In Elena Kagan's work as solicitor general, few clues to her views

By Robert Barnes
Washington Post Staff Writer
Thursday, May 13, 2010; A03

In her six appearances before the Supreme Court, Solicitor General Elena Kagan has argued some of the term's most important constitutional challenges to government action. Justice Antonin Scalia has said that she "stepped into the fire."

He ought to know. Just 20 seconds into her first argument before the court, Scalia stopped her midsentence with, "Wait, wait, wait, wait." His second question began, "I don't understand what you're saying."

But when he later said he doubted that Congress could be impartial in writing election law, Kagan politely told him he was wrong. The statute that passed, she said, could hurt incumbents. "This may be the single most self-denying thing that Congress has ever done," Kagan told Scalia.

Since President Obama nominated Kagan to join her inquisitors on the Supreme Court, members of Congress, the public and legal experts have been sifting through her background in search of her stances on important issues and the law. She has not been a judge, so there are no legal opinions to peruse; she made few bold declarations in her writings as a professor and dean of Harvard Law School; and she has been circumspect in speeches. She spent several hours on Capitol Hill meeting with key senators Wednesday but said little about her personal views.

So her 15-month tenure as solicitor general will be scrutinized. But those trying to forecast her potential Supreme Court opinions face a difficult task. The job of solicitor general is to be not a legal philosopher but a lawyer with a client to defend: the United States government.

"It's a mistake to assume that every argument an SG makes on behalf of the government reflects her personal legal philosophy," said Lincoln Caplan, who wrote a book about the job, "The Tenth Justice." "But you can definitely get a feeling from the briefs she submits and the arguments she makes in the Supreme Court for the legal approach she takes and her style of legal reasoning."

And also perhaps a bit about how she would fit in.

Kagan displays a confident, conversational style at the lectern. As the first female solicitor general, she declined -- after polling the justices to see if they objected -- to wear the traditional morning coat that her predecessors donned, in favor of dark suits.

When she takes her spot just feet from the bench, it is clear why Justice Thurgood Marshall, her former boss, nicknamed her Shorty. "This may take awhile," she told the court once while cranking down the lectern as she prepared to follow a particularly tall advocate from the other side.

She and Scalia appear to have a rapport -- he told National Public Radio he liked Kagan's pushback in the campaign finance case, Citizens United v. Federal Election Commission. "The reason you ask the question is to see if there's a decent answer to it," he said.

Like all advocates, Kagan appears to pay special attention to Justice Anthony M. Kennedy, often the deciding vote in close cases. When she was at Harvard, she heaped praise on her fellow Harvard Law graduate for his "independence and integrity."

Kagan has learned when to accept help from the bench. When Justice Ruth Bader Ginsburg once rephrased one of Kagan's arguments, the solicitor general quickly got out of the way. "You said it better than I did, Justice Ginsburg," Kagan complimented.

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.

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