Elena Kagan

Reference: The Oyez Project at Chicago-Kent

Elena Kagan — policy adviser in the Clinton White House, dean of Harvard Law School, and Solicitor General in the Obama administration — won approval from the Senate on August 5, 2010 to succeed Justice John Paul Stevens as an associate justice on the U.S. Supreme Court. She took her oaths of office on August 7, 2010 to become the 112th justice and only the 4th woman to serve on the high court. Kagan brings to the Court a raft of academic and political experience paired with a noticeably thin paper trail; she never held judicial office and rarely shared personal opinions. Kagan possesses a strategic world- view while maintaining an expert “poker-face.” Kagan’s path of ascent carried her to the pinnacle of academic institutions, including Princeton, Oxford, University of Chicago, and Harvard.

Her story began in a third-story apartment on Manhattan’s Upper West Side with her parents and two brothers. Her mother worked as an elementary school teacher; both of her brothers would become educators. While she would have a future in teaching, and indeed during confirmation hearings she described herself as an excellent teacher, the argumentative dynamism of the law suited her best. Her early model was her father, a World War II veteran who graduated Yale Law School. He represented renter associations and community boards in negotiations with real estate and development interests. He imparted to his daughter by example a strong inclination toward social involvement and an appreciation of the power of a likable persona and tactful warmth. Kagan’s Jewish heritage richly colored her childhood and occasioned early moments of distinction. Family and friends remember clashes she had with her Orthodox rabbi in which she insisted her bat mitzvah include a formal component in the synagogue. Naturally she settled on a deal with the rabbi acceptable to all sides.

In the cultured, intellectually progressive environment where she grew up, her feisty independence paired with her canny diplomacy ultimately proved worthy qualities to possess. Kagan commented little about her childhood, although she expressed a general admiration of her parents and surroundings while describing in more detail her activities and habits. She enjoyed literature and intelligent conversation, smoked but never drank or partied, and appreciated friendships that included intellectual engagement. The happy embrace of the value for intellectual endeavor held by her family and in her surrounding environment underscored her whole childhood. Without a doubt she fully absorbed social expectations to excel intellectually, to argue rigorously, and to digest an impressive library of famous and influential books. The studious regime pleased her, and she recalls with particular affection rereading one of her favorite books, Jane Austen’s Pride and Prejudice, every year. Her elementary and high school peers shared more distinct memories. At Hunter College High School, still one of New York’s elite public schools and entered only by way of high exam scores, they remember that she stood out as exceptionally bright and ambitious among a crowd of talented students. She ran successfully as student body president and impressed peers with her self-confident demeanor and thoughtful bearing in meetings and assemblies. These qualities were not lost to her either; and, peers affirmed that before the end of high school, Kagan talked about her desire to be a Supreme Court justice. Further, she already had in her mind strategic thoughts about how to stake a political future. Under her senior yearbook photo, where she posed in judicial robe and gavel in hand, she quoted Justice Felix Frankfurter, “Government is itself an art, one of the subtlest of arts.”

Matriculating at Princeton University in 1977, Kagan’s undergraduate experience attested to her sharp mind and proved the period most revealing about her political and world-view opinions. Writing for The Princetonian quickly became a staple of her college life. She gained editorial influence and avidly mingled with a circle of friends with auspicious careers ahead, including future New York governor Eliot Spitzer and Bruce Reed, lead domestic policy adviser for President Bill Clinton. In contrast to the lightly satirical writing of her companions, Kagan remained “determined to have a serious discussion about the nation’s problems” according to Reed. In one column, on her wish for “real Democrats,” she reflected on the men and women of her Upper West Side neighborhood “committed to liberal principles and motivated by the ideal of an affirmative and compassionate government.” On Election Night 1980, after spending the summer on Liz Holtzman’s campaign for Senate, she lamented Ronald Reagan’s victory as president and Holtzman’s loss to Alfonse D’Amato. While she enjoyed her editorial position, academics remained at the forefront to Kagan and she displayed a remarkable intensity for all of her work. She wholeheartedly pursued her degree in history and graduated summa cum laude, received the esteemed Daniel M. Sachs Class of 1960 Graduating Scholarship, and produced a 153-page thesis on the decline of the Socialist Party. Her thesis adviser, Prof. Sean Wilentz, grasped early that she had a prodigious mind and viewed her as ripe to become a leading intellectual. Friends noted she appeared drawn to a career in academics, law, and politics, and after her senior year she accepted a graduate fellowship to study philosophy at Worcester College, Oxford.

Upon her return, Kagan entered Harvard Law School and earned a place on the law review. Amidst the sharp political divisions pervasive on campus, Kagan had to employ careful diplomacy, which colleagues remark she achieved with astounding competence and ease. By her third year she rose to articles editor of the law review, and in 1986 graduated summa cum laude. Kagan clerked in 1987 for Judge Abner Mikva of the United States Court of Appeals for the District of Columbia. The next year she clerked for Justice Thurgood Marshall of the U.S. Supreme Court. When her clerkship ended, she wanted to work for a Democratic administration but the election of George H.W. Bush ended that hope. Instead she practiced law at the D.C. firm of Williams & Connolly.

After gaining two years of experience, and drawn to neither the high-salary nor the commercial firm environment, Kagan joined the faculty of the University of Chicago Law School. She began as an assistant professor in 1991, the same year Barack Obama arrived to lecture. Her colleagues reported positively about her, while noting her characteristic tendency towards high focus and high expectations. The dean who hired her, Geoffrey Stone, called her an instant success and said that students admired her, even after her rigorously demanding class work. Sharing a defining insight about Kagan, Prof. Richard Epstein observed, “there was this desperate desire to get ahead of the world and make a mark for herself.” So enwrapped could she become with her work that one professor noticed that she would occasionally forget to turn her car engine off when lost in thought. When considering whether to grant Kagan tenure in 1995, some faculty held reservations because of her limited publishing, but they decided her reputation as a legal ace more than compensated for this.

Over the course of her five years at Chicago, Kagan published three articles, one on hate speech and pornography regulation, another on “Government Motive in First Amendment Doctrine,” and a review of Steve Carter’s book discussing the judicial confirmation process, which would come up later in her own confirmation hearings. However, shortly after receiving tenure at Chicago the Clinton administration offered her a position she could hardly refuse. Judge Mikva, now chief legal counsel to the Clinton White House, had been greatly impressed by the young Kagan during her clerkship and asked her to join his White House team in 1995. Kagan found the invitation to join the administration irresistible and took leave from Chicago. She resigned from the White House in 1996 and planned to return to Chicago; but before she had the chance, Bruce Reed, her friend from Princeton and now Clinton’s director of domestic policy, asked her to join as his top deputy. For Kagan, although accepting this position meant losing her tenure at Chicago, the opportunity in the administration suited her desire for a political future. Most importantly, proximity to the White House could yield a judicial appointment.

In 1999, President Clinton nominated her to the federal appeals court for the District of Columbia, where she had clerked for Judge Mikva. The appointment languished as Republicans stalled her confirmation hearing. As Deputy Domestic Policy Adviser, Kagan earned her greatest distinctions for work on legislative efforts to give the Food and Drug Administration regulatory authority over the tobacco industry. While the plan was unsuccessful at the time, falling three votes short in the Senate, it formed the basis for a regulatory bill passing in 2009. Having won the hard- fought support of key Republican senators including John McCain and Bill Frist, many from both parties applauded her skills at drafting constructive legislation and achieving consensus. Reed reflected that, “She brought Republicans and Democrats together on the toughest, most contentious issue in the tobacco debate.” She built a reputation for giving ardent and sometimes brusque backing to the President’s policy initiatives, which made her unpopular with some people yet also won respect from those who entrusted her with responsibility.

Kagan left the White House in 1999 and returned to academia. She first looked to return to Chicago but the school, concerned about her academic commitment, declined to re-instate her. Shortly thereafter Harvard Law School brought her on as a visiting professor and two years later named her a full professor. In 2001 she wrote an article for the law review on the role of aiding the president in forming regulatory and administration policy titled “Presidential Administration.” This won the American Bar Association’s award as the top scholarly article on administrative law for the year and contributed to Kagan’s rising reputation at Harvard. In 2003, Harvard’s president Lawrence Summers appointed Kagan dean of the law school, the first woman to hold this position. At the time, the law school was widely viewed as dysfunctional, beset with sharp ideological divides that stalled new hiring, aging facilities requiring new funding, and a curriculum that desperately demanded updates. Kagan energetically set herself the tasks at hand, and in her five years as dean achieved admirable results. Under her leadership, the school exceeded fundraising expectations, expanded its faculty size dramatically, and made significant strides toward building an academic climate that was at the same time more ideological diverse and socially harmonious. In its April’s Fool’s edition headline, the Harvard Law Record pithily summed up her activity, “Dean Kagan Hires Every Law Professor in the Country.” In the process of reforming the school’s curriculum, she attracted leading professors to come from other universities and managed to draft an instructional program with majority support. Prof. John Manning, one of her new hires who later succeeded her as dean, explained, “[s]he would have the corporate law people, then the public law people, then the criminal law people to her house for dinner and they would talk about it,” eventually working out practicable conclusions. This pragmatic and coalition-building style of leadership became her signature, marking a lesson from her White House reputation as a forceful consensus builder. During her deanship, Kagan backed a university policy of disallowing military recruiters on campus, arguing that the military’s “Don’t Ask, Don’t Tell” policy discriminated against gays and lesbians. She supported a lawsuit brought by several leading law schools against the policy. In a stunning rejection, however, the Supreme Court unanimously upheld the policy.

With the return of a Democratic administration, the White House again beckoned. On January 5, 2009 President Obama announced he would nominate Kagan as Solicitor General. She was confirmed on March 19, 2009 by a 61-31 vote. Up to this point she had never argued a case in the high court, but she soon had her change in Citizens United v. Federal Election Commission. The Supreme Court decided the case 5-4 against the government, triggering disapproving remarks by President Obama and focusing more attention on the role of Kagan as legal advocate of the administration.

Although Kagan was first touted as a possible Court nominee after Justice David Souter’s resignation in May 2009, the slot vacated by Justice John Paul Stevens in 2010 proved Kagan’s opening. Kagan received the strongest boost of support from her base in academia, as the deans of over one-third of the country’s law schools wrote her an open letter of endorsement. Outside of the academic cloister, many observer expressed concern that she had no record as a judge and vaunted the importance of a candid confirmation hearing. Kagan’s book review on the confirmation process, which bemoaned its characteristic lack of substantial legal discussion, invited the opportunity for Senators to press her for details. Whatever her ideal view of the confirmation process, however, she recognized the reality of falling into political traps and tactfully steered clear of revealing pronouncements. Instead she described herself as technical, reasonable, and open-minded. She pledged that as a judge she would form opinions based solely on legal arguments and precedent. A few topics raised hairs on both sides of the aisle. Conservatives worried about her apparent politicizing of scientific findings to support partial birth abortion; more left-leaning liberals worried about her acceptance of wide executive powers. Yet with a strong Democratic majority in the Senate, her confirmation never was in doubt. On July 20 she passed through the Senate Judiciary Committee on a 13-6 vote; and, on August 5 she received a 63-37 confirmation vote from the Senate, largely along party lines.

Kagan brings to the Court a sharp academic mind and high-level, policy-making experience. Her friend, Walter Dellinger, a former acting solicitor general in the Clinton administration, declared that “Elena is open-minded, pragmatic and progressive.” From her earliest inclinations towards intelligent conversation to her respected scholarly articles, she has displayed open-mindedness based on argumentation and reasoned thought. Whether smoothing out disputes with her childhood rabbi or building a winning alliance among sharply divided Harvard academics, her talent for pragmatic leadership made her a useful ally even to those who found her intensity unsettling. Three distinct qualities–open- mindedness, pragmatism, and progressivism–remain Kagan’s hallmarks. Moreover, the combination characterizes an emerging type of judicial ideal among liberals that may influence the Court for years to come.