Twenty-nine former Supreme Court clerks who served with nominee Elena Kagan during the 1987-88 Supreme Court term added their voices Wednesday to the White House’s roll-out of support for Kagan’s confirmation.
“As a group we had – and continue to have – different views from each other on a number of issues,” they wrote in a letter to the Senate Judiciary Committee. “Regardless of whether any given one of us agreed or disagreed with Elena on a particular issue, however, we came to appreciate her approach in those situations. She always has had a wonderful temperament, and is an extraordinary listener who is genuinely interested in what other people think. Elena is able to advance, and at times adjust, her positions while maintaining respect for and openness to other views.”
In a conference call with members of the press, three of the former clerks—Harry Litman, who, like Kagan, clerked for Justice Thurgood Marshall; Teresa Wynn Roseborough, former clerk to Justice John Paul Stevens, and Peter Keisler, former clerk to Justice Anthony M. Kennedy—stressed Kagan’s intelligence, open-mindedness and fairness, evident even at that early stage of her career.
“We were obligated to research our justice’s views and to bring those to bear in writing draft opinions and memoranda,” said Roseborough, senior chief litigation counsel at MetLife. ‘I think Elena took that responsibility very seriously. I’m not aware of her trying to impose her own views. I don’t think she was thought of as either being liberal or conservative, just as a quintessential thinker who approached things without an agenda. She wanted to understand the points of agreement among the justices and wanted to bring those to bear as much as possible to the cases we worked on.”
When asked if he agreed with Roseborough that Kagan was not viewed as being either liberal or conservative by her fellow clerks, Keisler, who also clerked for former D.C. Circuit Judge Robert Bork and is a partner in the Washington office of Sidley Austin, said, “I’m sure everyone of the clerks had his or her own political views. When you approached Elena about a case, that conversation was free of ideological baggage.” (As the BLT reported here, Bork said today that Kagan’s admiration of an Israeli judge is “disqualifying in and of itself” for her nomination, putting him at odds with Kagan’s support by all former U.S. solicitors general since 1985.)
Kagan has been criticized by Sens. Jeff Sessions (R-Ala.) and Jon Kyl (R-Ariz.) for clerk memos about certain petitions for certiorari. The memos warned Marshall that if review were granted, the Court’s then-conservative majority could move the law in a direction contrary to Marshall’s views. Sessions and Kyl have called such considerations “troubling” and evidence of a “political bent” to her legal work.
Litman and Roseborough disagreed, saying other justices do think tactically about cert grants.
“What was very important to us was Justice Marshall was not in the cert pool (rotating clerks who write memos recommending grants or denials for participating justices), and he was looking to us to really look at cert petitions and focus on things he was very interested in,” said Litman, of counsel to Washington’s Phillips & Cohen. “It was a valid concern of his, thus it became a valid concern of ours.”
Roseborough added that Stevens also did not participate in the cert pool. “When you’re writing a memo that you know will only go to that justice, you’re at the peak of your obligation to tell the justice what you think of the case and how it will end up in terms of his viewpoint.”
On a personal note, Roseborough said that each of the clerks believed he or she was a good writer, but Kagan was known among the clerks as a particularly good writer. Each year, she said, the Court’s reporter of decisions gave an award to the clerk who had the least errors to correct and Kagan won the award their year.