Kagan's courtroom career includes brushes with rappers

McClatchy NewspapersMay 13, 2010 

WASHINGTON — Some sex-obsessed rappers helped initiate Elena Kagan into the world of appellate advocacy.

As a Supreme Court nominee, Kagan's judicial inexperience has become Republicans' main line of attack. She's never been a judge. Compared with some justices past and present, moreover, Kagan's resume of courtroom experience is also remarkably thin.

The Harvard Law School graduate practiced as a private attorney from February 1989 to June 1991, as a junior associate with the prestigious Washington firm Williams & Connolly. From ages 29 to 31, she was a well-trained grunt rather than a star player.

"I suspect that a number of the opposing counsel will not remember me," Kagan advised the Senate Judiciary Committee in 1999.

Though she can't match Justice Sonia Sotomayor's combined 10 years as a prosecutor and practicing attorney or Chief Justice John Roberts Jr.'s 39 Supreme Court oral arguments, Kagan's legal track record merits scrutiny, however. It reveals her work ethic. It suggests her affinity for influential mentors. It helped shape her academic career.

It also put her in some colorful company, including 2 Live Crew, the National Enquirer and James "The Amazing" Randi, a magician and self-proclaimed professional skeptic.

"It's ridiculous to say she's never practiced," Abner Mikva, a former Illinois Democratic congressman and retired appellate judge, for whom Kagan clerked, said in an interview Thursday. "She's practiced more than some others on the court."

Unlike Roberts, who earned more than $1 million a year in private practice, Kagan exited the practitioner's path before it got lucrative. In 1999, she reported having only $15,000 in cash savings and $9,890 in stock.

Financially, she did better in law school administration. Last year, the then-Harvard Law School dean reported having accumulated $135,000 in cash savings, $162,000 worth of stock and a half-million dollars in her retirement plan.

While in private practice, Kagan shouldered the standard burden assigned to young associates. She drafted briefs and conducted discovery. While representing the president of Western Savings Association, who later was convicted of bank fraud, she tracked a grand jury investigation. She argued several times before judges.

"She felt it was a part of her training, something she had to do," Mikva said. "It may not have been the most fun thing for her, but she did it well."

Kagan was never in charge, though she aligned herself with those who were. While at Williams & Connolly, she worked with David Kendall and Robert Barnett, two of Washington's most prominent lawyers.

Unlike some, she apparently didn't perform much hands-on pro bono work. Asked last year to describe her pro bono experience, Kagan cited her membership on nonprofit boards of directors. She also cited a new Harvard Law School program that waives a year of tuition for students who enter public service.

Before Harvard, there was 2 Live Crew.

The hip-hop group hit the spotlight in 1989 with its album "As Nasty As They Wanna Be," which included the single "Me So Horny." Nick Navarro, the sheriff of Florida's Broward County, thought it went too far.

"I'm a freak in heat, a dog without warning," the rappers sang. "My appetite is sex, 'cause me so horny."

U.S. District Judge Jose Gonzalez agreed with Navarro that the song was obscene, and 2 Live Crew appealed.

The group's attorney, Bruce Rogow, said in an interview that he encouraged the Recording Industry Association of America to file a friend-of-the-court brief. The association hired Williams & Connolly, and Kagan drafted the brief, later explaining that she "stressed the difficulty of finding music obscene under prevailing constitutional law."

In 1992, a three-judge panel of the 11th U.S. Circuit Court of Appeals unanimously threw out the trial judge's decision.

"It was nicely done, and it was certainly helpful," Rogow, who's a professor at Nova Southeastern University's law school, said of Kagan's brief, "but I think the outcome would have been the same regardless."

Last year, Kagan identified the 2 Live Crew case as one of the 10 most significant matters she'd handled during her brief practice. Foreshadowing her later academic focus on the First Amendment, four of the other cases involved media clients.

She mostly worked out of the public eye. When a man who'd been mistakenly identified as the father of disgraced preacher Jimmy Swaggart sued the National Enquirer, Kagan drafted pleadings and handled the information search known as discovery.

"We eventually settled the case on terms favorable to our client," Kagan reported.

Sometimes, Kagan played a more prominent role, as in a dispute that pitted "The Amazing Randi" against Eldon Byrd.

Randi made his mark by attacking spoon-bender Uri Geller's claims of having psychic powers. In the late 1980s, Randi called Byrd, an ally of Geller's who'd been put on probation for distributing sexually explicit material, a child molester.

Byrd sued for libel, naming Randi and the publishers of his allegations.

Representing Montcalm Publishing, the publisher of The Twilight Zone magazine, Kagan drafted motions and argued before the Baltimore-based trial judge. She stressed broad First Amendment principles, such as when an individual's reputation already was tainted enough to be libel-proof.

However, the jury found in June 1993 that Randi had defamed Byrd, although it awarded no damages. By then, Kagan had moved to the University of Chicago Law School, where she was writing scholarly articles on the First Amendment.

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