For Supreme Court nominee Elena Kagan, a history of pragmatism over partisanship

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 Amy Goldstein, Carol D. Leonnig and Peter Slevin
Washington Post Staff Writers
Tuesday, May 11, 2010

Just after Election Day the fall of her senior year at Princeton, Elena Kagan published an opinion piece in the campus newspaper recounting how she had wept and gotten drunk on vodka at a campaign gathering for a liberal Brooklyn congresswoman who had unexpectedly lost a race for the Senate.

Ronald Reagan was heading to the White House, and Rep. Elizabeth Holtzman -- a champion for women's causes for whom Kagan had toiled 14-hour days as a campaign press assistant -- was leaving Capitol Hill. Kagan, then 20 and imbued with the liberal principles on which she had been raised, said she was flirting with despair that "there was no longer any place for the ideals we held. . . . I wonder how all this could possibly have happened and where on earth I'll be able to get a job next year."

Her piece for the Daily Princetonian on Holtzman's 1980 defeat was a rare moment, then and since, in which Kagan publicly described her emotions and politics in such strikingly personal tones. In the elite spheres of academia and government in which she has learned and worked, Kagan, 50, has more typically exhibited an analytical style, a knack for forging consensus, a pragmatism rather than a passion for her own ideas.

Her life experiences and intellectual style leave open the question of whether President Obama's choice for the Supreme Court would, if confirmed by the Senate, prove the counterweight liberals seek to the overt conservatism of Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel A. Alito Jr.

"She's much more of a lawyer than a partisan," said Geoffrey R. Stone, a University of Chicago Law School professor who was dean when Kagan was hired there. "She is more interested as a scholar in thinking through hard issues rather than advocating particular ideological or political perspectives."

Within the orbits of law and intellectual thought, hers has been an establishment course. The product of two Ivy League universities and Oxford, she clerked for a leading appellate judge and a Supreme Court luminary, Justice Thurgood Marshall. She worked briefly for a blue-chip Washington law firm. Since then, she has alternated between two of the nation's foremost law schools -- Chicago and Harvard -- and the federal government, scaling to the heights of both realms. Last year, Obama chose her as the U.S. solicitor general -- the top attorney for the federal government before the Supreme Court she has now been selected to join.

Kagan has not attained everything she desired. In the late 1990s, President Bill Clinton nominated her as a federal appeals court judge, but Senate Republicans reluctant to give Clinton another judicial appointee never voted on her confirmation. And she was passed over for the deanship at the University of Texas School of Law.

Her career has been marked by the great confidence -- and the breaks that have come with it -- others have shown in her. Critics say her record of scholarly writing is thin, relative to that of other academics, for someone who has received choice positions at such prestigious law schools. Obama made her the government's top advocate at the Supreme Court despite the fact she had never argued an appeal in any court.

Her careful remarks outside the court on issues of great public interest have been so circumspect that she has been criticized by the left and the right.

Over her career, Kagan repeatedly has been well-positioned, with colleagues she had impressed in the past eager to hand her a job.

People who have been close to Kagan consistently describe her as a moderate liberal whose ideology is less central to her identity than her intellectual, analytical nature. For her senior college thesis, she examined socialism in New York in the early 20th century, a movement echoed in the labor sympathies of her father and older brother. But the 153-page paper was a dispassionate dissection of the internal divisions in the movement that led to its decline.

Her style bears some similarity to that of Obama -- a former law professor who ran across Kagan at Chicago while the two were teaching there. Both have cool temperaments, although her sharp wit is closer to the surface than his. Both thrive in tense and ego-ridden environments by synthesizing the arguments of different camps.

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