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.
She clerked at the Supreme Court for Justice Thurgood Marshall, whom she described after his death as "the most important -- and probably the greatest -- lawyer of the 20th century." Except for a two-year stint in the Washington offices of Williams & Connolly, she has spent her career in government and academia, and has a prominent gap in her deep résumé: She has never argued a case at the Supreme Court or in any appeals court.
Instead, she taught law at the University of Chicago, where she was part of a group that tried to interest a part-time constitutional law lecturer named Barack Obama in committing to a full-time life in academia. She joined the Clinton administration, first as an associate counsel and then as a domestic policy adviser. "Wonderwonk" was the title of the article the New Republic wrote about her role when the administration worked with Sen. John McCain (R-Ariz.) to try to give the government more regulatory power over tobacco.
President Bill Clinton nominated her for a spot on the U.S. Court of Appeals for the D.C. Circuit, but the Republican-controlled Senate never brought her up for a vote.
She joined the Harvard faculty as a professor and was shortly named dean. She's won widespread praise for bringing peace to warring factions of the faculty and has, in the words of faculty member and liberal scholar Laurence H. Tribe, "transformed a school that was much less than the sum of its parts" when she arrived.
She made the school friendlier to students with free coffee and a volleyball court, enacted financial incentives to encourage public service after graduation, began an ambitious effort to revamp the curriculum and went on a hiring binge to bring to Cambridge superstar legal scholars across the ideological spectrum.
"No dean of any modern American law school has done what she's done," Tribe said.
In filing a friend of the court brief opposing the Solomon Amendment, she and others at Harvard argued that the military's ban on gays violated the law school's right to prohibit employers who discriminate on the basis of sexual orientation.
After the U.S. Court of Appeals for the 3rd Circuit ruled the amendment unconstitutional, she directed the school's Office of Career Services to stop providing help to military recruiters, although she said in a letter to the faculty that the military retained full access to students through the Harvard Law School Veterans Association.
Kagan called the military's ban on gays "a moral injustice of the first order," adding, "The importance of the military to our society -- and the extraordinary service that members of the military provide to all the rest of us -- makes this discrimination more, not less, repugnant."
She relented when the case moved to the Supreme Court.
If confirmed, Kagan will hope that experience with the justices is not predictive. In the case, Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), the Supreme Court ruled unanimously against the law schools.
Staff writer Carrie Johnson and research editor Lucy Shackelford contributed to this report.