Obama’s Choice for Solicitor General Has Left a Breach in a Long Paper Trail

By ADAM LIPTAK
Published: January 6, 2009

WASHINGTON — The New Republic called Elena Kagan a “wonderwonk” for
her work on tobacco legislation in the Clinton administration. She
was, the magazine said, “a nerd who can talk tough.”

Justice Thurgood Marshall, for whom she served as a law clerk, called
her, Ms. Kagan once wrote, “to my face and I imagine also behind my
back, ‘Shorty.’ “

And if she is confirmed by the Senate, Chief Justice John G. Roberts
Jr. will welcome Elena Kagan to the Supreme Court lectern as “General
Kagan,” the first female solicitor general.

The solicitor general, who is the only federal official required by
statute to be “learned in the law” and is sometimes referred to
informally as “the 10th justice,” supervises appellate litigation
involving the federal government and presents the government’s views
to the Supreme Court.

Ms. Kagan, 48, is dean of Harvard Law School. She has a powerful and
varied résumé and has produced a substantial paper trail. But she has
provided few clues about where she stands on the great legal issues of
the day, notably the Bush administration’s broad assertions of
unilateral executive power in areas like detention, surveillance,
interrogation and rendition.

She did offer a glimpse of her views in a 2001 article in The Harvard
Law Review that considered the “unitary executive” theory.

The phrase is sometimes used as shorthand for the Bush
administration’s assertion that it has broad powers that cannot be
limited by Congress or the courts. In her article, Ms. Kagan addressed
an earlier and narrower meaning of the phrase, one made popular during
the Reagan administration, concerning the scope of the president’s
power to control the executive branch itself.

She found that such presidential control “expanded dramatically during
the Clinton presidency,” a development she largely welcomed. But she
said Congress, experts and interest groups should also play a role in
informing the executive branch’s actions.

“I do not espouse the unitarian position,” Ms. 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.”

Ms. Kagan, whose scholarly interests include administrative law and
the First Amendment, is widely credited with bringing harmony and star
faculty members to the notoriously dysfunctional Harvard Law School.

David Kessler, a third-year student who is president of the school’s
student government, said Ms. Kagan “has an exceptionally positive
reputation.”

“She’s always been both pragmatic and fair,” Mr. Kessler said.

Ms. Kagan served as a lawyer and policy adviser under President Bill
Clinton, who nominated her to the United States Court of Appeals for
the District of Columbia Circuit. That nomination stalled in the
Senate.

Ms. Kagan has never argued a case before the Supreme Court, a gap
likely to be a subject at her confirmation hearing.

Lincoln Caplan, author of “The Tenth Justice: The Solicitor General
and the Rule of Law,” said Ms. Kagan would bring exceptional
qualifications to the job, including “her legal scholarship and her
hands-on experience in the executive branch, as well as her obvious
intelligence, skills as an administrator, problem-solver and broker,
and extensive relationships in the part of the legal culture that
matters to the solicitor general.”

“I also suspect she’ll turn out to be an impressive oral advocate,”
Mr. Caplan said.

Both Ms. Kagan and President-elect Barack Obama attended Harvard Law
School, though their time there did not overlap.

In an e-mailed note to faculty members, students and alumni on Monday,
Ms. Kagan wrote of her nomination that “it adds a special touch of
sweetness to the occasion that the person making the nomination, in
whose capacity for greatness I deeply believe, is himself a member of
the group to which I am writing.”

The nomination makes Ms. Kagan an early front-runner for a seat on the
Supreme Court. Justice Marshall was solicitor general before he was
appointed to the court in 1967.

Most of Ms. Kagan’s legal writings are dense, hedged and moderate. But
in a 1995 review of a book on Senate confirmation fights, she made a
statement she may come to regret.

“When the Senate ceases to engage nominees in meaningful discussion of
legal issues,” she wrote, “the confirmation process takes on an air of
vacuity and farce.” But she also described “the safest and surest
route to the prize.” The trick, she said, is “alternating
platitudinous statement and judicious silence.”