At a time when the ideal Supreme Court nominee comes coated in Teflon, the better to fend off partisan attacks, Elena Kagan has a pretty good resume.

At a time when the ideal Supreme Court nominee comes coated in Teflon, the better to fend off partisan attacks, Elena Kagan has a pretty good resume. 3

By Chris Mondics. At a time when the ideal Supreme Court nominee comes coated in Teflon, the better to fend off partisan attacks, Elena Kagan has a pretty good resume.

She has never served as a judge and her writings reveal little about how she would rule on the most ideologically divisive issues of the day. The absence of any meaningful paper trail, apart from things such as her decision as Harvard Law School dean to ban military recruiters, makes her less of a target.

Yet there is one legal case in Kagan’s background that to a small group of litigants constitutes a profound distortion of justice, a slap in the face that they say stings even now, one year later.

And they contend that the Senate Judiciary Committee should keep this case in mind, painful though it may be to revisit the matter, as it reviews Kagan’s nomination in the coming weeks.

It was on May 29 of last year that Kagan – as U.S. solicitor general – filed legal papers with the Supreme Court urging it not to hear arguments in a lawsuit against the government of Saudi Arabia brought by thousands of family members and other victims of the Sept. 11, 2001, terrorist attacks.

Days later, the Supreme Court rejected the case, following the lead of the solicitor general, as it often does in deciding whether to weigh in on a matter.

The Supreme Court decision effectively let stand lower-court rulings that the Saudi government and senior members of the Saudi royal family could not be sued by U.S. citizens – even if the plaintiffs had shown that millions of dollars in Saudi government money went to bankroll al-Qaeda in the years leading up to the Sept. 11 attacks.

“We were terribly disappointed with her ruling,” said Beverly Burnett, of Northfield, Minn., whose son, Tom, perished on United Flight 93 when it went down near Shanksville, Pa. “We had hoped she would be with us so that we could have our day in court.”

What Burnett and many others desperately want to know is why, after evidence that some believe points to Saudi government responsibility for the attacks, they so far have been barred by U.S. courts from having their case heard.

And why the Obama administration argued, through Kagan, that their case should not be heard.

Burnett and the other plaintiffs alleged in lawsuits brought by several law firms, including the Center City firm of Cozen O’Connor P.C., that for years the Saudi government funded Islamist charities that in turn supplied money and logistical support to al-Qaeda fighters in the Balkans and Southeast Asia.

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