Elena Kagan

Current Position: U.S. Solicitor General (since March 2009)
Boss: Deputy Attorney General David Ogden
Credit: Harvard Law School

 

Why She Matters

Kagan is the first woman to hold the office of solicitor general in the Justice Department, often referred to informally as the “10th justice.” The solicitor general argues for the government in front of the Supreme Court.

The former dean of Harvard Law School, Kagan has a distinguished resume that includes stints as a professor of constitutional and administrative law at both Harvard and Chicago and four years in the Clinton administration. There was one obvious hole in her resume: she had never argued a case in front of the Supreme Court.

But Kagan is one of the country’s top constitutional and administrative law scholars. After years of working as a professor, Kagan became the Harvard Law School dean in 2003 and jumpstarted a transformation that added quality-of-life-activities for the students and included hiring dozens of top-notch professors.

Following Justice David Souter's announced retirement from the Supreme Court, Kagan's name was one of many often cited as a potential replacement.

Though she has been in the public eye for years, Kagan’s views on many pressing constitutional and administrative law issues remain unclear.

Path to Power

Kagan grew up on Manhattan’s West Side, and went to Princeton University, where she earned an A.B. in history in 1981. After graduating, she received a Sachs scholarship went to Oxford, where she received a master of philosophy before attending Harvard Law School.Biography on Harvard Law School Web site Though Kagan’s professors later praised her as one of their top students, she was not at the top of her class after her first semester as a law student.

But Kagan made Harvard Law Review and became supervising editor, clerked for Abner Mikva on the D.C. Circuit of the U.S. Court of Appeals and clerked for Justice Thurgood Marshall at the U.S. Supreme Court.Mauro, Tony, “The Kagan File,” Legal Times Blog, Jan. 7, 2009

After working for Michael Dukakis’ 1988 presidential campaign, she took a job at the Washington D.C. law firm Williams & Connolly, where she worked for three years. In 1991, she began her work in academia, taking a job with the University of Chicago as an assistant professor.  Four years later, she became a tenured professor, and, in the same year, left the school to work in the Clinton administration, where she spent four years.Questionnaire submitted to the Senate Judiciary Committee accessed from the committee Web site

Kagan started as Clinton’s associate counsel and eventually spent a couple years as deputy assistant to the president for domestic policy and deputy director of the Domestic Policy Council.“President-elect Obama announces key Department of Justice posts,” Press release from the Obama transition team She had planned to return to Chicago after just a year, but she was tempted to stay in the prestigious White House job. Interestingly, a lot of Kagan’s work in the White House focused on crafting policy, not law. The New Republic called her “wonderwonk” and “a nerd who can talk tough.”Milbank, Dana, “Wonderwonk,” The New Republic, May 18, 1998

Harvard Law School

In 1999, Kagan left Washington to return to academia. She became a visiting professor at Harvard Law School, and two years later became a professor. Before he left office, Clinton nominated Kagan to serve on the D.C. Circuit of Appeals, where she had once clerked, but her nomination never received a vote from the Senate Judiciary Committee.Editorial, “Consult on Judges,” The Washington Post, Oct. 24, 2002

After two more years as a professor at Harvard, where she focused on administrative law and constitutional law, Kagan was appointed dean of the law school in 2003 by Lawrence H. Summers, former Clinton Treasury Secretary and current Obama adviser who was then president of Harvard University. "I thought she had a combination of commitment to students, leadership ability, and deep insight into law, not just for its own sake but as a tool for making the world work better," Summers said.Bennett, Drake, “Crimson Tide,” Boston Globe, Oct. 19, 2008

After Obama won the 2008 presidential election, he tapped Kagan to be his solicitor general. In January, Kagan received the endorsement of the last eight solicitors general in a letter to the Senate Judiciary Committee. “We are confident that Dean Kagan will bring distinction to the office, continue its highest traditions and be a forceful advocate for the United States before the Supreme Court,” the letter said.Mauro, Tony, “Eight former SGs Endorse Kagan,” The Blog of Legal Times, Jan. 28, 2009 She is the first female solicitor general.

Despite her limited experience in front of the Supreme Court, her name is often mentioned as a potential nominee to replace Justice David Souter. If nominated and confirmed, she would be the third woman to sit on the high court.

The Issues

Kagan’s ideas on how to improve a law school have been widely studied, and often praised. But her legal opinions have received much less scrutiny. The New York Times described Kagan’s legal writings as “dense, hedged and moderate.”Liptak, Adam, “Obama’s choice for solicitor general has left a breach in a long paper trail,” The New York Times, Jan. 7, 2009 

She will almost certainly be asked about her opinion on executive power, an issue that played a key role in U.S. Supreme Court cases during the George W. Bush administration. In a 2001 Harvard Law Review article, Kagan said that the idea of the “unitary executive” expanded under President Clinton. But “I do not espouse the Unitarian position,” Kagan wrote. “President Clinton’s assertion of directive authority over administration, more than President Reagan’s assertion of a general supervisory authority, raises serious constitutional questions.”Kagan, Elena, “Presidential Administration,” Harvard Law Review, June 2001

Changing Harvard

Kagan is often credited with overhauling the image of Harvard Law School, from a factory that churns out talented lawyers to a place that cultivates some of the best legal minds in the country.

For decades, Harvard was viewed as a fractured campus that didn’t care much about its students. Kagan started with small changes to improve student life: a volleyball court, an ice-skating rink and free coffee. “As it turns out, you can buy more student happiness per dollar by giving people free coffee than anything else I’ve discovered,” she said.Bennett, Drake, “Crimson Tide,” Boston Globe, Oct. 19, 2008

More importantly, Kagan also greatly improved Harvard’s faculty, increasing its size from 80 to more than 100 in just a few years. She made a handful of extremely high-profile hires, such as conservative jurists John Manning and Jack Goldsmith, who worked in the Office of Legal Counsel under George W. Bush and wrote a book, The Terror Presidency, about the legal issues the administration faced such as torture, Guantanamo Bay and wiretapping. In February 2008, she hired Cass Sunstein, the longtime University of Chicago law professor who Kagan described as “the preeminent legal scholar of our time.”Bennett, Drake, “Crimson Tide,” Boston Globe, Oct. 19, 2008 Sunstein now heads the White House Office of Information and Regulatory Affairs in the Obama administration.

During an April Fool’s issue, the law school newspaper ran a headline “Dean Kagan hires every law professor in the country.” She hired more professors with public law backgrounds (going against Harvard’s image as a corporate lawyer factory), expanded the clinic program and expanded financial aid. "Public service is a very personal subject for me," said Kagan. "I spent a good part of my legal career in government and I came to value very highly a certain spirit of public service and what people who possess that spirit can accomplish. Public service should be a vitally important part of every lawyer's life."Levine, Adina, “Kagan declares state of the law school is ‘very strong,’” Harvard Law Record, Sept. 30, 2004

The Network

Her time at Harvard Law School didn’t overlap with Obama’s at all, but Kagan is tenuously connected with the president. She joined the staff at the University of Chicago Law School in 1991 and became tenured in 1995; Obama was on staff from 1993 to 2004. Kagan also clerked for Abner Mikva when he was on the D.C. Circuit court of appeals. Mikva, who is now a Chicago lawyer, is a close Obama mentor. He tried to get Obama to clerk for him, and later advised the politicians during campaign in 2000, 2004 and 2008.

Kagan was hired to be dean of Harvard Law School by Lawrence Summers, who was Treasury secretary under President Bill Clinton, went on to serve as president of Harvard University and is now an economic adviser to Barack Obama. She, in turn, hired Cass Sunstein away from University of Chicago Law School. Sunstein, who is married to Obama foreign policy adviser Samantha Power, is now head of the White House Office of Information and Regulatory Affairs for Obama. Obama is advised by a handful of other Harvard Law School professors such as Laurence Tribe, Charles Ogletree, Martha Minow and Dan Meltzer, who will serve as deputy White House counsel.

In the solicitor general's office, she will work with principal deputy Neal Katyal.

Campaign Contributions

Kagan has donated $12,050 since the 2000 election cycle, all to Democratic candidates. She donated to Hillary Rodham Clinton’s 2000 Senate campaign but supported Barack Obama in the 2008 presidential primary, donating the maximum $4,600 to the politician from Illinois and nothing to Clinton.Center for Responsive Politics