Holding Court: What You Need To Know About Elena Kagan

By Irin Carmon | May 10, 2010 | 2:00pm

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This morning, President Obama will announce Elena Kagan as his second Supreme Court nominee. If confirmed, it will be the first time that three women will serve on the Court at once. Here’s what else you need to know.

The Basics: Kagan, currently Obama’s solicitor general, was the first woman to hold that position, as well as the female dean of Harvard Law School. A graduate of that school as well as Princeton and Oxford, she clerked for Justice Thurgood Marshall (who nicknamed her “Shorty”) and Judge Abner Mikva. She taught at the University of Chicago Law School at the same time as the President, was a major aide in the Clinton Administration, worked for Joe Biden when he was on the Senate Judiciary Committee, and was appointed to her Harvard job by Larry Summers. At 50, she’d be the youngest member of the court, and the only one without experience as a judge.

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She Is Widely Seen As Brilliant. One of the many testimonials to Kagan’s fine mind is that of Sean Wilentz, the historian who advised her undergraduate thesis on the demise of New York socialism in the early 20th century. He says that Kagan is “one of the most extraordinary people I’ve met in my life, let alone teaching at Princeton.”

…But You May Have To Take Someone Else’s Word For It. Many have already complained of Kagan’s relative reticence in public life. It’s as if she’s been grooming herself to be a Supreme Court Justice since high school in New York City, when she posed in her yearbook with a judge’s robe and gavel above a quote from Justice Felix Frankfurter. In college, as editorial page editor of the Daily Princetonian, she oversaw unsigned editorials and her own beliefs were hard to pin down. Her relatively thin publication record as a law professor and civil servant led to her being recently compared to Harriet Miers, which is hotly disputed by her supporters.

But this may simply have been political savvy. Ironically, Kagan once criticized the confirmation process as being “an embarrassment,” because “senators today do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues.”

She was also denied the opportunity to reveal more about her decision-making process, since Republicans blocked President Clinton’s nomination of her as DC circuit judge from even getting a hearing. The spot eventually went to now-Chief Justice John Roberts. She is now being described as Obama’s intended intellectual counterweight to Roberts on the Court.

Liberals Think She Isn’t Liberal Enough, And Republicans At One Point Adored Her. Not long after Kagan was confirmed as Solicitor General last year, the Times remarked, “Republicans were almost as effusive as the Democrats in their praise for her.” But some progressives have raised concerns about Kagan from the start, either because of a lack of evidence of her ideological stances or because she didn’t use her platform as dean of Harvard Law School as a platform to criticize Bush administration legal abuse. In her Solicitor General hearings, she said she didn’t believe there was a constitutional right to same-sex marriage, though she may have simply been describing existing precedent, and that she was not “morally opposed” to capital punishment. She did stand up against Don’t Ask Don’t Tell (until she didn’t.)

Professor Lawrence Lessig, whom Kagan recruited back to Harvard Law School, recently wrote, “The part that everyone gets about Elena Kagan is brilliance and strength. The questions are about her politics and resolve. Is she a liberal, or in the language of the times, a progressive? Would she be a triangulator, or a justice fighting hard for what she believes?” His argument: that Kagan “has developed a sixth sense for the strategy of an argument. She matches that insight with a toughness that can get what she wants done. That doesn’t mean triangulating. It doesn’t mean ‘compromise.’ It means finding a way to move others to the answer you believe is right.” Glenn Greenwald, among others, demanded to see the evidence. Others saw reason to believe that she was more liberal on issues of executive power and habeas corpus.

Her ambiguous record may simply come down to how she construes the role of the judiciary. Kagan’s former boss at the Clinton White House Domestic Policy council said of her last year, “She doesn’t approach these problems through an ideological lens. She’s not a particularly political person, I don’t think. She’s a law professor first.” Of her considerable similarities to President Obama in terms of worldview, she’s been described as a consensus builder between warring factions.

Questions Have Been Raised About Her Record On Diversity. She has, at various times in her career, infiltrated boys’ clubs, playing poker and smoking cigars or “impress[ing] the male clerks by joining their pickup basketball games in the court’s top-floor gym,” as the Times puts it. But as dean of Harvard Law school, she made 29 tenure-track hires, 23 of whom were white men, and five of whom were white women. Other than one Asian-American woman, Kagan did not hire a single professor of color in her six years as dean. (The numbers are slightly improved upon if you include non-tenure track and visiting professors, which the White House has.)

Her open opposition to Don’t Ask Don’t Tell in the same period will most likely be seized upon. Kagan initially barred military recruiters entirely under the Law School’s policies of not allowing discriminatory employers to operate on school grounds, but relented when a Supreme Court decision threatened federal funding for the entire University. She wrote at the time, “I believe that policy is profoundly wrong – both unwise and unjust, and I look forward to the day when all our students, regardless of sexual orientation, will be able to serve and defend this country in the armed services.”

Her Personal Life Has Already Been A Target. From published rumors, strongly denied, that Kagan is a lesbian, to Internet abuse about her looks (comments here are just one example), Kagan has already been subject to severe sexism. On Google Trends this morning, “Elena Kagan husband” was #4; “Elena Kagan personal life” was #6.”

Fun Facts. Raised on New York’s Upper West Side, Kagan’s mother was a teacher, and her father was a community advocate and housing rights lawyer. She is a “literature lover who reread Jane Austen’s ‘Pride and Prejudice’ every year.” In her youth, she smoked cigarettes and sometimes cigars, and played poker. At Princeton, her circle included disgraced New York ex-governor Eliot Spitzer, and at Harvard Law and beyond, she was close to The New Yorker and CNN’s Jeffrey Toobin. She has been known to be so focused on her work that she’s left her car running overnight.
If confirmed, she would be the fourth New Yorker currently on the Court (and all of the female Justices would be New Yorkers) and would be the eighth Jewish Justice in the Court’s history.

What You Can Expect For Her Confirmation Hearings. Here’s a good rundown of the possible vote breakdown in the Senate. The Obama administration is betting that there will be few surprises, since it’s only been a year and change since hearings to confirm Kagan as Solicitor General. There may be a struggle over how much of her work in the Clinton administration is protected by executive or attorney client privilege. Republicans are expected to attack her lack of judicial experience and “Ivory Tower” orientation, and possibly for opposing Don’t Ask Don’t Tell.

A Climb Marked by Confidence and Canniness [NYT]
Obama Selects Kagan For Supreme Court [NYT]
Myths And Falsehoods About Elena Kagan’s Supreme Court Nomination [Media Matters]
The Liberal Case Against Kagan Is Overstated [Salon]
What Obama Sees In Kagan [WP]
The Ten Biggest Issues Elena Kagan Will Face [TNR]

Related: Reserved Passion: Kagan ’81 [Daily Princetonian]
Potential Justice’s Appeal May Be Too Bipartisan” [NYT]
A Case For Kagan [Huffington Post]
Kagan’s Words May Return To Haunt Her [LAT]
Larry Lessig’s Case For Kagan Is The Opposite [Glenn Greenwald/Salon]
Some Questions About Elena Kagan [Colored Demos]
The Next Harriet Miers? [The Daily Beast]