens.

Here,we examine just two aspects of her professional views related to sex offender laws.

1. The Marshall Memo: In 1993, Kagan wrote a memo praising former Supreme Court Justice Thurgood Marshall, for whom she had clerked and whom had just died. At the time, Kagan quoted from a speech Marshall gave in 1987 in which he said the Constitution as originally conceived and drafted was “defective.” She quoted him as saying the Supreme Court’s mission was to “show a special solicitude for the despised and the disadvantaged.”

If you truly believe this, Ms. Kagan, then surely the societal and legislative attacks on registered sex offenders stands as the penultimate example of a class of citizens who are currently “despised and disadvantaged” in this nation.

2. Solicitor General Elena Kagan, the administration’s top courtroom lawyer, urged the justices to uphold a 2006 federal law providing for the continued detention of sexually dangerous federal inmates who have completed their prison terms. In United States vs. Comstock, argued before the U.S. Supreme Court in January 2010, she acted on behalf of the U.S. government to argue that the federal government has the power to imprison citizens after they have completed their prison terms. Kagan argued in favor of civil commitment of “sexually dangerous” people after they complete their federal prison terms.

This should raise a large red flag to anyone favoring her appointment to SCOTUS. If she favors indefinite confinement of sex offenders by the government well beyond their prison terms, she is not qualified to be a judge who has the obligation to uphold, defend and protect our Constitutional rights.

Sources:
reuters.com: U.S. justices question sex offender confinement law.
abajournal.com: Sex-Offender Case Is Test of Necessary and Proper Clause.
stlbeacon.org: Sex offenders: Lock ’em up and throw away the key?

Elena Kagan, arguing for the government, compared the indefinite detention of sex offenders to quarantining those infected with “some very contagious form of drug resistant tuberculosis.” In the case of a TB infection, Solicitor General Kagan said, we’d say the government has the power to hold the person for the safety of society. Justice Stevens picked up on the analogy and pressed the attorney on the other side: Doesn’t the federal government have the power to quarantine?

The idea that sex offenders are not like ordinary criminals but somehow sick or diseased and have to be segregated from the general population is a powerful one and may operate as a subterranean motivation for much legislation in the area. But the analogy also discloses an ambivalence about how we think about sex offenders. Are they like ordinary criminals (bank robbers, reckless drivers, etc.) who should be punished and then released? Or are sex offenders more like people who are ill, who need treatment and care — perhaps indefinite treatment and care — rather than punishment?

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