Thursday, May 13, 2010

Supreme Court Nominee Elena Kagan

By now you have all probably heard about Elena Kagan, President Obama's nomination to replace Justin Stevens on the Supreme Court. Although her confirmation hearings have not yet began, I decided to make some predictions, based upon her career thus far, about her business and tax views.

No Tax Records

It is very difficult to determine exactly what impact Kagan would have on the U.S. tax code because, if confirmed, she would be the first Supreme Court Justice—in nearly four decades—to serve without any prior experience as a judge.

Respected Member of the Law Community

Kagan has a Bachelor's degree in history from Princeton, a Masters in Philosophy from Oxford and a J.D. from Harvard. She was a professor at the University of Chicago Law School, before being appointed as dean of Harvard Law School. Kagan is a highly respected member of the legal community.

Clerking Experience

Kagan worked as a clerk for Judge Abner Mikva, as well as Justice Thurgood Marshall. Mikva is widely known as a very progressive member of the DC Court of Appeals, which has led many to believe that Kagan will be progressive if confirmed to the U.S. Supreme Court. However, because of her limited record on social and fiscal issues this is merely an assumption.

Pro Shareholders as Solicitor General

Although she has never served as a judge, Kagan has been serving as Solicitor General since Obama took the White House. During her time as Solicitor General, she joined lawsuits on the side of shareholders against companies and mutual funds. According to Bloomberg, prior Solicitor Generals did not side with shareholders, leading many in the business community to consider her nomination as a slap in the face to many large corporations.

Social Justice

Although we do not know much about her tax views, according to A Taxing Matter, Kagan wrote her senior thesis at Princeton on the socialist movement in New York City in the early 20th century. Therefore, we can predict that Kagan is at least informed about arguments for social justice in our "capitalist-based economic system."

Furthering Obama's Tax Agenda

Kagan has been considered as a possible Supreme Court Justice since Obama won the election in 2008. As this article published last month on NY explains, Kagan is known for supporting "assertions of executive power." Therefore, we could expect that she would support Obama's tax agenda if confirmed to the U.S. Supreme Court, which could have significant impacts on the U.S. tax code.

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