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

By Amy Goldstein, Carol D. Leonnig and Peter Slevin
Washington Post Staff Writers
Tuesday, May 11, 2010; A01

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.

"She has a calm mind," said Sean Wilentz, a Princeton historian who was Kagan's thesis adviser. "She is not hepped up. She looks at things from many angles"

Family influence

The rarified perches Kagan has occupied are a considerable distance from the New York world of social activism and Jewish orthodoxy in which she grew up.

Born in April 1960, she was the middle child and only daughter of Robert Kagan and Gloria Gittelman Kagan. The family lived in a four-room apartment in Stuyvesant Town, and until it moved to the Upper West Side when she was a teenager, a relative said, Kagan shared a bedroom with her two brothers.

Their home was crammed with books and art -- and often filled with friends and relatives who shared her parents' political passions. "They were people who had a very keen sense of social justice," said the relative, who spoke on the condition of anonymity.

After graduating from Yale Law School, Robert Kagan worked to secure federal protections for Native Americans, then focused on the rights of apartment dwellers on Manhattan's West Side. His wife taught poor students in Harlem, then moved to Hunter College Elementary School, a selective school Kagan attended.

When she was young, the family belonged to Lincoln Square Synagogue. In the male-dominated religious culture of Orthodox Judaism, Kagan became one of the first girls to be bat mitzvahed. Her maternal grandfather in Philadelphia helped convince the synagogue's rabbi that girls deserved the opportunity, according to the relative.

Hunter College High School was the kind of place where teenage girls worked together on the New York Times crossword puzzle. Even in that environment, Kagan stood out. "She was always very driven. . . . She didn't get sidetracked by feelings," Gwyn Murray, a classmate, said.

Her senior year, Kagan was elected president of the student body. A yearbook photo of the officers shows her in a black robe, holding a gavel. And for the quote beneath her yearbook portrait, she chose one from a former Supreme Court justice, Felix Frankfurter: "Government is itself an art, one of the subtlest of arts."

Active but not activist

When she entered Princeton in the fall of 1977, Kagan was 17, younger than most of the freshmen because she had graduated from high school early. Her friends tended to be relatively intellectual students who gravitated toward the Prince, as insiders call the student paper, and positions in student government.

They were active on campus but not especially activist, according to several of her friends from that time. Apart from her lament over the defeat of Holtzman, Kagan made few explicitly political gestures.

Although some of her friends were protesting for Princeton to divest its holdings in apartheid South Africa, she was more detached, going to work on the student newspaper as a freshman. The Prince and her studies were her central focus, and halfway through her junior year, she ran for, but lost, the paper's top editor's spot. Kagan was the runner-up and chose to head the editorial-writing team, but the editorials were nearly all unsigned, so they did not become a platform for her individual views.

By her senior year, friends recall, Kagan was uncertain what direction her career should take. She won a Daniel M. Sachs scholarship -- a fellowship akin to a Rhodes scholarship that Princeton awards one graduating student to study for two years at Oxford. At Oxford's Worcester College, she hung out with students who were "a little less the pre-law people and a little more the political theory people," said Anne-Marie Slaughter, a friend whose education and career intertwined with Kagan's for decades.

At Oxford, she became the coxswain for a women's crew team. Jason Brown, a friend from Princeton, said she relished the role of coordinating the eight rowers. "Here she was leading people who had physical talents beyond hers -- the idea of a leadership role where you are part of a team."

By the time she left Oxford, she had settled on law school as her next step. She was torn between Yale, her father's alma mater, and Harvard. In the end, she headed to Harvard.

Richard Fallon was in his fourth year of teaching at Harvard Law when Kagan arrived in his federal courts class. "Her questions were so penetrating that my knees would wobble," he said.

She made the Harvard Law Review and graduated in 1986 magna cum laude.

From clerk to teacher

Kagan came to Washington as a clerk to Judge Abner J. Mikva, an outspoken liberal on the U.S. Court of Appeals for the D.C. Circuit. Even in the midnight-oil world of law clerks, her work ethic stood out, recalled a fellow clerk, Harry Litman. For relief from the legal briefs, Kagan played poker and basketball with other clerks -- and was part of the crowd that made regular trips to City Lights in Dupont Circle for Chinese food and guilty runs to a downtown Popeyes for fried chicken. She went on to become a Supreme Court clerk for Marshall, the civil rights legend, whom she has called "the most important lawyer, I think, of the 20th century." He nicknamed her "Shorty."

After two years at Williams & Connolly, she moved into academia. She joined the University of Chicago faculty as an assistant professor in 1991, at 31. Four years later, she was "an easy case for tenure," Stone recalled.

Kagan "wasn't someone who just wanted to go into academics to play with ideas in a more abstruse way," said Daniel Shaviro, a New York University law professor who knew Kagan at Chicago. "She was interested in real-world institutions and issues." She published articles, including two submissions on the First Amendment, but her written output was limited, colleagues said.

Slaughter, who helped recruit Kagan to Chicago and now is a senior State Department official, said her friend is a scholar of a certain type. "She is much more comfortable examining something and analyzing something given to her, and she'll be brilliant at it, and she will see it from different angles. . . . In many ways, being a judge is a better fit for her than being a scholar, where the emphasis is . . . generating a particular intellectual signature.

"She really is a deep intellectual," Slaughter said. "She is not married. And although she has many friends, the world of books and ideas is her world."

A lawyer's mind

Intellectual that she is, Kagan also has been steeped in the rough-and-tumble world of politics and public policy.

When Mikva, then the White House counsel to Clinton, hired her as an associate counsel in 1995, she helped vet executive orders on welfare reform, child support enforcement and other domestic policy issues.

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.

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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