Harvard Dean, Chosen as Solicitor General, Goes Before Senators

No substantial opposition to Elena Kagan.
No substantial opposition to Elena Kagan. (Kathleen Dooher - AP)
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By Robert Barnes
Washington Post Staff Writer
Tuesday, February 10, 2009

When Harvard Law School hosted a huge dinner a few years ago for the conservative Federalist Society, the school's dean, Elena Kagan, received such long and enthusiastic applause that she felt compelled to hold up her arms in mock protest.

"You are not my people," she said to laughter -- and more applause.

Kagan will try to retain the reputation as the liberal whom conservatives could like when the Senate Judiciary Committee today considers her nomination to become the nation's solicitor general, the "10th justice" who represents the government before the Supreme Court and the nation's appeals courts.

President Obama's choice is the first woman nominated for the job, and she has the support of each of the last eight men who have held the title, starting with President Ronald Reagan's solicitor general, Charles Fried, who calls her "awesomely intelligent" and recounted the Federalist Society dinner story for the Senate committee.

No substantial opposition to her appointment has emerged, although conservative groups have stepped up the pressure on committee Republicans to scrutinize Kagan and other Justice Department picks and criticized what they say are Democratic efforts to move the nominations too quickly.

Sen. Jeff Sessions (R-Ala.) warned last week that Obama planned to turn the department into a "liberal bastion" and pointed out that the sole Supreme Court amicus brief that the 48-year-old Kagan has signed was one challenging the Solomon Amendment, which required universities that received federal funding to cooperate with military recruiters on campus.

"Americans expect each of these nominees to be thoroughly vetted, particularly in light of the administration's recent vetting mishaps," a GOP committee aide said. Kagan is also likely to be questioned on her views of the Constitution.

But senators may want to know about Kagan's legal philosophy not just because of her pending nomination but for the future. Hers is a name found on most lists of potential Supreme Court nominees, an issue that has become more pertinent because of the ages of some of the justices and Justice Ruth Bader Ginsburg's recent disclosure that she is being treated for pancreatic cancer.

Kagan has not written extensively or taken public positions on issues such as the executive power claims or counterterrorism policies of the Bush administration. Like other nominees, she declined to be interviewed for this article.

Her widely praised tenure as dean of the law school was marked by an openness to a wide range of legal views.

"She's not a philosopher," said Fried, a member of the Harvard faculty. "I think the word used these days is 'progressive,' but that's her own orientation, not one she necessarily looks for in others."

Kagan is Princeton, Oxford and Harvard Law educated, and such a product of New York City that she did not learn to drive until her late 20s. According to her friend John Q. Barrett, a law professor at St. John's University, it is a skill she has not yet mastered.

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