Elena Kagan

Elena Kagan
45th United States Solicitor General
Incumbent
Assumed office March 19, 2009
President	Barack Obama
Preceded by	Gregory G. Garre
Dean of Harvard Law School
In office July 1, 2003 – July 1, 2009
Preceded by	Robert C. Clark
Succeeded by	Martha Minow
Personal details
Born	(1960-04-28) April 28, 1960 New York City
Alma mater	Princeton University Oxford University Harvard Law School

Elena Kagan (Template:Pron-en; born April 28, 1960) is the Solicitor General of the United States and currently nominated to the U.S. Supreme Court.

Kagan was formerly a professor of law at the University of Chicago and at Harvard, as well as an Associate White House Counsel under President Clinton. She was appointed Solicitor General by President Obama on January 26, 2009. On May 10, 2010, President Obama nominated Kagan to the Supreme Court to fill the vacancy from the impending retirement of Justice John Paul Stevens at the end of the Supreme Court's 2009/2010 term.

Early life and education

Kagan was born in New York City, the middle of three children raised by their parents in the Jewish traditions. Both parents worked, Gloria Gittelman Kagan, an elementary school teacher, and Robert Kagan, an attorney. Kagan's two brothers are public school teachers, as their mother had been before them.

After graduating from Hunter College High School in 1977, Kagan earned an A.B. in history from Princeton University, summa cum laude, in 1981. At Princeton, she wrote a senior thesis under historian Sean Wilentz studying the socialist movement in New York City in the early 20th century. Recently speaking about Kagan, Professor Wilentz had this to say: "One of the foremost legal minds in the country, she is still the witty, engaging, down-to-earth person I proudly remember from her undergraduate days."

As an undergraduate, Kagan also served as editorial chair of the Daily Princetonian. She received Princeton's Daniel M. Sachs Class of 1960 Graduating Scholarship, one of the highest general awards conferred by the university, which enabled her to study at Worcester College, Oxford University. She earned a Master of Philosophy from Oxford in 1983. She received a Juris Doctor, magna cum laude, from Harvard Law School in 1986, where she was Supervisory Editor of the Harvard Law Review.

Early legal and academic career

Kagan was a law clerk for Judge Abner Mikva of the U.S. Court of Appeals for the District of Columbia Circuit in 1987 and for Justice Thurgood Marshall of the U.S. Supreme Court in 1988. She later entered private practice as an associate at the Washington, D.C., law firm of Williams & Connolly.

Kagan joined the faculty of the University of Chicago Law School as an assistant professor in 1991 and became a tenured professor of law in 1995. While at Chicago, she published "Regulation of Hate Speech and Pornography After R.A.V.," a law review article on the regulation of First Amendment hate speech; "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine," an article discussing the significance of governmental motive in regulating speech; and, "Confirmation Messes, Old and New," a review of a book by Stephen L. Carter discussing the judicial confirmation process. According to her colleagues, Kagan's students raved about and admired Kagan from the beginning, but she was granted tenure "despite the reservations of some colleagues who thought she had not published enough."

White House and judicial nomination

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.

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, her nomination to the D.C. Circuit Court lapsed, as did the nomination of fellow Clinton nominee Allen Snyder.

Return to academia

After her service in the White House and her failed nomination, Kagan returned to academia in 1999 as a visiting professor at Harvard Law School. While at Harvard, she authored Presidential Administration, a law review article on administrative law, including the role of aiding the President of the United States in formulating and influencing federal administrative and regulatory law. That 2001 Harvard Law Review article 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.

Kagan as Dean of Harvard Law School

In 2001, she was named a full professor and in 2003 was the first woman to be named Dean of the Law School by Harvard University's then-president Lawrence Summers, who is now President Obama's top economic advisor. 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.

In her capacity as dean, Kagan 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."

She also hired legal scholar Cass Sunstein away from the University of Chicago.

From 2005 through 2008, Kagan was a member of the Research Advisory Council of the Goldman Sachs Global Markets Institute.

Solicitor General

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.

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

First Amendment Center and the Cato Institute later expressed concern over arguments Kagan advanced as a part of her role as solicitor general. For example, during her time as Solicitor General, Kagan prepared a brief defending a law later ruled unconstitutional that would have criminalized depictions of animal cruelty.

Indefinite detention without trial

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. 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

Kagan meets with President Barack Obama in the Oval Office, April 30, 2010.

Main article: Elena Kagan 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, Jeffrey Toobin — a Supreme Court analyst and Kagan's friend and law school classmate — 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." However Maggie Gallagher, writing for the National Review, argues that 'A Vote for Kagan is a vote for Gay marriage'.

As Kagan's name was mentioned as a possible replacement for Justice Stevens, the New York Times noted 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.

On May 9, 2010 it was reported that President Obama had chosen Kagan as his nominee to succeed Supreme Court Justice John Paul Stevens. If confirmed, Kagan would be the first justice in nearly four decades without any prior experience as a judge; the last justice confirmed without prior experience as a judge was William Rehnquist in 1972. If confirmed, she would become the fourth female justice in the Supreme Court's history, and the third on the current bench. She would also become the eighth Jewish justice in the Supreme Court's history, and the third on the current bench.

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
• The Progressive Case For Elena Kagan Thinkprogress.com (2010-05-10)

External links

• Elena Kagan at Judgepedia (a GFDL Wiki)
• 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!
• Seen As Rising Star, Kagan Has Limited Paper Trail by NPR May 9, 2010

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