National Consumers League

What would Kagan mean for consumers and workers?


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By Sally Greenberg, NCL Executive Director So Elena Kagan is the President’s pick for Supreme Court Justice? Kagan is the current Solicitor General of the United States, and she brings a wealth of credentials to the Court - but what does her nomination mean for NCL’s constituency, consumers and workers? That’s hard to know because Kagan has never served as a judge and therefore has no “paper trail” of decisions revealing her judicial philosophy. Nan Aron, head of the Alliance for Justice, on whose board NCL sits, is backing the nomination. The Alliance statement says that Kagan “will bring to the Court a respect for core constitutional values and a willingness to stand up for the rights of ordinary Americans. Her appointment also represents an historic step forward as women continue to take their rightful place on the highest court in the land.” The AFJ statement goes on to say “…we urge the Senate Judiciary Committee to use the confirmation process to directly address the bread-and-butter issues that come before the Court and which affect the lives and livelihoods of the American people.” NCL agrees with that sentiment, but we still don’t know much about Kagan’s thinking on forced mandatory arbitration in consumer contracts, or consumer access to the courts that has been severely eroded in states across the country by so-called tort reform measures capping damages or statutes of limitations on faulty products. Or on worker health and safety, their pensions or their right to organize. The Service Employees Union International, SEIU, which has a seat on the NCL Board of Directions, said about Kagan: "As the daughter of a public school teacher and a lawyer who defended the rights of tenants, Elena Kagan understands first-hand the direct impact courts have on people's lives. Her commitment to fairness and to justice for everyday people has earned her respect across the ideological spectrum. The SEIU statement goes on to say:

"The people deserve justices like Kagan - justices whose allegiance to equal justice and the rule of law trumps politics and corporate influence. And, nothing could be more important than restoring the Court's commitment to these principles.”
This morning’s New York Times also noted that Kagan’s brother was a union organizer and both her brothers are schoolteachers in New York City today, and presumably union members. We agree with both the Alliance for Justice and SEIU that Kagan has promise as someone who will support the rights of consumers and workers, but as the Times editorial, headlined “Searching for Elena Kagan”  asks, “where precisely, has Ms. Kagan been during the legal whirlwinds of the last few years, as issues like executive power, same sex marriage, the rights of the accused and the proper application of the death penalty have raged through the courts?. .. Her positions are unclear- or possibly to the right of Justice Stevens.” This president is putting his faith in Kagan to be a Supreme Court justice who embodies his ideals. During the campaign, he described how we would choose nominees to the high Court:  And we need somebody who's got the heart — the empathy — to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor or African-American or gay or disabled or old -- and that's the criteria by which I'll be selecting my judges.  We will see in the days to come – and if she is confirmed, from her service on the court, whether Elena Kagan meets the President’s test. NCL hopes she does – the rights and protections of workers and consumers depend on it.