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In Elena Kagan's work as solicitor general, few clues to her views
It seems different with Chief Justice John G. Roberts Jr., a sharp-edged questioner of lawyers with whom he disagrees, and perhaps particularly tough on those from the solicitor general's office, where he once worked.
Some observers believe Roberts's questions for Kagan have extra zing; others say the encounters get more attention because Kagan has been mentioned as a potential member of the court as long as she has held the job.
The court has not yet decided enough cases this term to compile a won-lost record for Kagan, and it could be misleading, anyway. The solicitor general is obliged to defend congressional actions, even when they appear to be losing propositions.
In one case, Roberts labeled one of Kagan's arguments "absolutely startling." Roberts also has been sharply critical of her legal reasoning.
In the Citizens United case, Kagan asked the court to uphold a 1990 precedent that said government could restrict corporations from using their general treasuries to advocate for or against candidates. But she did not rely on the logic behind the decision, advancing other arguments. Instead of agreeing, Roberts used the retreat to protect himself from charges that he was casting aside precedent. The government's case for upholding the 1990 ruling "depends on radically reconceptualizing its reasoning," Roberts said.
Richard Hasen, an election law expert at Loyola Law School in Los Angeles who favored the corporate restrictions, said Kagan's decision made it easier for Roberts to rule against the law. But Hasen was sympathetic to her task. "I don't think any solicitor general could have won that case," he said.
Interestingly, though, the argument that Kagan did not advance in the court is the one Obama makes when he criticizes the Citizens United decision -- that corporations will use their wealth to distort the political process.
In announcing Kagan's nomination Monday, Obama noted her role in the case. "I think it says a great deal about her commitment to protect our fundamental rights, because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens," Obama said.
But Pamela Harris, head of Georgetown University's Supreme Court Institute, said Kagan was only doing her job. "I don't fault the administration for trying to build a narrative," Harris said. "But I don't think you can read almost anything" about a lawyer's views in the positions she takes as solicitor general.