Kagan’s late-’80s paper trail

KAGAN’S LATE-’80S PAPER TRAIL…. With Supreme Court nominee Elena Kagan never having served as a judge, the paper trail that would offer us some hints about her ideology is limited. It’s one of the factors that has caused some consternation on the left about the president’s selection.

But there are some hints about the way in which Kagan approaches — or at least used to approach — key issues. The NYT‘s Charlie Savage notes Kagan’s work as a law clerk for Supreme Court Justice Thurgood Marshall, when she wrote several memos “analyzing petitions to the Supreme Court during its 1987-88 term.”

Those documents, housed at the Library of Congress, constitute a rare paper trail that provides insight into her early legal policy views. Largely written with a liberal sensibility on a variety of matters from criminal rights to environmental regulations, the memorandums could provide ammunition to conservative critics of her nomination, while comforting liberal skeptics. […]

Several such memorandums suggested a friendly attitude toward the view that the Constitution contains unwritten rights protecting personal liberty — the so-called substantive due process doctrine that formed the basis of several famous liberal rulings, like a 1973 decision striking down abortion bans. […]

Another recurrent theme was a generally liberal approach to law-enforcement issues…. Another case suggested that she looked favorably on expansive interpretations of environmental regulations.

A piece from CBS News, scrutinizing the same memos, concluded that Kagan stood “shoulder-to-shoulder with the liberal left,” and will likely “give Republicans a few cards of their own to mount a strong fight against her.”

Perhaps. In fact, the memos from 22 years ago might also help ease concerns on the left about Kagan’s nomination.

The problem, of course, is that we just don’t know how much Kagan’s thinking in 1988 still reflects her views in 2010. The materials offer an encouraging hint, but probably not much else.