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

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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.

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Kagan says she has "no reason to believe that the court's analysis was faulty" in the justices' 5 to 4 ruling that the Second Amendment provided the right for private gun ownership, but also adopted the view of her predecessor in the George W. Bush administration that her office would continue to defend federal restrictions on some firearms.

Kagan was educated at Princeton, Oxford and Harvard Law, and is 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 has never married and has no children.

After clerking for Marshall, she worked for two years in the Washington offices of Williams & Connolly, her only private legal experience.

She left to teach 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.

When the Senate failed to act on her 1999 nomination to the appeals court, the seat eventually went to Roberts, now chief justice.

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, 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 from across the ideological spectrum.

"No dean of any modern American law school has done what she's done," Tribe said.

Kagan stood up to faculty unease over the hiring of Jack L. Goldsmith, who for a time had led the Office of Legal Counsel under Bush. Kagan also recruited Cass R. Sunstein, a prolific legal scholar and Obama friend from the University of Chicago.

"She is very, very highly respected by everybody I know," said Theodore B. Olson, a former Bush solicitor general who is a stalwart of the Federalist Society. He said Kagan has been "very gracious" to conservative students and faculty at Harvard, "and that isn't always the case at law schools around the country."

The most controversial position in her background is the strong stand she took in challenging the Solomon Amendment, which required universities that received federal funding to cooperate with military recruiters on campus.

In filing a friend of the court brief opposing the 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, and the position she took in Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) was unanimously rejected by the court.

She said during her solicitor general hearings that she thought the government would be on solid legal ground in defending the "don't ask, don't tell" policy.


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