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

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.

She has stood up to tough questioning from the justices, matched their challenges and fared better with some than others. Those who regularly watch the court perceive a sometimes scratchy relationship with Chief Justice John G. Roberts Jr., one of the court's sharpest questioners, when he disagrees with the advocate.

In Kagan's first argument, Citizens United v. Federal Election Commission, she held her own with Justice Antonin Scalia, who is one of the court's great skeptics of Congress's ability to remain impartial in writing laws that affect political campaigns.

"We are suspicious of congressional action in the First Amendment area precisely because we -- at least I am -- I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents. Now is that excessively cynical of me? I don't think so."

Kagan replied: "I think, Justice Scalia, it's wrong. In fact, corporate and union money go overwhelmingly to incumbents. This may be the single most self-denying thing that Congress has ever done."

Sometimes, the familiar tone does not work. When Scalia questioned her argument in a different case, she asked him how he might argue differently.

"Well, I'm not making the argument," he responded.

Roberts jumped in to say, "Usually we have the questions the other way."

"I apologize," a chastened Kagan said.

It is premature to say how the government has fared under her leadership because the court has not yet released even half of its opinions. The government lost the Citizens United case 5 to 4, and Obama and Senate Democrats have criticized the court's conservatives for an "activist" opinion that overturned court precedent.

Some groups on the left have criticized Kagan for defending Bush administration policies that seek to limit the rights of Guantanamo Bay detainees and agreeing that terrorism suspects may be detained indefinitely.

It was clear during Kagan's confirmation hearings last year that lawmakers recognized she might one day be sitting before the committee as a Supreme Court nominee. She ventured only safe answers that were built on respect for the court's precedents rather than her own reading of the law or the Constitution.

She did say that she did not believe there was a constitutional right to same-sex marriage -- the court has not ruled on such an issue -- and that she was not "morally opposed" to capital punishment. She agreed with Republicans senators that the country was at war, and said she did not believe detainees being held in Afghanistan had the right to due process, as the court has ruled for those at Guantanamo Bay.

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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