President Obama announced today that he would nominate Solitor General Elena Kagan to the United States Supreme Court. If confirmed, Ms. Kagan will be the first Supreme Court justice without prior judicial experience since the Nixon administration. While much of America will be focusing on hot button issues such as abortion and gun control, bankruptcy lawyers will be wondering what she thinks about the hanging paragraph. However, her history does not provide much illumination.
Since Ms. Kagan was not a judge, she does not have a body of written opinions to peruse. Her academic writings dealt primarily with constitutional law issues.
As Solicitor General, her department has appeared in three bankruptcy cases this term: Espinosa, Lanning and Milavetz. However, she did not personally argue any of these cases. In Espinosa, the Solicitor General's office argued that the student loans were not discharged, a position the Supreme Court rejected. In Milavetz, her office contended that the Debt Relief Agency provisions were constitutional, a position adopted by the Supreme Court. Finally, in Hamilton v. Lanning, the Solicitor General's office agreed with the debtor that projected disposable income must be forward-looking, that is, that adjustments may be made based on changes in circumstance likely to occur. Of these three cases, Lanning is the only one in which there was not a clear governmental interest.
However, her record is not totally devoid of bankruptcy connections. While at Harvard Law, she had Liz Warren as a colleague. Anything that she picked up from Liz would serve her well on the Supreme Court.