Is Kagan Really More Liberal than Justice Brennan?

John Park / June 29, 2010

Elena Kagan is a notably opaque Supreme Court nominee. In order to perform their constitutional function, the members of the Senate will have to reach a conclusion about her views and whether they are in the mainstream. Certain of the documents that she has generated give clues that lead to disturbing answers.

One such document is her 1987 memorandum to Supreme Court Justice Thurgood Marshall regarding the petition for certiorari in Pughsley v. O’Leary, written while she was one of his clerks.  In that memo, Kagan demonstrates how far out of the mainstream some of her views can be, writing, “In his petition for cert, petr [i.e., petitioner] attacks the standard set forth in Strickland v. Washington to govern ineffective assistance claims.  I’d like to reverse Strickland too, but something tells me this court won’t buy the idea.” (Emphasis added.)

In its 1984 decision in Strickland, the Supreme Court established the standard for determining whether the attorney for a criminal defendant competently defended his client.  The Sixth Amendment to the Constitution provides, in part, “In all criminal prosecutions, the accused shall enjoy the right to have . . . the Assistance of Counsel for his defense.”  In 1970, the Supreme Court explained that “the right to counsel is the right to the effective assistance of counsel.”  The corollary to that proposition is that a criminal defendant whose attorney does not provide effective assistance may be entitled to have the conviction set aside. (more…)