Elena Kagan: '10th justice' has deep legal knowledge but no bench experience

The Washington Post's Robert Barnes discusses Solicitor General Elena Kagan's non-judicial background and looks ahead to the confirmation hearings on Capitol Hill.
By Robert Barnes
Washington Post Staff Writer
Monday, May 10, 2010; 7:16 AM

The woman President Obama has chosen to be the 112th justice of the Supreme Court has never been a judge -- not that it was of her own choosing.

Elena Kagan was 39 when President Bill Clinton nominated her for a seat on the U.S. Court of Appeals for the D.C. Circuit, sometimes referred to as the second most important court in the land. The Republican-controlled Senate never brought her nomination for a vote before Clinton's presidency expired.

Kagan, now 50, went on to become the dean of Harvard Law School, and despite the lack of judicial experience, her name has appeared on every list of people a Democratic president should consider for the high court.

The expectation only grew when Obama made Kagan, a native New Yorker, the first woman to be named as solicitor general, the government's top appellate lawyer and representative at the Supreme Court.

Again, the lack of specific experience did not hold her back. She had never argued an appeal before she got the job. She has now argued six cases before the Supreme Court, and been the government's chief strategist in legal appeals both at the high court and around the country.

Even though the solicitor general is often called "the 10th justice," she would be the first to join the court since Thurgood Marshall in 1967. It would be especially sweet for Kagan, who was a clerk for the civil rights icon in 1987-88, has referred to him as "the most important lawyer, I think, of the 20th century." He nicknamed her "Shorty."

"She is a first-rate legal scholar, but she brings much more than that," Walter Dellinger, an acting solicitor general under Clinton, said when she was nominated as the first woman to hold his old job. "She knows government, and she knows how to run institutions."

She was confirmed by the Senate 61 to 31 in March 2009, with the support of each of the last eight men who have held the title, Democrats and Republicans alike, starting with President Ronald Reagan's solicitor general, Charles Fried, who calls her "awesomely intelligent."

Republicans questioned her experience and some complained that she was not more forthcoming in her answers during her hearings.

Kagan said the job of solicitor general is not one that requires her to have opinions, except about how to best defend federal statutes and the positions of the Obama administration.

"I do not think it comports with the responsibilities and role of the solicitor general for me to say whether I view particular decisions as wrongly decided or whether I agree with criticisms of those decisions," she repeatedly said.

As solicitor general, she has argued some of the most important constitutional challenges to congressional actions. Despite the lack of experience, she has from the beginning displayed a confident, at times conversational, style.

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