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Kagan boosted by her buddies

By Howard Kurtz
Washington Post Staff Writer
Wednesday, May 12, 2010; 9:06 AM

Elena Kagan knows the right people, and it's paying off.

First and foremost, of course, she had the good fortune to be teaching law at the University of Chicago at the same time as Barack Obama.

She is firmly plugged into the Beltway-to-Boston elite -- the upper crust of the media, academia, law and politics -- in ways that create a presumption of excellence and lots of favorable profiles. It means there are big-name law professors who can be trotted out to vouch for her brilliance, and political operatives who touted her as the front-runner all along.

Being an insider's insider pays all kinds of dividends, especially if you once sat atop the power base known as Harvard. And we are seeing that in the early wave of who-is-she coverage.

CNN's Jeffrey Toobin posted a blog headlined "My Law School Classmate, Elena Kagan." Toobin pronounced her "smart, funny, self-confident, extremely intelligent but not obnoxious about it."

The New Republic's legal editor, Jeffrey Rosen, also speaks from personal experience:

"I first met Kagan in the mid-'90s when we were both former law clerks for Judge Abner Mikva on the U.S. Court of Appeals for the D.C. Circuit. Since then, I've run into her every few years, as she moved from the University of Chicago Law School to the Clinton administration back to Harvard, and most recently to the Solicitor General's Office, where my brother-in-law is now her deputy. I've always been struck by her ability to ask a friendly but pointed question that identified the hardest issue in the legal dispute, to connect to the people she was questioning with an uncanny ability to see things from their intellectual perspective, and then to reframe the issue on her own terms so that the resolutions seemed clearer and more compelling."

On the "CBS Evening News" on Monday, Jan Crawford, the network's legal correspondent, reported that "as the first woman dean of Harvard Law School and first woman solicitor general, she is considered an intellectual heavyweight."

Then came Katie Couric's question: "Jan, I know you were a student of Elena Kagan's when she was a professor at the University of Chicago Law School. So, was she tough?"

"She was very tough!" Crawford replied. "I had her for two classes. But she was very challenging, while at the same time very engaging and lively."

Turns out that Kagan is even a former Washington Post lawyer. As my colleague Al Kamen reports, she worked on a couple of cases for the paper while practicing at Williams & Connolly, perhaps the bluest of the city's blue-chip firms, launched by Edward Bennett Williams.

And the New York Times found multiple story lines in Kagan having grown up on the Upper West Side, including a sidebar on her alma mater, Hunter College High School.

But consider this: As an undergraduate -- at Princeton, naturally -- she wrote of her disappointment after the 1980 loss of the Democrat Senate candidate she had worked for, Elizabeth Holtzman: "Where I grew up -- on Manhattan's Upper West Side -- nobody ever admitted to voting for Republicans."

I can imagine heads nodding over breakfast all across the city. But now imagine that a Republican nominee was reminiscing about growing up in Utah, where nobody ever admitted voting for Democrats. Wouldn't that person be presented as a bit. . . . cloistered?

Of course, even among GOP nominees, John Roberts and Antonin Scalia went to Harvard Law, and Sam Alito and Clarence Thomas went to Yale Law.

But if Kagan has the picture-perfect résumé, she is also emerging as a portrait of calculated caution --a careerist who, as the Times noted, posed in a judge's robes for her high school yearbook. She may be from outside the judicial monastery, but she was perfectly positioned to pass through its golden gates.

David Brooks (University of Chicago) sees a monomaniacal focus:

"Kagan has many friends along the Acela corridor, thanks to her time at Hunter College High School, Princeton, Harvard and in Democratic administrations. So far, I haven't met anybody who is not an admirer. She is apparently smart, deft and friendly. She was a superb teacher. She has the ability to process many points of view and to mediate between different factions.

"Yet she also is apparently prudential, deliberate and cautious. She does not seem to be one who leaps into a fray when the consequences might be unpredictable. . . .

"One scans her public speeches looking for a strong opinion, and one comes up empty. . . . What we have is a person whose career has dovetailed with the incentives presented by the confirmation system, a system that punishes creativity and rewards caginess. . . .

"She seems to be smart, impressive and honest -- and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing."

Andrew Sullivan returns a similar indictment, but with added disgust:

"Her life, so far as one can tell, is her career, and her career has been built by avoiding any tough or difficult political or moral positions, eschewing any rigorous intellectual debate in which she takes a clear stand one way or the other, pleasing every single authority figure she has encountered, and reveling in the approval of the First Class Car Acela Corridor elite. . . .

"Name one risk she has taken with her career. I can't. . . .

"It's all so comfy, isn't it? Those poker parties. Those committee meetings. No wonder Jeffrey Rosen and Jeffrey Toobin validate her. But at least they have offered an opinion or two from time to time on issues every thinking person would discuss. She hasn't."

It's all about the Ivy, argues Walter Shapiro (University of Michigan):

"If Elena Kagan (Harvard Law '86) is confirmed for the court, all nine justices would have received their legal training at Harvard or Yale.

"This is one of those moments when you sense that American democracy is more of a rigged game than they taught you back in high school civics classes. Few object to a meritocracy in which people, regardless of family backgrounds, are judged by what they have accomplished in life. But should that binding decision have been made by the admissions committees at two law schools when the applicants were still in their early 20s?"

One thing is beyond dispute: the Upper West Side is a long way from the Bronx housing projects, and Kagan didn't have the childhood obstacles faced by Sonia Sotomayor. But as Politico points out, the administration is trying to make do with what it has:

"The White House strained Monday to cast Kagan in talking points as having also risen from the streets, with 'immigrant grandparents' and a father who was a lawyer, yes, but one 'devoted to the rights of tenants.'

"Press secretary Robert Gibbs deflected questions about her 'real world' background by reciting her gilded qualifications, prompting ABC News's Jake Tapper to remark that it's not as if Kagan was 'a community organizer in Chicago.' "

Immigrant grandparents? Nice try.

What about Obama's empathy test? "The main White House talking points about Kagan are hard to refute," John Dickerson says in Slate. "She is very smart. She was the first woman to serve as dean of Harvard Law School, where stories of her efforts to reach out to conservatives are well-known. She is the first woman to serve as solicitor general.

"The argument that Kagan has a special understanding of ordinary people, however, is harder to make. She may very well have a fellow-feeling unmatched on the planet. It's just not immediately obvious how a graduate of Princeton who taught law at the University of Chicago and Harvard and then became dean of Harvard Law School has the common touch. . . .

"Republicans have been making the case that Obama doesn't understand the lives of regular people. Now they can add that Obama's idea of someone who does is an ivory-tower intellectual. That will be good for fundraising and some jokes. But it's hardly disqualifying."

But Kagan is not heading for overwhelming approval, says Atlantic's Josh Green:

"She's been the presumptive nominee among insiders for quite some time. So it's probably not to soon to draw this conclusion: out of the gate, Elena Kagan has been less controversial than her immediate predecessor, Sonia Sotomayor.

"Here's why that's interesting: despite the smoother reception, Kagan will probably garner fewer votes in the Senate than the 68 votes Sotomayor got. This is less a reflection on Kagan or Sotomayor than a marker of just how much Washington has changed since last August. The difference is the increased awareness among Republican senators of the energy and anger in the conservative base."

Jane Hamsher of Firedoglake likens Kagan to Bush's failed court nominee and objects to the appointment of "somebody that has no track record":

"Like Harriet Miers, she doesn't have a record to tell us how she would adjudicate from the bench. They led a rebellion against the executive branch and the same thing should happen here."

"Accepting Kagan just because people like Obama is wrong. That's appropriate for American Idol, not the Supreme Court. Nobody knows what she stands for but him. It's just a cult of personality with Obama. This is the Supreme Court."

At Powerline, though, Paul Mirengoff isn't buying the analogy:

"I think Hamsher pushes the Miers comparison too far. Miers was a crony of President Bush, but Kagan isn't a crony of Obama; nor, to my knowledge, is she a close confidante. Plenty of people probably know as much or more about where Kagan stands than Obama does -- her friends at Harvard Law School and perhaps her colleagues in the Solicitor General's office, for example. If Kagan was less than a reliable liberal, word almost certainly would have gotten out during the vetting process or before. . . .

"In sum, conservatives needed to rely more heavily on President Bush to vouch for Miers' soundness than liberals need to rely on President Obama to vouch for Kagan's. Moreover, Obama is himself a lawyer, whereas Bush is not. Thus, his assessment of ideological soundness is worth more than Bush's was."

Finally, it seems that all judicial politics is local:

"For the first time in the court's history," the New York Times practically exults, if Kagan is confirmed, the court "would have four justices who grew up in New York City.

"The four are a portrait of the city, each carrying distinct New York traits to Washington. 'Kagan is so Manhattan, Scalia is so Queens, Ginsburg is so Brooklyn and Sotomayor is so Bronx,' said Joan Biskupic, the author of a biography of Justice Antonin Scalia."

Anyone see an anti-Staten Island bias here?

Lead of the year

"Who knew that Barack Obama's real ambition is to be Howard Kurtz?"

I certainly didn't.

Might be news to the president as well.

I mean, it's a worthy goal and all, but he does have a country to run.

In Commentary, former Bush White House staffer Pete Wehner sees the president encroaching on my turf:

In his commencement address at Hampton University, the president once again decided to act as if he were America's Media-Critic-in-Chief. In Obama's words:

"You're coming of age in a 24/7 media environment that bombards us with all kinds of content and exposes us to all kinds of arguments, some of which don't always rank that high on the truth meter. And with iPods and iPads; and Xboxes and PlayStations -- none of which I know how to work -- (laughter) -- information becomes a distraction, a diversion, a form of entertainment, rather than a tool of empowerment, rather than the means of emancipation. So all of this is not only putting pressure on you; it's putting new pressure on our country and on our democracy. . . .

"By now Obama has spoken out against the New Media often enough to know that he both despises it and is obsessed with it. For all of his talk about his eagerness to listen to others, 'especially when we disagree,' as he put it on the night of his election, Obama clearly resents being challenged. He gets especially exasperated and condescending when his challenger has made the better argument. That is, in fact, a trait of Team Obama. . . .

"The president and his aides are clearly used to being cosseted. They seem to believe the American public should treat them as reverentially as staff members of the New Yorker do."

I can understand the president being frustrated by media excess -- who isn't? -- but he's beat this drum so often now that it may be getting old. Besides, my job doesn't come with a nice white house, personal chef and your own helicopter.

Howard Kurtz also works for CNN and hosts its weekly media program, "Reliable Sources."

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