Thursday, May 20, 2010
Kagan was born and raised in New York City. After attending Princeton, Oxford, and Harvard Law School, she completed federal Court of Appeals and Supreme Court clerkships. She began her career as a professor at the University of Chicago Law School, leaving to serve as an Associate White House Counsel and later policy adviser under President Clinton. After a nomination to the United States Court of Appeals for the D.C. Circuit which expired without action, she became a professor at Harvard Law School and was later named its Dean.
She was appointed Solicitor General by President Barack Obama on January 26, 2009. On May 10, 2010, President Obama nominated Kagan to the Supreme Court to fill the vacancy from the impending retirement of Justice John Paul Stevens at the end of the Supreme Court's 2009–2010 term.
Personal life and education
Kagan was born in New York City, the middle of three children, on the city's Upper West Side. Her mother, Gloria Gittelman Kagan, taught fifth and sixth grade at Hunter College Elementary School, and her father, Robert Kagan, was an attorney. Kagan's two brothers are public school teachers, as their mother had been before them.
Kagan and her family lived in a third-floor apartment at West End Avenue and 75th Street and attended Lincoln Square Synagogue. Kagan was independent and strong-willed in her youth, according to Bill Lubic, a former law partner, who recalled Kagan clashed with her Orthodox rabbi over aspects of her bat mitzvah. "She had strong opinions about what a bat mitzvah should be like, which didn’t parallel the wishes of the rabbi," remembered Lubic. "But they finally worked it out. She negotiated with the rabbi and came to a conclusion that satisfied everybody." Kagan's rabbi, Shlomo Riskin, had never performed a ritual bat mitzvah before.
"Elena Kagan felt very strongly that there should be ritual bat mitzvah in the synagogue, no less important than the ritual bar mitzvah...This was really the first formal bat mitzvah we had," said Riskin. Kagan asked to read from the Torah on a Saturday morning; ultimately she read on a Friday night, May 18, 1973, from the Book of Ruth. Today, she identifies with Conservative Judaism.
Childhood friend Margaret Raymond recalled that Kagan was a teenage smoker but not a partier; on Saturday nights, she and Kagan "were more apt to sit on the steps of the Metropolitan Museum of Art and talk." Kagan also loved literature and re-read Jane Austen's Pride and Prejudice every year. After graduating from Hunter College High School in 1977, Kagan attended Princeton University. At Princeton, she wrote a senior thesis under historian Sean Wilentz titled "To the Final Conflict: Socialism in New York City, 1900-1933", studying the socialist movement in New York City in the early 20th century. Professor Wilentz insists, however, that she did not mean to defend socialism, noting that, "She was interested in it. To study something is not to endorse it."Wilentz called Kagan "one of the foremost legal minds in the country, she is still the witty, engaging, down-to-earth person I proudly remember from her undergraduate days."Kagan earned an A.B. in history from the school, graduatingsumma cum laude, in 1981.
As an undergraduate, Kagan also served as editorial chair of the Daily Princetonian. Along with eight other students (including Eliot Spitzer, student body president at Princeton), Kagan penned the Declaration of the Campaign for a Democratic University, which called for "a fundamental restructuring of university governance" and condemned Princeton's administration for making decisions "behind closed doors".
She received Princeton's Daniel M. Sachs Class of 1960 Graduating Scholarship, one of the highest general awards conferred by the university, which enabled her to study at Worcester College, Oxford University. She earned a master of philosophy at Oxford in 1983.She received a juris doctor, magna cum laude, at Harvard Law School in 1986, where she was supervisory editor of the Harvard Law Review. Friend Jeffrey Toobin recalled Kagan at Harvard Law "stood out from the start as one with a formidable mind." "She’s good with people," added Toobin. "At the time, the law school was a politically charged and divided place. She navigated the factions with ease, and won the respect of everyone."
Kagan has never married, and has no children.
Early legal and academic career
Kagan was a law clerk for Judge Abner Mikva of the U.S. Court of Appeals for the District of Columbia Circuit in 1987 and for Justice Thurgood Marshall of the U.S. Supreme Court in 1988; Marshall nicknamed the 5 foot 3 inch Kagan "Shorty". She later entered private practice as an associate at the Washington, D.C., law firm of Williams & Connolly.
Kagan joined the faculty of the University of Chicago Law School as an assistant professor in 1991 and became a tenured professor of law in 1995. While at Chicago, she published "Regulation of Hate Speech and Pornography After R.A.V.," a law review article on the regulation of First Amendment hate speech in the wake of the Supreme Court's ruling in R.A.V. v. City of St. Paul; "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine," an article discussing the significance of governmental motive in regulating speech; and, "Confirmation Messes, Old and New," a review of a book by Stephen L. Carter discussing the judicial confirmation process.
According to her colleagues, Kagan's students raved about and admired Kagan from the beginning, and she was granted tenure "despite the reservations of some colleagues who thought she had not published enough."
White House and judicial nomination
From 1995 to 1999, Kagan served as President Bill Clinton's Associate White House Counsel and Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council. While serving in that position, Kagan co-authored a May 13, 1997 memo to the President urging him to support a ban on late-term abortions stating that, “We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto.”
In 1996 she wrote an article in the University of Chicago Law Review entitled, “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.” Kagan argued that government has the right, even considering the First Amendment, to restrict free speech, when the government believes the speech is "harmful", as long as the restriction is done with good intentions.
On June 17, 1999, President Clinton nominated Kagan to the U.S. Court of Appeals for the District of Columbia Circuit, to replace James L. Buckley, who had taken senior status in 1996. The Senate Judiciary Committee's Republican Chairman Orrin Hatch scheduled no hearing, effectively ending her nomination. When Clinton's term ended, her nomination to the D.C. Circuit Court lapsed, as did the nomination of fellow Clinton nominee Allen Snyder.
Return to academia
After her service in the White House and her lapsed judicial nomination, Kagan returned to academia in 1999 as a visiting professor at Harvard Law School. While at Harvard, she authored "Presidential Administration," a law review article on administrative law, including the role of aiding the President of the United States in formulating and influencing federal administrative and regulatory law. That 2001 Harvard Law Review article was honored as the year's top scholarly article by the American Bar Association's Section on Administrative Law and Regulatory Practice, and is being developed into a book to be published by Harvard University Press.
Kagan as Dean of Harvard Law School
In 2001, she was named a full professor and in 2003 was the first woman to be named Dean of the Law School by Harvard University's then-president Lawrence Summers, who now serves as director of the National Economic Council She succeeded Robert C. Clark, who had served as dean for over a decade. The focus of her tenure was on improving student satisfaction. Efforts included constructing new facilities and reforming the first-year curriculum, as well as aesthetic changes and creature comforts, such as free morning coffee. She has been credited for employing a consensus-building leadership style, which surmounted the school's previous ideological discord.
In her capacity as dean, Kagan inherited a $400 million capital campaign, "Setting the Standard", in 2003. It ended in 2008 with a record breaking $476 million raised, 19% more than the original goal. Kagan made a number of prominent new hires, increasing the size of the faculty considerably. Her coups included hiring legal scholar Cass Sunstein away from the University of Chicago and Lawrence Lessig away from Stanford. She also broke a logjam on conservative hires by bringing in such scholars as Jack Goldsmith, who had been serving in the Bush administration.
During her deanship, Kagan supported a policy barring military recruiters from campus, because she felt that the military's "Don't Ask, Don't Tell" policy discriminated against gays and lesbians. According to Campus Progress,
As dean, Kagan supported a lawsuit intended to overturn the Solomon Amendment so military recruiters might be banned from the grounds of schools like Harvard. When a federal appeals court ruled the Pentagon could not withhold funds, she banned the military from Harvard’s campus once again. The case was challenged in the Supreme Court, which ruled the military could indeed require schools to allow recruiters if they wanted to receive federal money. Kagan, though she allowed the military back, simultaneously urged students to demonstrate against Don’t Ask, Don’t Tell.
In October 2003, Kagan transmitted an e-mail to students and faculty deploring that military recruiters had shown up on campus in violation of the school's anti-discrimination policy. It read, "This action causes me deep distress. I abhor the military's discriminatory recruitment policy." She also wrote that it was "a profound wrong — a moral injustice of the first order."
According to the New York Times, while dean of Harvard Law School, Kagan was criticized for allegedly being too lenient on two Harvard law professors who had unintentionally committed plagiarism. Normally, students who do such a thing are required to leave the school, but Kagan did not require that of the two professors. An editorial in the Harvard Crimson said, "The evident double standard sets a poor example for the student body and for the wider community.."
From 2005 through 2008, Kagan was a member of the Research Advisory Council of the Goldman Sachs Global Markets Institute and received a $10,000 stipend for her service in 2008.
On January 5, 2009, President-elect Barack Obama announced he would nominate Kagan to be Solicitor General. Before this appointment she had limited courtroom experience. She had never argued a case at trial, and had not argued before the Supreme Court of the United States. This is not uncommon, however, as at least two previous Solicitors General, Robert Bork and Kenneth Starr, had no previous appellate experience at the Supreme Court, though Starr served as a Circuit Court Judge prior to acting as Solicitor General.
Kagan was confirmed by the U.S. Senate on March 19, 2009, by a vote of 61 to 31, becoming the first woman to hold the position. She made her first appearance in oral argument before the Supreme Court on September 9, 2009, in Citizens United v. Federal Election Commission.
The First Amendment Center and the Cato Institute later expressed concern over arguments Kagan advanced as a part of her role as solicitor general. For example, during her time as Solicitor General, Kagan prepared a brief defending a law later ruled unconstitutional that would have criminalized depictions of animal cruelty. During her solicitor general confirmation hearing, she said that "there is no federal constitutional right to same-sex marriage." Also during her solicitor general confirmation, Kagan was asked about the Defense of Marriage Act, under which states don’t have to recognize same-sex marriages from other states. She said she would defend the act.
Indefinite detention without trial
At her confirmation hearing, Kagan also drew criticism from liberal activists for arguing that battlefield law, including indefinite detention without a trial, could apply outside of traditional battlefields. The New York Times paraphrases Kagan as saying "that someone suspected of helping finance Al Qaeda should be subject to battlefield law — indefinite detention without a trial — even if he were captured in a place like the Philippines rather than a physical battle zone."
Kagan meets with President Barack Obama in the Oval Office, April 30, 2010.
Main article: Elena Kagan Supreme Court nomination
Long before the election of President Barack Obama, Kagan was the subject of media speculation that she might be nominated to the Supreme Court of the United States if a Democratic president were elected in 2008. This speculation increased after the May 1, 2009 resignation letter of Associate Justice David H. Souter, declaring his retirement, effective at the start of the Court's summer 2009 recess. It was speculated that her position as Solicitor General would increase Kagan's chances for nomination, since solicitors general have been considered potential nominees to the Supreme Court in the past. On May 13, 2009, the Associated Press reported that President Obama was considering Kagan, among others, for possible appointment to the United States Supreme Court. On May 26, 2009, however, President Obama announced that he was nominating Sonia Sotomayor to be the next United States Supreme Court Justice.
On April 9, 2010, Justice John Paul Stevens announced that he would retire at the start of the Court's summer 2010 recess, triggering new speculation about Kagan's potential nomination to the bench.In a Fresh Dialogues interview, Jeffrey Toobin — a Supreme Court analyst and Kagan's friend and law school classmate — speculated that Kagan would likely be President Obama's nominee, describing her as "very much an Obama type person, a Democrat..." This possibility has alarmed many liberals and progressives, who worry that "replacing Stevens with Kagan risks moving the Court to the Right, perhaps substantially to the Right."
As Kagan's name was mentioned as a possible replacement for Justice Stevens, the New York Times noted that she "has supported assertions of executive power."This view of vast executive power has caused some commentators to fear that she would reverse the delicate majority in favor of protecting civil liberties on the Supreme Court were she to replace Stevens.
On May 9, 2010, it was reported that President Obama had chosen Kagan as his nominee to succeed Supreme Court Justice John Paul Stevens. If confirmed by the Senate, Kagan would be the first justice in nearly four decades without any prior experience as a judge; the last justice confirmed without prior experience as a judge was William Rehnquist in 1972; she would also become the fourth female justice in the Supreme Court's history, and the third on the current bench. She would also become the eighth Jewish justice in the Supreme Court's history, and the third on the current bench.