Obama’s Choice for Solicitor General Has Left a Breach in a Long Paper Trail<\/p>\n
By ADAM LIPTAK
\nPublished: January 6, 2009<\/p>\n
WASHINGTON \u2014 The New Republic called Elena Kagan a “wonderwonk” for
\nher work on tobacco legislation in the Clinton administration. She
\nwas, the magazine said, “a nerd who can talk tough.”<\/p>\n
Justice Thurgood Marshall, for whom she served as a law clerk, called
\nher, Ms. Kagan once wrote, “to my face and I imagine also behind my
\nback, ‘Shorty.’ “<\/p>\n
And if she is confirmed by the Senate, Chief Justice John G. Roberts
\nJr. will welcome Elena Kagan to the Supreme Court lectern as “General
\nKagan,” the first female solicitor general.<\/p>\n
The solicitor general, who is the only federal official required by
\nstatute to be “learned in the law” and is sometimes referred to
\ninformally as “the 10th justice,” supervises appellate litigation
\ninvolving the federal government and presents the government’s views
\nto the Supreme Court.<\/p>\n
Ms. Kagan, 48, is dean of Harvard Law School. She has a powerful and
\nvaried r\u00e9sum\u00e9 and has produced a substantial paper trail. But she has
\nprovided few clues about where she stands on the great legal issues of
\nthe day, notably the Bush administration’s broad assertions of
\nunilateral executive power in areas like detention, surveillance,
\ninterrogation and rendition.<\/p>\n
She did offer a glimpse of her views in a 2001 article in The Harvard
\nLaw Review that considered the “unitary executive” theory.<\/p>\n
The phrase is sometimes used as shorthand for the Bush
\nadministration’s assertion that it has broad powers that cannot be
\nlimited by Congress or the courts. In her article, Ms. Kagan addressed
\nan earlier and narrower meaning of the phrase, one made popular during
\nthe Reagan administration, concerning the scope of the president’s
\npower to control the executive branch itself.<\/p>\n
She found that such presidential control “expanded dramatically during
\nthe Clinton presidency,” a development she largely welcomed. But she
\nsaid Congress, experts and interest groups should also play a role in
\ninforming the executive branch’s actions.<\/p>\n
“I do not espouse the unitarian position,” Ms. Kagan wrote. “President
\nClinton’s assertion of directive authority over administration, more
\nthan President Reagan’s assertion of a general supervisory authority,
\nraises serious constitutional questions.”<\/p>\n
Ms. Kagan, whose scholarly interests include administrative law and
\nthe First Amendment, is widely credited with bringing harmony and star
\nfaculty members to the notoriously dysfunctional Harvard Law School.<\/p>\n
David Kessler, a third-year student who is president of the school’s
\nstudent government, said Ms. Kagan “has an exceptionally positive
\nreputation.”<\/p>\n
“She’s always been both pragmatic and fair,” Mr. Kessler said.<\/p>\n
Ms. Kagan served as a lawyer and policy adviser under President Bill
\nClinton, who nominated her to the United States Court of Appeals for
\nthe District of Columbia Circuit. That nomination stalled in the
\nSenate.<\/p>\n
Ms. Kagan has never argued a case before the Supreme Court, a gap
\nlikely to be a subject at her confirmation hearing.<\/p>\n
Lincoln Caplan, author of “The Tenth Justice: The Solicitor General
\nand the Rule of Law,” said Ms. Kagan would bring exceptional
\nqualifications to the job, including “her legal scholarship and her
\nhands-on experience in the executive branch, as well as her obvious
\nintelligence, skills as an administrator, problem-solver and broker,
\nand extensive relationships in the part of the legal culture that
\nmatters to the solicitor general.”<\/p>\n
“I also suspect she’ll turn out to be an impressive oral advocate,”
\nMr. Caplan said.<\/p>\n
Both Ms. Kagan and President-elect Barack Obama attended Harvard Law
\nSchool, though their time there did not overlap.<\/p>\n
In an e-mailed note to faculty members, students and alumni on Monday,
\nMs. Kagan wrote of her nomination that “it adds a special touch of
\nsweetness to the occasion that the person making the nomination, in
\nwhose capacity for greatness I deeply believe, is himself a member of
\nthe group to which I am writing.”<\/p>\n
The nomination makes Ms. Kagan an early front-runner for a seat on the
\nSupreme Court. Justice Marshall was solicitor general before he was
\nappointed to the court in 1967.<\/p>\n
Most of Ms. Kagan’s legal writings are dense, hedged and moderate. But
\nin a 1995 review of a book on Senate confirmation fights, she made a
\nstatement she may come to regret.<\/p>\n
“When the Senate ceases to engage nominees in meaningful discussion of
\nlegal issues,” she wrote, “the confirmation process takes on an air of
\nvacuity and farce.” But she also described “the safest and surest
\nroute to the prize.” The trick, she said, is “alternating
\nplatitudinous statement and judicious silence.”<\/p>\n","protected":false},"excerpt":{"rendered":"
Obama’s Choice for Solicitor General Has Left a Breach in a Long Paper Trail By ADAM LIPTAK Published: January 6, 2009 WASHINGTON \u2014 The New Republic called Elena Kagan a “wonderwonk” for her work on tobacco legislation in the Clinton … Continue reading