By Ann Gerhart and Philip Rucker
Washington Post Staff Writers
Thursday, June 10, 2010; A01
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.
She has arrived at the age of 50 in a blaze of accomplishment. But her achievements can obscure how relatively narrow her world has been.Tight circle of friends
A native of New York, Kagan has worked her entire life along Pennsylvania Avenue or near Harvard Square and Hyde Park. Her friendships are, for the most part, inseparable from her closest professional associations. She has never married and has no children. Friends say she had boyfriends throughout college and law school. After that, the clerkships began, first with Abner Mikva on the U.S. Court of Appeals for the District of Columbia Circuit and then with Thurgood Marshall at the Supreme Court.
She made her life the law and became consumed by it -- and happily so, by all accounts. Her parents are no longer living, and she sees her brothers, Marc and Irving, Yale University graduates who teach public school in New York City, usually at holidays.
Most of the people in Kagan's life are important people, bound to her in tightly drawn concentric circles. Her friends are elite lawyers of a certain set or Democratic operatives with staying power. She cultivates their company, holds their confidences, gives them the best presents and solicits their ideas, said several friends among the four dozen people interviewed for this article.
She has never cared much for animals, one longtime friend said, so there are no pets. She has never cared much for driving, either, and remembering to turn off a vehicle after parking it was the rare operational detail that sometimes got past her. She has a 2003 Jetta but prefers to walk to work.
In October, she sold her handsome three-story, mansard-roofed $1.5 million home in Cambridge, which she used as an annex of her office suite. There, against a backdrop of stark white walls, ornamented by framed portraits of herself with the Clintons and hundreds of books, she staged dinner parties and catered receptions for faculty and student groups.
And poker nights. "She's quite good," says Andrew Wood, a recent graduate of Harvard Law. "She's a player who doesn't take foolish chances, doesn't take a lot of chances, but takes enough chances so that your opponent doesn't know what you're going to do."
A child of the Bronx and the Upper West Side of Manhattan, Kagan now lives in an apartment at the Landsburgh in downtown Washington's Penn Quarter neighborhood. It is a building with swanky residences as well as long-term furnished corporate rentals, and a favorite of new notables when they land in Washington. Janet Reno lived there, and Sen. Scott Brown (R-Mass.) is subletting Fred Thompson's place.
Kagan loves the theater, friends say, and the new Shakespeare Theatre is handily right next door, with Helen Mirren and Stacy Keach both on the boards in the past year. But she hasn't made it to a performance. She did get to "Iron Man II" and "The Ghost Writer." A fan of opera, particularly Verdi, Kagan has season tickets to the Washington National Opera, a going-away gift from her law school friends. Last week, she managed to get to see Laurence Fishburne portraying Thurgood Marshall in a one-man play at the Kennedy Center.
As solicitor general, Kagan put in characteristically long days running a department of 50 and preparing the six cases she argued before the Supreme Court in its last session. Each time she or her deputy, Neal Katyal, now the acting solicitor general, went before the justices, they celebrated afterward over lunch at Central Michel Richard. She always ordered the same meal: a hamburger and a side salad.'You could trust her'
Many high-energy super-achievers strive for a sanctuary of home or hobby or nature away from the relentless pressures of the workplace, even as they bang away on their BlackBerry and brag how little sleep they require. Kagan seems to be the rare person who has moved fluidly up and through the corridors of power with no apparent need for this separate sphere.
"Her work is her life is her work," says Charles Fried, a Harvard Law professor.
He credits her with grafting a sense of community onto the school's prickly and insular culture in her six years as dean.
"To call her a bloodless organization person running her organization would be a terrible mistake," Fried says of Kagan's ceaseless entertaining, dinner-going and speech-giving while dean. "She did those things with real affection, not just for the institution but for the people."
Yet the friendship her intimates describe seems curiously one-sided; it is one in which Kagan gives freely of her support but seeks none in return.
"I went through a very contentious divorce," says Laurence Tribe, another Harvard Law professor who has known Kagan for more than 20 years, "and she was one of the very few people I could talk to about it. It's because you could trust her. She made me feel that I would get through it.
"She's a great listener, and I think that will endear her to her fellow justices," says Tribe, who is on leave from Harvard while working at the Justice Department. "She's likely to make them feel that she cares what they think."
Asked whether Kagan had confided any challenging moments in her life, Tribe says she had not. "I've never seen her as a troubled person."
Says Carol Steiker, another professor: "She's a very loyal and concerned friend." Steiker went to law school with Kagan, clerked with her for Marshall, was a rival for the dean's position and has remained close to her throughout. "She was an incredibly busy and ambitious person, but she was really there -- whether . . . for a crisis or to come to my daughter's bat mitzvah. I've called upon her in both ways."
When Kagan's mother, Gloria, died in 2008, she accepted condolences with warmth and gratitude but seemed to bear her grief privately. In her remarks alongside Obama on May 10, she expressed "a tinge of sadness" that her parents were not alive to see her nominated to the Supreme Court.
"She is not going to emote all over you," says Viveca Novak, who was working for Time magazine when she met Kagan through a women's book club in Washington around 1995. "She is a very grounded person."
The club included co-founder Bonnie LePard, the wife of Kagan's college friend Bruce Reed, who at the time was Kagan's boss at the White House's domestic policy shop; Nancy-Ann DeParle, a Clinton White House aide now best known as a chief architect of the recent health-care legislation; Cynthia Hogan, a lawyer now helping to oversee Kagan's confirmation; the late journalist Marjorie Williams; Georgetown law professor Chai Feldblum, now a member of the Equal Employment Opportunity Commission; and lawyer Demetra Lambros, now working on the Justice Department's appeal of the dismissal of charges in the Blackwater case.
In that group of smart women, Kagan was regarded as "ultra-bright," says Novak, and someone who "always had something to say. She has a wonderful quirky humor."
Kagan didn't cook and didn't host, as she recalls. "She probably brought wine or something." The book club still meets monthly, but Kagan hasn't rejoined since returning to Washington.
Jeffrey Rosen, a George Washington University law professor who writes about legal affairs for the New Republic, is one of many who recount casual dinners over the years with Kagan, in which she preferred to talk about her companions' ideas rather than her own. He met her when she taught at the University of Chicago Law School in the early 1990s.
"She always was more interested in what other people were working on than in talking policy or spinning," says Rosen, whose sister is married to Katyal, the acting solicitor general. Later, when Kagan moved to Washington to work in the Clinton White House, first as a deputy counsel, then as a senior domestic policy adviser, they saw each other in the lobby of the Kennedy-Warren apartment building, where they both lived, or had lunch at Union Station.
"You would say she is unassuming, except that she is so smart, without any of the entitlement or arrogance that can come with that," Rosen says.Making history
When Kagan was a student at Princeton in the 1970s, her extracurricular passion was the student newspaper, the Daily Princetonian, an all-consuming job of sometimes 40 hours a week.
Kagan became opinions editor. "She was very good at managing outsized egos even then," says classmate Robert Faggen, now a professor of English at Claremont McKenna College in California. At the end of her senior year, he ran into her and asked what she would study on her fellowship to Oxford. Philosophy, she said. Then she would go to law school like her father, who used his Yale degree to fight for tenants' rights in New York City.
"So I gather journalism is not in the future for you," Faggen said. "And she said, 'I'd rather not write about the people who make history, I'd rather be one of the people who makes history.' She said it without any affect, and in a way that was completely self-possessed. She had that sense of how she wanted to be."
And others would do best to follow her example, she would abruptly point out.
Gwyn Murray was a bit of an academic rival of Kagan's at Hunter College High School, then an all-girls public school powerhouse in New York where Kagan's mother taught third grade. The two had not been in touch when they met again at Hunter's 10th reunion. Murray had gone to Yale, "tramped around Latin America" and become galvanized by the social struggles there, then gone on to Stanford Law School and back to Latin America.
"Oh, I wanted to be secretary of state and fight for justice," Murray says.
Kagan was between her clerkships with Mikva and Marshall.
"And she came right up to me -- I don't even remember her saying hello -- and she demanded, 'Where did you go to college? Where did you go to law school? Are you clerking? Why not?' " chuckles Murray, now practicing law in California. "And I thought, 'Oh boy, here we go again.' It was like there was but one path to becoming the best one should be."
It was not the right path to president of Harvard University, a job Kagan very much wanted, suggests a person who participated in the candidate interviews.
"When the people on the search committee met with her, they were quite struck by how narrow her range of interests were," says this person, who spoke on the condition of anonymity to discuss a confidential deliberation that ended with the installation of historian Drew Gilpin Faust as Harvard's first female president in February 2007.
"You wanted to find people with curiosity about a range of issues and thought about the university. But there were a lot . . . who thought she was quite parochial."
Similarly, when Kagan advanced in 2000 to the shortlist to become dean of the University of Texas Law School, her experience with only elite private institutions hurt her.
"We needed someone who had an appreciation for all the subtleties of being at the University of Texas," said Hector Torres, an alumnus on the search committee, with its diverse student body and constant scrapes with the state over funding and admission quotas.
Kagan confided a deep disappointment to some friends when she was passed over for the Harvard presidency, and her eyes welled with tears when hundreds of law school students threw her a surprise party to celebrate still having her as their dean. But the few times doors have closed on her, others have opened. Two years later, she was sworn in as the nation's first female solicitor general.'A great, great moment'
There is no question that Kagan's surefooted sense of self has led her to the steps of the Supreme Court, where five of the justices attended Harvard Law. As a nominee, she may be unequaled in her experience with the personalities she hopes to join.
She has argued before them, studied their writings and enjoyed personal banter with them. Scalia already has given her a nod of approval, letting on in Senate testimony that he and Justice Stephen Breyer are "both friends of Elena Kagan," then saying in a speech that he is "glad this latest nominee is not a federal judge, and not a judge at all."
But she has much persuading to do before she would take her place among them.
The morning of her nomination, "her brothers were musing about how they always knew she was born to be a great judge," says Kagan's old friend Larry Tribe, who waited outside the East Room doors with Kagan and her brothers and the president and a few others to enter at the appointed time.
"There was a sense of a great, great moment. I said to her, 'Elena, this has got to be one of the greatest days of your life. She said, 'Well, maybe until I take the oath, knock on wood.' "
He and Irving and Marc moved to embrace her, "but she had all this makeup on, so we were not allowed to give a her a hug before she went out," Tribe says.
"She said, 'No! Afterwards, maybe, but not yet.' "
Research editor Alice Crites contributed to this report.