Elena Kagan, President Obama's nominee for the U.S. Supreme Court, is currently undergoing her confirmation hearing before the Senate Judiciary Committee. During the hearing, she will be questioned about a wide range of legal and political issues, which may include government transparency. Kagan's arguments in several transparency-related cases as Obama's Solicitor General may offer some insight into her approach to open government. However, because she has argued those cases from the administration's perspective, her personal legal views on transparency are difficult to assess. It is, therefore, hard to predict how she may rule in transparency-related cases if confirmed as a justice.

Kagan was nominated by President Obama on May 10 to replace retiring Justice John Paul Stevens. Kagan attended both Princeton and Oxford University before obtaining her law degree from Harvard Law School. She first worked in a political capacity in 1993 when she was special counsel to then-Sen. Joe Biden, but she spent most of her early career in academia. In 1995, she joined the Clinton administration and held a variety of positions until 1999, when she returned to teaching. In 2009, she was nominated by President Obama to be Solicitor General, the position she currently holds.

Although she has never been a judge, Kagan, as Solicitor General, has been the primary federal government attorney arguing cases at the Supreme Court. It is her role to decide which cases the government takes to the Court and how they are argued. Kagan had reportedly been considered for the seat vacated by Justice David Souter, but Sonia Sotomayor was ultimately named.

Kagan Has Sided with Secrecy

During her time as Solicitor General, Kagan has pursued five cases before the Supreme Court concerning application of the Freedom of Information Act (FOIA), the country's most fundamental open government law. In four of the five cases, she has argued in favor of government secrecy. Each time, the Court sided in favor of the government. The Court has not yet taken up the fifth FOIA case.

The most notable of the cases was Department of Defense v. American Civil Liberties Union, in which Kagan fought the release of photographs depicting the abuse of detainees while in U.S. custody. In her argument to the Supreme Court, Kagan stated, "In the judgment of the president and the nation's highest-ranking military officers, disclosure of the photographs at issue here would pose a substantial risk to the lives and physical safety of United States and allied military and civilian personnel in Iraq and Afghanistan." Kagan made this assertion despite the fact that the administration had already released Justice Department memoranda that detailed the policy and actions of U.S. personnel in torturing detainees because "the existence of that approach to interrogation was already widely known." In that case, the Supreme Court overturned a lower court decision to release the photographs.

In a different case, Kagan argued that it would violate physicians' privacy to release Medicare data on claims paid. Kagan's argument in Consumers' Checkbook v. Dept. of Health and Human Services was that the information could be combined with other publicly available Medicare fee information to figure out how much a physician earned each year. Consumers' Checkbook had argued that physicians' privacy did not outweigh the public interest in using the data to measure physician experience, quality, and efficiency. The Supreme Court refused to overturn a ruling from the Court of Appeals for the DC Circuit, which sided with the government and allowed the records to be withheld. The Court of Appeals decision had reversed the original ruling of the U.S. District Court for the District of Columbia, which found in favor of Consumers’ Checkbook and ordered the agency to release the records.

In two other FOIA cases, Kagan argued against disclosure of records sought by the public. Loving v. Department of Defense concerned a request for documents relating to the president's review of a military death sentence, and Berger v. Internal Revenue Service involved a request for an IRS officer's time sheets. In both of these cases, the Supreme Court chose not to review the cases, essentially siding with Kagan by default and letting the lower courts' rulings to withhold the information stand.

Kagan Has Limited the Use of Privacy Claims to Hide Corporate Information

In another case, Kagan has argued against the idea that corporate information held by the government qualified for privacy protections. Government agencies are prohibited from disclosing records, even under FOIA, if the information would constitute an invasion of personal privacy. Corporations have attempted to extend this exemption for individual privacy to their corporate records.

In a fifth FOIA case, Federal Communications Commission v. AT&T Inc., which the Supreme Court has not yet taken up, Kagan argued that corporate data in the possession of the U.S. government was not subject to the privacy exemption of FOIA requests. She put forth that the public has a right to information concerning corporate malfeasance in government programs. The lower court, the Third Circuit Court of Appeals, rejected this argument and sided with AT&T. The government appealed the Third Circuit ruling to the Supreme Court. If confirmed and the Court takes up the case, Kagan will have to recuse herself because of her past involvement.

Much of Kagan's existing arguments in favor of secrecy may be more the opinion of the administration than her own. On the issue of the torture photographs, for example, Attorney General Eric Holder testified before Congress in June 2009 that the administration would appeal to the Supreme Court any lower court decision to release the photographs. This may indicate a larger administration policy of withholding such records rather than the position of any one person, including Kagan. Thus, while her arguments in important transparency-related cases may offer us some insight, how Kagan would ultimately rule in future transparency cases as a Supreme Court justice is difficult to predict.