Elena Kagan

Elena Kagan
45th United States Solicitor General
Incumbent
Assumed office March 19, 2009
President	Barack Obama
Preceded by	Gregory G. Garre
Personal details
Born	(1960-04-28) April 28, 1960 New York City
Alma mater	Princeton University Worcester College, Oxford Harvard Law School

Elena Kagan (Template:Pron-en), born April 28, 1960) is Solicitor General of the United States. She is the first woman to hold that office, having been nominated by President Barack Obama on January 26, 2009, and confirmed by the U.S. Senate on March 19, 2009. Kagan was formerly dean of Harvard Law School and Charles Hamilton Houston Professor of Law at Harvard University. She was previously a professor of law at the University of Chicago Law School. She served as Associate White House Counsel under President Bill Clinton. Late in the evening of May 9, 2010, MSNBC, followed by the New York Times, reported that Kagan will be nominated as an Associate Justice on the U.S. Supreme Court, replacing retiring Justice John Paul Stevens, by President Obama on May 10, 2010. If nominated and confirmed, she would become the fourth female Supreme Court justice in United States history and third on the court's current bench.

Early life, education, and career

Kagan was born in New York City. She is the middle of three children of Gloria Gittelman Kagan and Robert Kagan. After graduating from Hunter College High School in 1977, Kagan earned a A.B. from Princeton University, summa cum laude, in 1981. She received Princeton's Daniel M. Sachs Memorial Scholarship, one of the highest general awards conferred by the university, which enabled her to earn an M.Phil degree from Oxford University, at Worcester College in 1983. She received a J.D., magna cum laude, from Harvard Law School in 1986. She was editorial chairman of the Daily Princetonian and later Supervisory Editor of the Harvard Law Review.

Kagan was a law clerk for Judge Abner Mikva of the U.S. Court of Appeals for the District of Columbia Circuit and for Justice Thurgood Marshall of the U.S. Supreme Court. She later entered private practice as an associate at the Washington, D.C., law firm of Williams & Connolly.

Academia

Kagan launched her academic career at the University of Chicago Law School. She became an assistant professor in 1991 and a tenured professor of law in 1995.

Her interests focus on administrative law, including the role of aiding the President of the United States in formulating and influencing federal administrative and regulatory law. Her 2001 Harvard Law Review article, "Presidential Administration," was honored as the year's top scholarly article by the American Bar Association's Section on Administrative Law and Regulatory Practice, and is being developed into a book to be published by Harvard University Press. The abstract to that article reads, in part:

This Article examines a recent and dramatic transformation in the relationship between the President (and his staff) and the administrative state. Professor Kagan argues that President Clinton, building on a foundation President Reagan laid, increasingly made the regulatory activity of the executive branch agencies into an extension of his own policy and political agenda. He did so, primarily, by exercising directive authority over these agencies and asserting personal ownership of their regulatory activity—demonstrating in the process, against conventional wisdom, that enhanced presidential control over administration can serve pro-regulatory objectives. Professor Kagan offers a broad though not unlimited defense of the resulting system of "presidential administration" against legal and policy objections. This form of controlling agency action, she argues, comports with law because, contrary to the prevailing view, Congress generally should be understood to have left authority in the President to direct executive branch officials in the exercise of their delegated discretion.

Kagan has also written widely on a range of First Amendment issues.

White House

From 1995 to 1999, Kagan served as President Bill Clinton's Associate White House Counsel and Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council.

1999 judicial nomination

On June 17, 1999, President Clinton nominated Kagan to the U.S. Court of Appeals for the District of Columbia Circuit, to replace James L. Buckley, who had taken senior status in 1996. The Senate Judiciary Committee's Republican chairman Orrin Hatch scheduled no hearing, effectively ending her nomination. When Clinton's term ended, she and Allen Snyder were unconfirmed nominees for the D.C. circuit court.

In 2001, President George W. Bush nominated John G. Roberts to the seat to which Kagan had been nominated; Roberts was confirmed in 2003, and was elevated to the Supreme Court in 2005 upon his confirmation as Chief Justice of the United States.

Dean of Harvard Law School

Lawrence Summers appointed Kagan the first female dean of Harvard Law School in 2003. She succeeded Robert C. Clark, who had served as dean for over a decade. The focus of her tenure was on improving student satisfaction. Efforts included constructing new facilities and reforming the first-year curriculum, as well as aesthetic changes and creature comforts, such as free morning coffee. She has been credited for employing a consensus-building leadership style, which surmounted the school's previous ideological discord.

She also inherited a $400 million capital campaign, "Setting the Standard," in 2003. It ended in 2008 with a record breaking $476 million raised, 19% more than the original goal. Kagan made a number of prominent new hires, increasing the size of the faculty considerably.

During her deanship, Kagan supported a long-standing policy barring military recruiters from campus, because she felt that the military's Don't ask, don't tell policy discriminated against gays and lesbians. According to Campus Progress,

As dean, Kagan supported a lawsuit intended to overturn the Solomon Amendment so military recruiters might be banned from the grounds of schools like Harvard. When a federal appeals court ruled the Pentagon could not withhold funds, she banned the military from Harvard’s campus once again. The case was challenged in the Supreme Court, which ruled the military could indeed require schools to allow recruiters if they wanted to receive federal money. Kagan, though she allowed the military back, simultaneously urged students to demonstrate against Don’t Ask, Don’t Tell.

In October 2003, Kagan transmitted an e-mail to students and faculty deploring that military recruiters had shown up on campus in violation of the school's anti-discrimination policy. It read, "This action causes me deep distress. I abhor the military's discriminatory recruitment policy." She also wrote that it was "a profound wrong -- a moral injustice of the first order."

Solicitor General nomination

On January 5, 2009, President-elect Barack Obama announced he would nominate Kagan to be Solicitor General. Before this appointment she had limited courtroom experience. She had never argued a case at trial, and had not argued before the Supreme Court of the United States. This is not uncommon, however, as at least two previous Solicitors General, Robert Bork and Kenneth Starr, had no previous appellate experience at the Supreme Court, though Starr served as a Circuit Court Judge prior to acting as Solicitor General.

At her confirmation hearing, Kagan also drew criticism for arguing that battlefield law, including indefinite detention without a trial, could apply outside of traditional battlefields.

Kagan was confirmed by the U.S. Senate on March 19, 2009, by a vote of 61 to 31. She made her first appearance in oral argument before the Supreme Court on September 9, 2009, in Citizens United v. Federal Election Commission.

Indefinite detention without trial

During her hearings to be confirmed as Solicitor General, the New York Times paraphrases Kagan as saying "that someone suspected of helping finance Al Qaeda should be subject to battlefield law -- indefinite detention without a trial -- even if he were captured in a place like the Philippines rather than a physical battle zone."

Supreme Court nomination

Long before the election of President Barack Obama, Kagan was the subject of repeated speculation that she might be nominated to the Supreme Court of the United States if a Democratic president were elected in 2008. This speculation greatly increased on May 1, 2009, when Associate Justice David H. Souter announced his intention to retire from the court at the end of June 2009. It was speculated that her new position as Solicitor General could increase Kagan's already much discussed chances to be nominated, since solicitors general have often been considered potential nominees to the Supreme Court in the past. On May 13, 2009, the Associated Press reported that President Obama was considering Kagan, among others, for possible appointment to the United States Supreme Court. On May 26, 2009, however, President Obama announced that he was nominating Sonia Sotomayor to be the next United States Supreme Court Justice.

On April 9, 2010, Justice John Paul Stevens announced that he would retire as soon as the Court finished its current caseload in late June or July, triggering a new round of speculation around Kagan as a possible nominee to the bench. In a Fresh Dialogues interview, Supreme Court analyst and good friend to Kagan, Jeffrey Toobin speculated that Kagan would likely be President Obama's nominee, describing her as "very much an Obama type person, a Democrat..." This possibility has alarmed many liberals and progressives, who worry that "replacing Stevens with Kagan risks moving the Court to the Right, perhaps substantially to the Right."

Kagan's sexual orientation and its role in nomination politics became the subject of media discussion after CBS News published a blog post by Ben Domenech which reported a Harvard campus rumor that Kagan is a lesbian. CBS removed the post shortly after White House officials stated that the rumor was untrue.

As Kagan's name has been mentioned as a possible replacement for Justice Stevens, the New York Times notes that she "has supported assertions of executive power." This view of vast executive power has caused some commentators to fear that she would reverse the delicate majority in favor of protecting civil liberties on the Supreme Court were she to replace Stevens. According to the Financial Times, Kagan could be nominated for the Supreme Court as soon as May 10, 2010.

On May 9, 2010 MSNBC and CNN reported that President Obama had chosen Kagan as the successor to Supreme Court Justice John Paul Stevens. If confirmed, Kagan would be the first justice in nearly four decades without any prior judicial experience.

See also

• Barack Obama Supreme Court candidates
• Bill Clinton judicial appointment controversies
• List of law clerks of the Supreme Court of the United States

Further reading

• Potier, Beth (September 16, 2004). "Big plans highlight Elena Kagan's 2L; HLS dean looks forward to a busy year". Harvard Gazette. Harvard News Office. Retrieved 2009-01-05.
• Levine, Adina (2004-09-30). "Kagan declares state of the law school is "very strong"; Plans more construction, reassessment of curriculum, and enlargement of faculty". Harvard Law Record. Harvard Law School Record Corporation. ISSN 0017-8101. Retrieved 2009-01-05.
• "No Excuse Not to Work Out: Hemenway Opens". Harvard Law Record. Harvard Law School Record Corporation. 2005-09-29. ISSN 0017-8101. Retrieved 2009-01-05.
• Brown, Kelly Lynn (2004-09-30). "Editorial: Dean Kagan off to a promising start". Harvard Law Record. Harvard Law School Record Corporation. ISSN 0017-8101. Retrieved 2009-01-05.
• Gerstein, Josh (March 10, 2006). "As Harvard Seeks a President, Dean Kagan's Star Is Rising". New York Sun. Retrieved 2009-01-05. Ms. Kagan, 45, is credited with overseeing a renaissance at the law school during her nearly three years as dean, and many of her fans believe she could achieve the same for the entire university if given the chance.
• Bennett, Drake (October 19, 2008). "Crimson tide - Harvard Law School, long fractious and underachieving, is on the rise again - and shaking up the American legal world". Boston Globe. Retrieved 2009-01-05. [T]here is near unanimity that the school's dean, Elena Kagan, a scholar of administrative law and a former Clinton administration official, has galvanized the place with her ambition and adroit management style, knitting together the faculty, charming the students, and attracting top-flight talent to the school.
• Leonard, Tom (April 24, 2009). "Barack Obama administration seeks to change police questioning law". Telegraph.co.uk. London. Retrieved 2009-04-24. The Justice Department, in a brief signed by Elena Kagan, the solicitor general, said the 1986 decision "serves no real purpose" and offers only "meagre benefits".
• Lichtblau, Eric (2009-05-15) Potential Justice’s Appeal May Be Too Bipartisan, New York Times
• van Diggelen, Alison (April 10, 2010). "Jeffrey Toobin says Elena Kagan Likely Supreme Court Justice". Huffington Post. Retrieved 2010-4-10. She's very much an Obama type person, a moderate Democrat, a consensus builder... {{cite news}}: Check date values in: |accessdate= (help)
• Greenwald, Glenn (2010-04-13) The case against Elena Kagan, Salon.com

External links

• U.S. Solicitor General Elena Kagan talks on CSPAN about what a solicitor general does - July 23, 2009
• Glenn Greenwald on Why Elena Kagan Would Shift the Supreme Court to the Right - video report by Democracy Now!