"Superstar" Elena Kagan Is Named SG

Early favorable reviews are coming in about President-elect Barack Obama's decision to nominate Harvard Law School Dean Elena Kagan to be the next solicitor general -- the first woman in the role.

"Absolutely superb -- I have unbounded admiration for her," said Harvard Law School prof Laurence Tribe this morning. Tribe has known Kagan as one of his students as well as his dean. "She transformed an almost dysfunctional institution into the best law school in the world."

"She's completely top-notch," says Harry Litman, who co-clerked with Kagan for both Abner Mikva on the U.S. Court of Appeals for the D.C. Circuit and for Thurgood Marshall on the Supreme Court two decades ago. "She's whip-smart, with integrity, a really hard-worker and a great writer. It was clear she was a superstar-to-be."

"A brilliant, talented young lawyer -- a star from the outset," echoed Kevin Baine, a Williams & Connolly partner who worked with her during her stint in private practice from 1989 to 1991. "I wanted her to stay and practice forever here. Imagine how good that would have been for us." 

"I'm thrilled finally that there will be a woman in that position," said Patricia Millett, an Akin Gump Strauss Hauer & Feld partner who served in the SG's office until September 2007. "Those halls [at the Justice Department] are filled with a lot of portraits of men." (Barbara Underwood was acting SG during early 2001.)

Adds former SG Seth Waxman, "I'm terrifically excited that President-Elect Obama has chosen Elena -- a good friend and former colleague. The country is long overdue for a woman to serve in that important position, and Elena has all the skills to be a marvelous SG." 

An academic who also worked in the Clinton White House as well as at Williams & Connolly, Kagan was nominated in 1999 by Clinton to fill the vacancy in the D.C. Circuit that John Roberts Jr. ultimately filled when George W. Bush became president. (Her nomination died in the waning days of the Clinton Administration.)

As varied as her background is, it does not include actually arguing before the Supreme Court, as she will be called on to do in her new job. But none of those interviewed said this was a serious deficit, given her other talents.

"She certainly has a lot of experience persuading some independent thinkers," says Millett, referring to Harvard law professors. "Many solicitors general have come to the position without that experience, and it wasn't held against them."

Litman thinks her integrity and straight-shooting will make up for any lack of appellate experience. He recalls Kagan drafting a dissent for Marshall where it might have been tempting to bend some precedents to fit the justice's arguments. She wouldn't do it. "The currency for SGs is to build credibility with the justices, and she will do that."

Tribe adds that "she will be the quickest study" imaginable as far as appellate advocacy goes, but needs no study in bringing judgment to the job. "She will have the most well-tuned sense of what is plausible and possible in terms of constitutional argument," says Tribe. 

That judgment will be pressed into service quickly, Tribe added, in the case of Ali al-Marri now before the Supreme Court. Al-Marri is a Qatari citizen who was legally in the United States when he taken in and held in a Navy brig in South Carolina as an enemy combatant. The Obama administration will have to tell the Court next month if it will defend al-Marri's detention.

Comments

[bobf]

Appointing yet another former D.C. law/lobbying firm member and Clinton White House lawyer/staffperson from the 1990s to represent the Obama Administration doesn't seem like much of a "change" in 2009 in how the U.S. government operates.

[HLS Student]

Congrats, Dean Kagan! We love you and will hate to see you go, but our loss is the country's gain.

[Bill from Fairfax]

Notwithstanding these accolades, it is still difficult for me as a practitioner to accept that someone with two years of practice experience and six years of public sector experience (2 as clerk and 4 as a White House attorney) is the person that POTUS-elect wants as SG. I cannot avoid the conclusion that this is a parking spot for her until a seat comes open on the SCOTUS.