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

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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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When her leave from Chicago's faculty was set to expire two years later, she was preparing to return, with the movers scheduled and 120 students signed up for her class. Clinton's domestic policy adviser, Bruce Reed, prevailed on her to stay on as his deputy.

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Reed, now head of the centrist Democratic Leadership Council and director of Obama's new deficit commission, had been a year behind Kagan at Princeton, and she had edited his student columns. At the White House, he essentially made her his coequal.

"If she went to a meeting in my place, people were always happier that happened," he said.

Kagan had a reputation for demanding -- sometimes harshly -- rigor and precision in policy statements, sending drafts back for repeated revisions. "If you delivered, she liked you a lot. And if you didn't, she made sure you understood you needed to do it," recalled Chris Jennings, who directed health policy in the White House at the time.

She did not, however, develop much of her own vision for domestic policy, her colleagues and outside policy specialists said. She retained the mind-set of the legal counsel who was carrying out the will of her client, the president. Margy Waller, who would later work for the Clinton White House, recalled meeting with Kagan about welfare reform -- a controversial set of changes that alienated many liberals. Good poker player that she is, Waller recalled, Kagan never betrayed any discomfort with the idea. "She wasn't promoting anything or trying to undermine anything. She was doing her job," Waller said.

Kagan's pragmatism was perhaps most evident in the task that dominated her White House tenure, the battle for a legal settlement with the tobacco companies and for legislation to limit smoking. After states reached a tentative settlement with the tobacco companies in 1997, Kagan -- a smoker for 17 years -- was put in charge of an administration panel on federal regulation of cigarettes and pushed Congress to enact legislation.

She hammered out a deal with Sen. John McCain (Ariz.) and other Republicans to give the FDA regulatory authority over tobacco. When his committee voted on the deal, he said she had "negotiated far into the night and early in the morning on behalf of the administration." But the legislation failed amid heavy lobbying by the tobacco industry. And years later, when Obama nominated her to become solicitor general, McCain voted against her.

Twin pulls

As she was leaving Washington, Kagan thought about returning to Chicago. Her academic leave had expired, so she needed to be reappointed.

She had strong admirers on the faculty -- but detractors, as well. "There's a Chicago attitude that people who spent that long in Washington are not really people who will come back and roll up their sleeves and be full-time scholars," said a former colleague who still is there.

Another faculty member and Kagan supporter said skeptics suspected that "she wasn't really committed to the academy and didn't really show promise as a first-rate scholar." This faculty member said the worries were "really stupid."

But as Chicago vacillated, Kagan was recruited by Harvard. Friends there, with whom she had clerked and taught, recruited Kagan as a visiting professor. So she came back to Cambridge in 1999. Slightly more than a year later, she was offered tenure, and in the spring of 2003, she became dean.

Factional and ideological rivalries within the faculty had subsided since Kagan's days as a student, but they remained pronounced. She placed a priority on enhancing the quality of students' lives -- from free coffee all around to free tampons in women's restrooms. She consulted with students on adding artwork in barren hallways and revamping the student center.

Kagan tried to balance Harvard's prevailing liberal tilt. Michael Sevi was president of the law school's student government and active in the conservative Federalist Society. He remembers that he and his friends at the conservative Harvard Journal of Law and Public Policy printed T-shirts bearing Kagan's likeness and a statement she once made: "I love the Federalist Society!"

Kagan also led a substantial revision of the curriculum, placing more emphasis on helping students prepare for public interest careers.

And last spring, she demonstrated firsthand, for a second time, the pull of government service. Obama, a former Chicago colleague, lured her back to Washington to become his solicitor general.

Staff writers Alec MacGillis and Sandhya Somashekhar and research editor Alice Crites contributed to this report


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