Published May 10, 2010
Elena Kagan - U.S. Solicitor General
BORN: April 28, 1960; New York, N.Y.
EDUCATION: Princeton University, A.B. (history), 1981; Oxford University, M. Phil., 1983; Harvard Law School, J.D., 1986
CAREER: Associate, Williams & Connolly LLP (1989-1991); Assistant Professor, Law School, University of Chicago (1991-1995); Professor, Law School, University of Chicago (1995-1997); Associate Counsel to the President, William J. Clinton Administration (1995-1996); Deputy Assistant to the President for Domestic Policy, Staff, Domestic Policy Council, Executive Office of the President, William J. Clinton Administration (1997-1999); Dean, Harvard Law School, Harvard University (2003-2009); U.S. solicitor general (2009 to present).
Kagan was born in 1960 in New York City.
Kagan received her bachelor's degree, summa cum laude, from Princeton in 1981. She attended Worcester College, Oxford, as Princeton's Daniel M. Sachs Graduating Fellow, and received an M. Phil. in 1983. She attended Harvard Law School, where she was supervising editor of the Harvard Law Review, and graduated magna cum laude in 1986.
Kagan clerked for Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit from 1986 to 1987 and then she clerked for Justice Thurgood Marshall of the United States Supreme Court. (Justice Marshall, ascended to the court after serving as solicitor general.) Justice Marshall called her, Kagan once wrote, "to my face and I imagine also behind my back, 'Shorty.' "
Kagan went into private practice in Washington from 1989 until 1991, working as an associate in the Washington, D.C. law firm of Williams & Connolly.
Kagan launched her academic career at the University of Chicago Law School, where she became an assistant professor in 1991 and a tenured professor of law in 1995.
She became associate counsel to Clinton in 1995 and climbed the ladder to deputy assistant to Clinton for domestic policy and deputy director of the Domestic Policy Council in 1997.
Clinton nominated her to the U.S. Court of Appeals for the District of Columbia Circuit in 1999, but she never received a confirmation hearing from the Senate Judiciary Committee. Republicans refused to hold a hearing for her nomination to the U.S. Court of Appeals in 1999, a seat that went to John Roberts, now chief justice of the Supreme Court.
She became a professor at Harvard Law School since 1999 and the school's dean in 2003. Her academic writings are dense, technical and largely nonideological. Kagan has never served as judge and so has no paper trail of judicial opinions.
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 had broad powers that could not be limited by Congress or the courts. In her article, Kagan addressed an earlier and narrower meaning of the phrase. "I do not espouse the unitarian position," 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."
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.
Kagan was confirmed as the 45th solicitor general of the United States in March 2009. Thirty-one Republicans voted against her for solicitor general.
The solicitor general is the executive branch's chief lawyer before the high court. As solicitor general, Kagan supervises appellate litigation involving the federal government and presents the government's views to the Supreme Court. Kagan is the first woman to hold the position of solicitor general. Before her nomination as solicitor general, Kagan had never argued a case before the Supreme Court.
Kagan has argued six cases before the Supreme Court in 2010. Kagan argued the high court's most noteworthy case of the current term, Citizens United v. Federal Election Commission. The Court decided against the government and, in a 5 to 4 decision, said that restrictions on spending by corporations and unions from their general treasuries for or against candidates were unconstitutional.
She has bantered easily with the justices, and she seemed to have a special rapport with Justice Antonin Scalia. Kagan appears popular with the justices, and they seem to appreciate her candor, quick mind and informal style. But she tangles regularly with Chief Justice John G. Roberts Jr., who has emerged as her primary antagonist, frequently criticizing her tactical decisions and trying to corner her at oral arguments.
Possible Trouble for Kagan
For nearly a quarter-century, Harvard Law School refused to help the nation's military recruit its students, because the armed services discriminated against openly gay soldiers. But in 2002, the school relented to pressure from the Bush administration and agreed to allow recruiters on campus.
Kagan became dean of the law school in 2003. ''The military policy that we at the law school are overlooking is terribly wrong, terribly wrong in depriving gay men and lesbians of the opportunity to serve their country,'' she said shortly after becoming dean at the law school's first reunion for its gay, lesbian and bisexual alumni. Later, as the issue intensified with protests on campus, she wrote in an e-mail message to students and faculty, ''I abhor the military's discriminatory recruitment policy.''
Her stand against military recruitment at Harvard Law School because of the armed forces' "Don't Ask, Don't Tell" policy is sure to be a talking point against her. Republicans have signaled that they intend to pounce on Kagan's forceful criticism of the military's policy on gay soldiers -- and her challenge to the law -- if President Obama nominates her to the court.
Kagan made an impassioned effort, as dean of Harvard Law School, to bar military recruiting on campus to protest the law banning openly gay people from serving in the military, which she called "a moral injustice of the first order."
In January 2004 Kagan signed an amicus brief when a coalition of law schools challenged the Solomon Amendment, denying federal funds to schools that barred military recruiters, in an appeal to the United States Court of Appeals for the Third Circuit, in Philadelphia.
In November 2004, the appeals court ruled, 2 to 1, that Solomon was unconstitutional, saying it required law schools ''to express a message that is incompatible with their educational objectives.''
The day after the ruling, Ms. Kagan -- and several other law school deans -- barred military recruiters from their campuses. In Harvard's case, the recruiters were barred only from the main career office, while Ms. Kagan continued to allow them access to students through the student veterans' group.
But the ban lasted only for the spring semester in 2005. The Pentagon told the university over the summer that it would withhold ''all possible funds'' if the law school continued to bar recruiters from the main placement office. So, after consulting with other university officials, Ms. Kagan said, she lifted the ban.
After doing so, she and 39 other Harvard law professors signedan amicus brief urging the Supreme Court to invalidate Solomon. So did the university.
They all received a dose of reality in March 2006 when the court ruled, 8 to 0, against them.
This incident goes a long way toward explaining the 31 Republican votes against confirming her as solicitor general.
Her résumé lacks the one qualification that every member of the current Supreme Court possesses: past judicial service. It has been almost 40 years since a nominee who had not been a judge was appointed to the Supreme Court; the last two were William H. Rehnquist and Lewis F. Powell Jr., both of whom joined the court in 1972.
Kagan was a paid member of an advisory panel for the embattled investment firm Goldman Sachs, federal financial disclosures show. Kagan was a member of the Research Advisory Council of the Goldman Sachs Global Markets Institute, according to the financial disclosures she filed when President Obama appointed her last year to her current post. Kagan served on the Goldman panel from 2005 through 2008, when she was dean of Harvard Law School, and received a $10,000 stipend for her service in 2008, her disclosure forms show.
The advisory panel met once a year to discuss public policy issues and was not involved in any investment decisions, Justice Department spokeswoman Tracy Schmaler said. Still, if Kagan is nominated to replace Stevens, senators will scrutinize those ties to Goldman Sachs, said Northwestern University law professor Lee Epstein.
Many liberal critics are unhappy with Kagan's arguments as solicitor general supporting the "state secrets" doctrine, detentions without trial, and other broad Obama claims of executive power to fight terrorism -- some of them similar to the Bush policies that liberals oppose.
"From the perspective of those who have been advocating change from Bush policies, she has been a disappointment," said Tina Foster of the International Justice Network, who argued against Kagan's deputy Neal Katyal over detention policies in an appeal in January.
"She would spell very bad news" if she became a Supreme Court justice, said Vince Warren, executive director of the Center for Constitutional Rights, which has long challenged Bush and now Obama detention policies. "We don't see any basis to assume she does not embrace the Bush view of executive power."
Timeline of Kagan's Life
April 28, 1960: Born in New York City.
1981: Graduates with B.A. in history from Princeton University.
1983: Receives M.Phil. from Oxford University's Worcester College.
1986: Graduates from Harvard Law School.
1986-87: Clerks for Judge Abner J. Mikva of the U.S. Court of Appeals for the D.C. Circuit.
1987-88: Clerks for Justice Thurgood Marshall of the U.S. Supreme Court.
1988: Works as staff member, Dukakis for President campaign.
1989-91: Works as an associate at Williams & Connolly, a Washington D.C. law firm.
1991-95: Joins the University of Chicago Law School as an assistant professor; becomes a full professor in 1995.
Summer 1993: Works as special counsel to the Senate Judiciary Committee on Ruth Bader Ginsburg's nomination to the Supreme Court.
1997-99: Works as deputy assistant to the president for domestic policy and deputy director of the White House Domestic Policy Council.
1999-2009: Becomes a professor at Harvard Law School. In 2003, named as dean of Harvard Law School.
March 2009 - present: U.S. solicitor general.