Federal Courts and Nominations

Kagan at West Point: A Speech You Might Hear More About

 

Undoubtedly, over the next handful of weeks, as people pore over her papers and closely read her remarks, we’re going to learn more about Elena Kagan.

Already, her supporters are pointing to a speech she gave to cadets at West Point in 2007, while she was the Harvard Law dean, about the Constitution and the rule of law. (In this Huffington Post story, Doug Kendall called the speech “powerful” and that it gave “powerful examples of what fidelity to the Constitution and the law entails.”

Some of the more interesting or provocative excerpts:

On giving the speech:

I don’t accept many outside speaking invitations; this may be the only talk of this kind that I’ll give this year. I accepted this invitation primarily to thank all of you senior cadets — and to wish you godspeed as you go forward to serve your country and your fellow citizens in the greatest and most profound way possible.

On Don’t Ask, Don’t Tell:

I have been grieved in recent years to find your world and mine, the U.S. military and U.S. law schools, at odds indeed, facing each other in court – on one issue. That issue is the military’s don’t-ask don’t-tell policy. Law schools, including mine, believe that employment opportunities should extend to all their students, regardless of their race or sex or sexual orientation. And I personally believe that the exclusion of gays and lesbians from the military is both unjust and unwise. I wish devoutly that these Americans too could join this noblest of all professions and serve their country in this most important of all ways.

On West Point’s Constitution Corner (pictured):

There is a remarkable place on this campus, which suggests what approach that the military should adopt, and indeed long has adopted – the approach, that is, of honoring the law and abiding by the constraints it imposes. The place, which I’m sure all of you know, is Constitution Corner. . . . Constitution Corner has five plaques . . . . The fifth plaque is titled “Loyalty to the Constitution,” and begins with the following statement: “The United States boldly broke with the ancient military custom of swearing loyalty to a leader. Article VI required that American officers thereafter swear loyalty to our basic law, the Constitution.”

I do not think I have ever come across a more moving tribute to the rule of

law.

On Communicating with Lawyers:

Insist that your lawyer understand your problems and their urgency. There’s nothing worse than a lawyer who just tells you no, without giving you any ways to achieve your most essential purposes. The best lawyers, even when they have to say no, explore with you and discover alternative possibilities – ways of complying with the law and accomplishing your principal goals. When lawyers don’t do this naturally, clients – that’s you – should force them to do so.

On When Not to Heed Lawyers’ Advice:

Don’t think that law is everything. Even when the lawyers clear something, it may not be the right thing to do. It may be unethical, even if it’s not illegal. Or it may be just plain dumb. I was amazed, when I worked in government, how often the legal question, once recognized, became the only question. That shouldn’t happen. It makes for bad policy. And frankly, it makes for bad law too, because when lawyers begin to think that they are effectively making the critical decisions, and not just advising on one aspect of them, they tend to stop thinking as lawyers – which, if the rule of law is to be maintained, someone has to do.

 

More from Federal Courts and Nominations

Federal Courts and Nominations
January 17, 2024

The Leadership Conference on Civil and Human Rights Sign-On Letter Prioritizing Diverse Judges

Dear Senator, On behalf of The Leadership Conference on Civil and Human Rights and the...
Federal Courts and Nominations
July 31, 2023

Liberal justices earn praise for ‘independence’ on Supreme Court, but Thomas truly stands alone, expert says

Fox News
Some democrats compare Justice Clarence Thomas to ‘Uncle Tom’ and house slave in ‘Django Unchained’
By: Elizabeth B. Wydra, By Brianna Herlihy
Federal Courts and Nominations
July 7, 2023

In Her First Term, Justice Ketanji Brown Jackson ‘Came to Play’

The New York Times
From her first week on the Supreme Court bench in October to the final day...
By: Elizabeth B. Wydra, by Adam Liptak
Federal Courts and Nominations
July 8, 2023

The Supreme Court’s continuing march to the right

CNN
Major legal rulings that dismantled the use of race in college admissions, undermined protections for...
By: Elizabeth B. Wydra, by Tierney Sneed
Federal Courts and Nominations
June 25, 2023

Federal judge defends Clarence Thomas in new book, rejects ‘pot shots’ at Supreme Court

CNN
A federal appeals court judge previously on short lists for the Supreme Court is taking the rare...
By: Elizabeth B. Wydra
Federal Courts and Nominations
May 1, 2023

Supreme Court, done with arguments, turns to decisions

Roll Call
The justices have released opinions at a slow rate this term, and many of the...
By: Brianne J. Gorod, By Michael Macagnone