An earlier version of this story misstated Georgetown law professor Chai Feldblum's role at the Equal Employment Opportunity Commission. This version has been corrected.
Kagan has many achievements, but her world has been relatively narrow
Thursday, June 10, 2010
One night, at an intimate dinner, Elena Kagan lavished such praise on Justice Antonin Scalia that he almost teared up. The next afternoon, in front of a crowd of 500, she lauded him some more, nearly choking up herself. Then she smiled, paused and began her interrogation.
By that November of 2006, Kagan was the first female dean of Harvard Law School. Scalia was about to mark his 20th year on the Supreme Court. The two had no more than a passing acquaintance. Yet she took it upon herself to honor him at his alma mater, starting with a dinner of beef tenderloin and fine red wine in the law library's Caspersen Room, full of heavy oak and priceless rare books. She presented a clever gift: a framed original letter from Joseph Story, the great 19th-century justice, a witty thank-you to someone who had sent him a salmon. By the next day, when Scalia showed up for a question-and-answer session with law students, the two were bantering easily.
"He is the most colorful, the most intellectually playful, the most provocative member of the court, and he is indubitably its greatest writer," Kagan said, introducing Scalia. "I think he is the justice who has had the most important impact over the years on how we think and talk about the law, and that is whether we agree or disagree with many of his positions."
He thanked her for the dinner and said that "to be so warmly received by my own school was quite an affecting experience."
Kagan then confronted the guest of honor with a two-part question. Citing a previous lecturer's thesis on the "living Constitution," she said: "You have declared yourself a proponent of the dead Constitution."
The room rippled with laughter. Scalia looked a trifle peeved.
"So," Kagan continued, "is there really a choice" in interpreting the Constitution, and, "if it is a choice, why are you" -- and here she paused for effect -- "a proponent of death?"
"I can package it better than that!" Scalia retorted after the laughter subsided. "I call it the enduring Constitution."
And then the two new friends grinned at each other, pleased to have discovered such an amiable intellectual adversary in the other.
This is what President Obama is hoping Kagan will pull off on the Supreme Court, if her nomination is approved: demonstrate her respect and admiration for those with whom she may not agree, fearlessly take them on and then skillfully, and with a touch of flattery and humor, find the occasional compromise between right and left.
This is Kagan's special brilliance. It is both expedient and genuine. She has perfected a way of being that seemed innate even in high school. Her goals are at once selfish and selfless. She projects a style of personal performance that appears to be both unstrained in its gracefulness and ruthless in its efficiency. Elena Kagan doesn't fool around. She doesn't wander down paths in search of serendipity. She sends e-mails at 2 in the morning. She reads books about Afghanistan while on summer vacation.
Her confirmation hearings are set to begin June 28. On Wednesday, she checked off courtesy calls to three more senators; she now has visited with 61 of them.