The Kagan File

The praise coming from Harvard Law School colleagues of Elena Kagan, who was named this week to be  the next solicitor general, is effusive -- and, it turns out, longstanding.

In a folder in Box 571 of the Thurgood Marshall papers at the Library of Congress, one can find Kagan's 1986 application to be Marshall's law clerk, along with recommendations from five Harvard Law professors -- no one else --  as well as her resume and even her law school transcript. That transcript indicates, interestingly, that Kagan got something of a slow start at the law school, with no A's in her first semester 1L courses. 

Kagan's Feb. 19, 1986 application letter to Marshall was straightforward and brief, ending with the sentence, "I would be honored to serve as your clerk."

In a letter of recommendation, professor Charles Nesson, who worked with Kagan as she edited an article of his for the Harvard Law Review in 1985 (she was a supervising editor,) said of her, "She understood my arguments very well, pointed out weaknesses with precision and tact, suggested specific ways to remedy them, pushed me to say what I wanted to express, and helped me express it... Indeed, I thought she was fabulous in every aspect of writing right down to spelling. I cannot give her a higher recommendation."

Abram Chayes, who taught Kagan civil procedure and then supervised her as a teaching assistant, was similarly enthusiastic. "I have no hesitation in saying she is one of the very finest students I have ever had -- not in her class alone, but among the handful of outstanding people in a decade." Confidently he added, "I believe she will number among your finest law clerks."

Kagan was also a research assistant to professor Richard Fallon, who wrote to Marshall, "Her work has been superb. She has a tough-minded lawyer's sense for the extraneous andthe relevant; her critical faculties are good; and she writes clearly and well."

Randall Kennedy, himself a former Marshall clerk, reported to the justice that in his class on race and constitutional law, he had given her an A+. "Her examination paper was among the finest in a large class of highly motivated students.... I recommend her unreservedly."

Not all of Kagan's grades were A's, and one of her recommenders dealt with that fact. According to Kagan's transcript, in her first semester at the law school in 1984 she got a B- in torts and a B in criminal law. Her mark in Legal Methods is listed as "Cr." and there's a dash in the column that lists how many credits she received. She recovered in the spring semester, getting all A's except for one A-.

Frank Michelman, her property prof, said in his letter, "I am looking at her transcript as I write, and there's just no doubt that her first-year spring-term grades... not the fall-term ones, are the true reflection of her capacity and her learning. Whatever was in her way on those fall term exams, it wasn't affecting her class performance even during the fall, and evidently was gone by exam time in May."

Michelman also wrote, "From the very first exchange through the rest of that first year, Elena struck me as a student of outstanding calibre... She has about her the qualities both of seriousness and warmth, genuine and evident though not ebullient or obtrusive."

The campaign of the Harvard profs on Kagan's behalf worked. Marshall gave her the good news in a June 27, 1986 letter, telling her she was hired for the 1987-1988 term. (She clerked for Abner Mikva on the U.S. Court of Appeals for the D.C. Circuit in the interim.) "We look forward to having you with us next year," Marshall wrote.

Another document in her file notes she was placed on the payroll on July 13, 1987, at the salary of "$32,567 per annum."