Kagan no stranger to the travails of confirmation

McClatchy NewspapersMay 10, 2010 

WASHINGTON — Elena Kagan knows more than most people do about the confirmation gantlet that's coming.

The former Harvard Law School dean has studied it, as a scholar. She's worked it, as a Senate staffer. She's endured its frustrations, as a stalled judicial nominee in the Clinton administration,

Most recently, the 50-year-old Kagan has prevailed in it, surviving her January 2009 confirmation hearing to serve as the Obama administration's solicitor general. So if she sounds a tad cynical, she's earned it.

Confirmation "hearings have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis,” Kagan wrote in a 1995 University of Chicago Law Review article.

Now, however, the never-married New York City native must seriously attend the very process whose flaws she knows so well. Conservatives will press her about opposition to on-campus military recruiting. Liberals resent her full-throated defense of a president’s wartime prerogatives similar to those claimed by former President George W. Bush.

"The left has been critical that the Obama administration hasn't thrown everything out on national security, but I think they've been very balanced and thoughtful," said Elizabeth Rindskopf Parker, former general counsel for the CIA and National Security Agency.

Rindskopf Parker, now dean of the University of the Pacific's McGeorge School of Law, added that her fellow law school dean Kagan "has impressed everybody with her abilities."

There's much in Kagan's past to suggest pressure does not faze her.

The daughter of a lawyer, Kagan graduated summa cum laude from Princeton, magna cum laude from Harvard Law School and picked up a graduate degree from Oxford.

She's punched through several glass ceilings, as the first female dean of Harvard Law School and the first female solicitor general. The latter position is sometimes called "the 10th justice" for its sway with the nine-member Supreme Court.

"Now, I suspect that the justices think of the solicitor general more as the 37th clerk," Kagan joked during her confirmation hearing last year.

Not least, Kagan has shown a precocious ability to find well-placed mentors.

The first judge she clerked for in the mid-1980s, former Chicago Congressman Abner Mikva, turned out to be a key political adviser to a young Barack Obama. The chairman of the Senate Judiciary Committee she served in the early 1990s, Joe Biden, is now the vice president. The law school professor for whom she worked was Harvard’s most famous, Laurence Tribe.

From 1995 through 1999, Kagan worked in the Clinton administration’s White House on tobacco regulation, welfare and other domestic policies. Ed Whelan, the president of the conservative Ethics and Public Policy Center, called this White House service “a whole black box” that could yield material for skeptics to plumb.

Kagan helped ease the confirmation of Justice Ruth Bader Ginsburg in 1993, as Biden’s special counsel to the Senate Judiciary Committee.

Of greatest moment, though, may be Kagan’s opposition to military recruiting on campus.

Kagan called the military’s "don’t ask, don’t tell" policy prohibiting homosexuals from openly serving as “a moral injustice of the first order.” Pointedly, she signed a January 2004 legal brief challenging the law that cut off federal funding to schools that rejected military recruiters. “I believe the military’s discriminatory employment policy is deeply wrong, both unwise and unjust,” Kagan wrote Harvard faculty members in September 2005. “And this wrong tears at the fabric of our own community.”

The Supreme Court unanimously rejected Kagan’s position and on an 8-0 vote in 2006 upheld the federal law, often called the Solomon Amendment.

“It casts some doubt on her,” said Carrie Severino, a former Supreme Court clerk and now chief counsel for the conservative Judicial Crisis Network. “It shows how far removed legal academia is from everyday life.”

Kagan has far less courtroom experience than does Justice Sonia Sotomayor, Obama’s first court pick, who had a combined 10-year track record as a prosecutor and then in private practice before she became a trial judge.

Kagan, by contrast, worked less than three years in a Washington law firm before entering academia. She helped represent media clients ranging from The Washington Post to the National Enquirer, but she never tried a case to the end.

“I think I bring up a lifetime of learning and study of the law,” Kagan reassured the Judiciary panel last year. “I think I bring up some of the communication skills that have made me — I'm just going to say — a famously excellent teacher.”

Harvard Law School, Kagan further advised the Senate Judiciary Committee last year, is “the largest and most significant law school in the nation.”

Since she became solicitor general, Kagan has argued half-a-dozen cases before the Supreme Court. It hasn’t always gone well. One of her earliest argument was one of her biggest losses, as the court overturned limits on corporate campaign spending. Justices occasionally have been brusque in suggesting that she hasn't persuaded them.

"I don't think you really caught what I suggested," Justice John Paul Stevens, the man she seeks to replace, cautioned Kagan during the campaign finance argument.

In a case that involved the Obama administration’s defense of a law banning animal cruelty videos, the court by 8-1 rejected Kagan’s arguments as "startling and dangerous."

Across the spectrum, however, analysts say they admire Kagan’s intellect, with her fellow Harvard Law School graduate, commentator Stuart Taylor Jr., citing her “outstanding record” as a dean, where she has “calmed the school’s politically contentious faculty.”

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