March 13, 2018

The Next Supreme Court Justice: Is she “the kind of person you’d like to go to a baseball game with”?

President Obama recently nominated current Solicitor General of the United States Elena Kagan to fill the latest empty Supreme Court seat. Kagan, who has been Solicitor General since January 2009, has no prior experience as a judge. This is something of an anomaly in recent years; if confirmed, she would be the first Justice on the bench in almost four decades with no judicial experience, the last being the late Chief Justice William Rehnquist. Prior to serving as Solicitor General, Kagan had little courtroom experience and had never argued a case in the US Supreme Court. This is not necessarily uncommon for solicitors general, as at least two recent solicitors also had no experience in front of the Supreme Court. Despite these apparent shortcomings, Kagan has been a topic of Supreme Court discussion since before President Obama’s election.

Kagan received her undergraduate degree from Princeton University before attending Harvard Law School, where friends said she was “the kind of person you’d like to go to a baseball game with,”[1] “extremely hard working…[and] very serious about the law.”[2] If confirmed, Kagan would be the fourth female justice, and the eighth Jewish justice in Supreme Court history.

After attending law school, Kagan clerked for two federal judges, including US Supreme Court Justice Thurgood Marshall. She also worked in private practice in Washington DC and in academia, where she published a number of law review articles on constitutional issues. Kagan was also the first female Dean of Harvard Law School. While acting as Dean, Kagan was an outspoken opponent of the military’s “Don’t Ask Don’t Tell” policy, which prompted her to ban military recruiters from campus.

Kagan worked in the Clinton administration as Associate White House Counsel (1995-1996), and Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council (1997-1999). The Senate Judiciary Committee is currently seeking 160,000 pages of documents from the time Kagan spent in these positions. The majority of these documents will be made public, but some will not because of purported “statutory restrictions” (though they will be available to the Senators on a private basis). Many of the files may not reveal much about Kagan’s politics, as she was acting in an advisory position, but some argue that the documents demonstrate Kagan’s tendency to insert politics into the courtroom. The documents will also reveal Kagan’s role in the Paula Jones sexual harassment suit, where Kagan argued that the case should be delayed until President Clinton left office because it would disrupt the President’s performance as chief executive.

Since her nomination to the Supreme Court, some have expressed concern over Kagan’s lack of judicial experience, while others wonder what affect her confirmation would have on the political balance of the Court. The New York Times noted that she has been supportive of strong executive (presidential) power, and others have commented that she may swing the balance of the Court to the Right. Of course, no one will know unless she is ultimately confirmed. Her confirmation hearings begin June 28. Keep your eyes and ears open for more news on this potential change to the Supreme Court.

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[1] Harry Litman, who also clerked for Supreme Court Justice Thurgood Marshall with Kagan. Pals from Student Days Remember a Determined Kagan, CNN Politics (May 11, 2010)

[2] John Barrett, a friend from Harvard Law School. Id.