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Elena Kagan

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Elena Kagan
45th United States Solicitor General
Assumed office
March 19, 2009
PresidentBarack Obama
Preceded byGregory G. Garre
Dean of Harvard Law School
In office
July 1, 2003 – March 19, 2009
Preceded byRobert C. Clark
Succeeded byMartha Minow
Howell Jackson (acting)
Personal details
Born (1960-04-28) April 28, 1960 (age 64)[1]
Manhattan, New York
Alma materPrinceton University (A.B.)
Oxford University (M.Phil.)
Harvard Law School (J.D.)

Elena Kagan (Template:Pron-en; born April 28, 1960)[1] is the Solicitor General of the United States.

Kagan was born and raised in New York City. After attending Princeton, Oxford, and Harvard Law School, she completed federal and Supreme Court clerkships. She began her career as a professor at the University of Chicago Law School, leaving to serve as an Associate White House Counsel and later policy adviser under President Clinton. After a failed nomination to the United States Court of Appeals for the D.C. Circuit, she became a professor at Harvard Law School and was later named its Dean.

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.[3][4]

Personal life and education

Kagan was born in New York City, the middle of three children, on the city's Upper West Side. Her mother, Gloria Gittelman Kagan, taught fifth and sixth grade at Hunter College Elementary School, and her father, Robert Kagan, was an attorney.[5][6] Kagan's two brothers are public school teachers, as their mother had been before them.[7]

Kagan and her family lived in a third-floor apartment at West End Avenue and 75th Street. [8] Kagan was independent and strong-willed in her youth, according to Bill Lubic, a former law partner, who recalled Kagan clashed with her rabbi over aspects of her bat mitzvah.[8]"She had strong opinions about what a bat mitzvah should be like, which didn’t parallel the wishes of the rabbi," remembered Lubic. "But they finally worked it out. She negotiated with the rabbi and came to a conclusion that satisfied everybody."

Childhood friend Margaret Raymond recalled that Kagan was a teenage smoker but not a partier; on Saturday nights, she and Kagan "were more apt to sit on the steps of the Metropolitan Museum of Art and talk."[8] Kagan also loved literature and re-read Jane Austen's Pride and Prejudice every year.[8] 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. Professor Wilentz insists, however, that she did not mean to defend socialism, noting that, "She was interested in it. To study something is not to endorse it."[9] 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."[10]

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.[11] She received a Juris Doctor, magna cum laude, from Harvard Law School in 1986, where she was Supervisory Editor of the Harvard Law Review. Friend Jeffrey Toobin recalled Kagan at Harvard Law "stood out from the start as one with a formidable mind." "She’s good with people," added Toobin. "At the time, the law school was a politically charged and divided place. She navigated the factions with ease, and won the respect of everyone."[12]

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; Marshall nicknamed the 5 foot 3 inch Kagan "Shorty".[8] She later entered private practice as an associate at the Washington, D.C., law firm of Williams & Connolly.[1]

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.[13] 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 in the wake of the Supreme Court's ruling in R.A.V. v. City of St. Paul; "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, and she was granted tenure "despite the reservations of some colleagues who thought she had not published enough."[14]

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. While serving in that position, Kagan co-authored a May 13, 1997 memo to the President urging him to support a ban on late-term abortions.[15]

In 1996 she wrote an article in the University of Chicago Law Review entitled, “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.” Kagan argued that government has the right, even considering the First Amendment, to restrict free speech, when the government believes the speech is "harmful", as long as the restriction is done with good intentions.[16]

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.[17]

Return to academia

After her service in the White House and her lapsed judicial 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. [citation needed]

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 now serves as director of the National Economic Council.[18] 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.[19][20]

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.[21] Kagan made a number of prominent new hires, increasing the size of the faculty considerably. Her coups included hiring legal scholar Cass Sunstein away from the University of Chicago[22] and Lawrence Lessig away from Stanford.[23] She also broke a logjam on conservative hires by bringing in such scholars as Jack Goldsmith, who had been serving in the Bush administration.[20]

During her deanship, Kagan supported a 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.[24][25]

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."[26]

According to the New York Times, while dean of Harvard Law School, Kagan was criticized for allegedly being too lenient on two Harvard law professors who had unintentionally committed plagiarism. Normally, students who do such a thing are required to leave the school, but Kagan did not require that of the two professors.[27] An editorial in the Harvard Crimson said, "The evident double standard sets a poor example for the student body and for the wider community.."[28]

From 2005 through 2008, Kagan was a member of the Research Advisory Council of the Goldman Sachs Global Markets Institute and received a $10,000 stipend for her service in 2008.[29]

Solicitor General

On January 5, 2009, President-elect Barack Obama announced he would nominate Kagan to be Solicitor General.[30][31] Before this appointment she had limited courtroom experience. She had never argued a case at trial,[32] 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.[33]

Kagan was confirmed by the U.S. Senate on March 19, 2009, by a vote of 61 to 31,[34] 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.[35]

The 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.[36][37] During her solicitor general confirmation hearing, she said that "there is no federal constitutional right to same-sex marriage." Also during her solicitor general confirmation, Kagan was asked about the Defense of Marriage Act, under which states don’t have to recognize same-sex marriages from other states. She said she would defend the act.[38]

Indefinite detention without trial

At her confirmation hearing, Kagan also drew criticism from liberal activists for arguing that battlefield law, including indefinite detention without a trial, could apply outside of traditional battlefields.[39] 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."[39]

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.[40][41][42][43][44] 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.[45] On May 26, 2009, however, President Obama announced that he was nominating Sonia Sotomayor to be the next United States Supreme Court Justice.[46]

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 about Kagan's potential nomination to the bench.[47] In a Fresh Dialogues interview, Jeffrey Toobin — a Supreme Court analyst and Kagan's friend and law school classmate[48] — speculated that Kagan would likely be President Obama's nominee, describing her as "very much an Obama type person, a Democrat..."[49] 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."[50] However Maggie Gallagher, writing for the National Review, argues that 'A Vote for Kagan is a vote for Gay marriage'.[51]

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."[52] 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.[53]

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 by the Senate, Kagan would be the first justice in nearly four decades without any prior experience as a judge;[54][55] the last justice confirmed without prior experience as a judge was William Rehnquist in 1972;[56] she would also 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

References

  1. ^ a b c Who's Who In America (2008). "Elena Kagan - WhosWhoInAmerica.Com". Marquis. Retrieved 2009-01-03.
  2. ^ "Growing Up, Kagan Tested Boundaries of Her Faith". nytimes.com. 12 May 2010. Retrieved 13 May 2010.
  3. ^ "Obama is said to Select Kagan as Justice". MSNBC.com. 9 May 2010. Retrieved 9 May 2010.
  4. ^ "Obama Names Kagan for Supreme Court". nytimes.com. 9 May 2010. Retrieved 9 May 2010.
  5. ^ "Paid Notice: Deaths Kagan, Gloria Gittelman". New York Times, July 13, 2008.
  6. ^ "Robert Kagan, 67, Lawyer for Tenants". New York Times, July 25, 1994.
  7. ^ "Kagan's remarks on her Supreme Court nomination". Associated Press, May 10, 2010.
  8. ^ a b c d e "A Climb Marked by Confidence and Canniness". The New York Times. 2010-05-10. Retrieved 2010-05-15. {{cite news}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
  9. ^ Seelye, Katharine Q (2010-05-10). "A Climb Marked by Confidence and Canniness". The New York Times. Retrieved 2010-05-10. {{cite news}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
  10. ^ Cliatt, Cass (2010-05-10). "Princeton alumna Kagan nominated to Supreme Court". Princeton University. Retrieved 2010-05-10.
  11. ^ "Kagan '81 nominated for U.S. solicitor general". Daily Princetonian, December 12, 2008.
  12. ^ "Elena Kagan's Nomination". The New Yorker. 2010-05-10. Retrieved 2010-05-15.
  13. ^ Sweet, Lynn (2007-11-20). "Elena Kagan played Chicago-style 16-inch softball at U of Chicago". Chicago Sun Times Blogs. Retrieved 2010-05-11.
  14. ^ Seelye, Katharine Q (2010-05-10). "A Climb Marked by Confidence and Canniness". The New York Times. Retrieved 2010-05-10. {{cite news}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
  15. ^ Jill Zeman Bleed, Kagan in ’97 urged Clinton to ban late abortions, MSNBC (May 10, 2010).
  16. ^ "Kagan Argued for Government 'Redistribution of Speech'". CNSNews.com. Retrieved 2010-05-13.
  17. ^ Savage, David G. (September 27, 2002). "Little Light Shed on Bush Judicial Pick". Los Angeles Times. p. A-18. Retrieved 2009-01-05. The post Estrada hopes to fill is vacant because Republicans blocked action on two Clinton picks for the court: Washington attorney Allen Snyder and Harvard law professor Elena Kagan. {{cite news}}: Cite has empty unknown parameter: |coauthors= (help)
  18. ^ Berman, Russell (August 21, 2008). "Summers Manages Low Profile While Advising Senator Obama; Some Women Warn Democrat About Former Harvard President". New York Sun. Retrieved 2009-01-05. {{cite web}}: Cite has empty unknown parameters: |month= and |coauthors= (help)
  19. ^ "At Harvard, dean eased faculty strife - The Boston Globe". Boston.com. 2010-04-15. Retrieved 2010-05-13.
  20. ^ a b "Kagan, possible Obama pick, thawed Harvard Law - The Boston Globe". Boston.com. 2009-01-04. Retrieved 2010-05-13.
  21. ^ "Harvard Law School Celebrates Record-setting Capital Campaign". Harvard Law School. 2008. Retrieved 2009-01-05. Harvard Law School's "Setting the Standard" campaign has raised $476,475,707, making it the most successful fund-raising drive in the history of legal education. {{cite web}}: Cite has empty unknown parameter: |coauthors= (help); Unknown parameter |month= ignored (help)
  22. ^ Woolhouse, Megan (2009-01-04). "She's thawed Harvard Law". Boston Globe. Retrieved 2010-05-10.
  23. ^ "The Harvard Law Record - Lessig rejoining faculty". Hlrecord.org. Retrieved 2010-05-13.
  24. ^ Matthews, Dylan (May 5, 2009). "A More Gay Friendly Supreme Court". Campus Progress. Retrieved April 16, 2010.
  25. ^ Totenberg, Nina (22 December 2009). "Solicitor General Kagan Holds Views Close To Her Chest". NPR. Retrieved 2009-12-22.
  26. ^ Goldstein, Amy (April 18, 2010). "Foes may target Kagan's stance on military recruitment at Harvard". The Washington Post. Retrieved May 1, 2010.
  27. ^ When Plagiarism's Shadow Falls on Admired Scholars, The New York Times, November 24, 2004
  28. ^ A Disappointing Double Standard, The Harvard Crimson, April 19, 2005
  29. ^ Kelley, Matt (2010-04-27). "Possible Supreme Court pick had ties with Goldman Sachs". USA Today. Retrieved 2010-05-10.
  30. ^ "CNN.com: More Obama Justice Dept Picks Announced". Politicalticker.blogs.cnn.com. 2009-01-05. Retrieved 2009-05-08.
  31. ^ Obama names Jewish woman as solicitor general
  32. ^ "Presidential Politics | Political News". FOXNews.com. 2009-02-10. Retrieved 2009-05-08.[dead link] [dead link]
  33. ^ Healey, Jon (2009-03-26). "Elena Kagan and the GOP's perilous partisanship - Los Angeles Times". Latimes.com. Retrieved 2009-05-08.
  34. ^ "On the Nomination (Confirmation Elena Kagan, of Massachusetts, to be Solicitor General)". United States Senate. 2009-03-19. Retrieved 2009-03-19.
  35. ^ Mauro, Tony (September 09, 2009). "Supreme Court Majority Critical of Campaign Law Precedents". The Blog of LegalTimes. Retrieved 2009-11-28. {{cite web}}: Check date values in: |date= (help); Italic or bold markup not allowed in: |work= (help)
  36. ^ David L. Hudson, Jr. (2010-05-10). "Kagan's First Amendment record causes concern". First Amendment Center.
  37. ^ Ilya Shapiro (2010-05-10). "Initial Kagan Critiques Miss the (First Amendment) Point". Cato Institute.
  38. ^ Lee, Carol E. (May 12, 2010). "Gay rights central to Elena Kagan fight". Politico..
  39. ^ a b Savage, Charlie (February 17, 2009). "Obama's War on Terror May Resemble Bush's in Some Areas". New York Times..
  40. ^ "As Harvard Seeks a President, Dean Kagan's Star Is Rising - March 10, 2006 - The New York Sun". Nysun.com. 2006-03-10. Retrieved 2009-05-08.
  41. ^ "Campaign 2004: Election likely to alter make-up of Supreme Court". Post-gazette.com. 2004-08-09. Retrieved 2009-05-08.
  42. ^ "The Democratic (Not So) Short List". SCOTUSblog. 2007-07-12. Retrieved 2009-05-08.
  43. ^ "Follow-Up to the Democratic (Not So) Short List". SCOTUSblog. Retrieved 2009-05-08.
  44. ^ "Dems sketch Obama staff, Cabinet - Mike Allen". Politico.com. Retrieved 2009-05-08.
  45. ^ "AP source: Obama has more than 6 people for court". Retrieved 2009-05-13.
  46. ^ Totenberg, Nina (April 30, 2009). "Supreme Court Justice Souter to Retire". NPR. Retrieved 2009-04-30. {{cite web}}: Cite has empty unknown parameters: |month= and |coauthors= (help)
  47. ^ "Justice Stevens Says He Is Retiring This Summer". The New York Times. April 9, 2010. Retrieved 2010-04-09.
  48. ^ Rothstein, Betsy (2010-05-10) NBC Breaks Kagan News When Toobin Could Have Called, Mediabistro.com
  49. ^ Fresh Dialogues Interview Series with Alison van Diggelen on YouTube, April 9, 2010.
  50. ^ Greenwald, Glenn (2010-04-13) The case against Elena Kagan, Salon.com
  51. ^ "National Review Online". Nationalreview.com. 2008-05-02. Retrieved 2010-05-11.
  52. ^ Possible Candidates, New York Times (April 9, 2010)
  53. ^ Glenn Greenwald, Justice Stevens' retirement and Elena Kagan, Salon.com (April 9, 2010)
  54. ^ Baker, Peter (2010-05-02). "Obama Is Said to Choose Elena Kagan for the Supreme Court". New York Times. Retrieved 2010-05-11.
  55. ^ "Obama picks Kagan for Supreme Court - Supreme Court". MSNBC. Associated Press. 2010-05-11. Retrieved 2010-05-11.
  56. ^ "Supreme Court: Justices Without Prior Judicial Experience". FindLaw.com. Retrieved 2010-05-11.

Further reading

External links

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Legal offices
Preceded by Solicitor General of the United States
March 19, 2009 – present 		Incumbent
Academic offices
Preceded by Dean of Harvard Law School
July 1, 2003 – March 19, 2009 		Succeeded by

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