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A Climb Marked by Confidence and Canniness
Monday, May 10, 2010

This article is by Katharine Q. Seelye, Lisa W. Foderaro and Sheryl Gay Stolberg.

WASHINGTON -- She was a creature of Manhattan's liberal, intellectual Upper West Side -- a smart, witty girl who was bold enough at 13 to challenge her family's rabbi over her bat mitzvah, cocky (or perhaps prescient) enough at 17 to pose for her high school yearbook in a judge's robe with a gavel and a quotation from Felix Frankfurter, the Supreme Court justice, underneath.

She was the razor-sharp newspaper editor and history major at Princeton who examined American socialism, and the Supreme Court clerk for a legal giant, Thurgood Marshall, who nicknamed her "Shorty." She was the reformed teenage smoker who confessed to the occasional cigar as she fought Big Tobacco for the Clinton administration, and the literature lover who reread Jane Austen's "Pride and Prejudice" every year.

She was the opera-loving, poker-playing, glass-ceiling-shattering first woman to be dean of Harvard Law School, where she reached out to conservatives (she once held a dinner to honor Supreme Court Justice Antonin Scalia) and healed bitter rifts on the faculty with gestures as simple as offering professors free lunch, just to get them talking.

Elena Kagan has been all of these things, charting a careful and, some might say, calculated path -- never revealing too much of herself, never going too far out on a political limb -- that has led her to the spot she occupies today: the first female solicitor general of the United States, who won confirmation with the support of some important Republicans, and now, at 50, President Obama's nominee for the United States Supreme Court.

"Elena is open-minded, pragmatic and progressive," said Walter Dellinger, a former acting solicitor general in the Clinton administration who is close to both Ms. Kagan and the White House. "Each of those qualities will appeal to some, and not to others.

"Her open-mindedness may disappoint some who want a sure liberal vote on almost every issue. Her pragmatism may disappoint those who believe that mechanical logic can decide all cases. And her progressive personal values will not endear her to the hard right. But that is exactly the combination the president was seeking."

In some respects, Ms. Kagan's traits -- her desire to build consensus through persuasion, her people skills, her ability to listen to others -- mirror those Mr. Obama sees in himself. They are qualities that the president hopes will play out in a leadership role on a deeply divided court. While Ms. Kagan has cited Justice Marshall as one she admires, some expect her to behave more like the center left Justice David Souter, who retired last year, or the master tactician John Paul Stevens, whom she would replace if confirmed.

"She was one of the most strategic people I've ever met, and that's true across lots of aspects of her life," said John Palfrey, a law professor who was hired at Harvard by Ms. Kagan. "She is very effective at playing her cards in every setting I've seen."

Ms. Kagan's paper trail is scant, her academic writings painstakingly nonideological. And unlike Justice Sonia Sotomayor, a fellow New Yorker and Princeton graduate, who has written and spoken extensively about her childhood, Ms. Kagan, the daughter of a lawyer and a schoolteacher, is more private. During her academic and public life, she has rarely spoken of her political beliefs.

When Mr. Dellinger interviewed her recently for a forum at Georgetown Law, he prodded her to talk about her growing up, and the influences that shaped her. She obliged, somewhat reluctantly, serving up only some bland details about her admiration for her parents.

Yet as a young writer for The Princetonian, the student newspaper at Princeton, Ms. Kagan offered clear insight into her worldview. She had spent the summer of 1980 working to elect a liberal Democrat, Liz Holtzman, to the Senate. On Election Night, she drowned her sorrow in vodka and tonic as Ronald Reagan took the White House and Ms. Holtzman lost to "an ultraconservative machine politician," she wrote, named Alfonse D'Amato.

"Where I grew up -- on Manhattan's Upper West Side -- nobody ever admitted to voting for Republicans," Ms. Kagan wrote, in a kind of Democrat's lament. She described the Manhattan of her childhood, where those who won office were "real Democrats -- not the closet Republicans that one sees so often these days but men and women committed to liberal principles and motivated by the ideal of an affirmative and compassionate government."

It was perhaps the last time Ms. Kagan wrote so openly of her own political beliefs. Last year, at her confirmation hearing to become solicitor general, senators focused less on her politics, but on whether she was too much in the ivory tower, with too little lawyerly experience to argue cases before the nation's highest court. That question will almost certainly come up again, given that Ms. Kagan has never been a judge.

"One of the things I would hope to bring to the job is not just book learning, not just the study that I've made of constitutional and public law, but of a kind of wisdom and judgment, a kind of understanding of how to separate the truly important from the spurious," Ms. Kagan said. "I like to think that one of the good things about me is that I know what I don't know and that I figure out how to learn it when I need to learn it."

At Hunter College High School in the 1970s, Ms. Kagan was a standout in a school of ultrabright girls. At least one classmate there, Natalie Bowden, remembers she had an ambitious goal: to become a Supreme Court justice.

"That was a goal from the very beginning," Ms. Bowden said. "She did talk about it then."

The school, which then occupied three floors of an office building at 46th Street and Lexington Avenue, was and remains one of New York's elite public high schools. It drew girls from across the city and an array of backgrounds -- all admitted on the strength of their performance on an entrance exam, rather than money or family connections.

"We were really exposed to tremendous diversity there -- whether it was a Jewish girl from the Upper West Side or a cop's kid from the Bronx or the daughter of a C.E.O. from the Upper East Side or kids whose parents worked in sweatshops in Chinatown," said Ellen M. Purtell, a high school classmate of Ms. Kagan's. "It was never about what you were wearing. It was: Did you bring your best game academically with you today and could you contribute to the discussion?"

The school, which went coed soon after Ms. Kagan left in 1977, was a rigorous, nurturing environment that instilled an ethos of public service.

"There was no driver's ed, there was no home economics, you didn't learn to type," said Jennifer Raab, the president of Hunter College, who was a few years ahead of Ms. Kagan. "You were reading great books and you were going to college. You were going to lead, you were going to give back."

Ms. Kagan, the middle of three children, grew up in a family that embraced such values. They lived in a third-floor apartment at West End Avenue and 75th Street that was comfortable, but not fancy, in the days before the Upper West Side became trendy.

Her mother, Gloria, who died two years ago, taught fifth and sixth grade at Hunter College Elementary School, which Elena attended as a young girl. Her brothers followed their mother's footsteps. Marc, a onetime subway worker and union activist, teaches social studies at the Bronx High School of Science, while Irving teaches social studies at Hunter College High.

Ms. Kagan hewed more to her father's path. With no shortage of modesty, she described herself in her confirmation hearings last year as "a famously excellent teacher." But in terms of dynamism and disposition, family friends say, she is her father's daughter.

Robert Kagan, who died in 1994, represented tenant associations whose rental apartments were being converted to co-ops. A graduate of Yale Law (he was said to have been crushed when his daughter was accepted there but chose Harvard Law instead), he was also immersed in the politics and culture of the West Side.

He fought the controversial Westway highway project as chairman of Community Board 7, an influential citizens' advisory group. He was a trustee of the West End Synagogue and president of the United Parents Association, a citywide parents' advocacy group.

"He was one of these people whom everyone liked and everyone believed," said Bill J. Lubic, Mr. Kagan's law partner of 20 years. "He could deal with people in extremely difficult circumstances -- everything at the grass-roots level on the Upper West Side was a major problem. That was his talent. I firmly believe that that's what his daughter got from their relationship."

The young Ms. Kagan was independent and strong-willed. Mr. Lubic recalls her bat mitzvah -- or bas mitzvah, as it was then called -- in a conservative synagogue, where Elena clashed with the rabbi over some aspect of the ceremony.

"She had strong opinions about what a bas mitzvah should be like, which didn't parallel the wishes of the rabbi," he said. "But they finally worked it out. She negotiated with the rabbi and came to a conclusion that satisfied everybody."

Even as a teenager, Ms. Kagan struck her peers and teachers as someone who was bound for greatness, demonstrating an interest in constitutional issues and displaying qualities that made her well suited for a career in the law.

"Honestly, if you had asked us back then who among you would be a Supreme Court justice some day, she'd certainly be on the short list," Ms. Purtell said. "She was always very thoughtful, deliberate and focused and got along with everyone without any drama. Everybody liked her."

One thing was unusual about Ms. Kagan: she smoked cigarettes. One old friend, Margaret Raymond, said Ms. Kagan was the only girl she knew who smoked in high school. Disco was the rage in New York back then, but Ms. Kagan's was not a partying crowd; on Saturday nights, Ms. Raymond said, they were more apt to sit on the steps of the Metropolitan Museum of Art and talk.

Ms. Kagan emerged as a leader. She became president of the student government, or Government Organization, as it was known, and was appointed to serve on a faculty committee.

"In assemblies and meetings, I used to watch her work," said Irv Steinfink, a retired teacher of history and comparative religion. "She'd stand up on stage and present ideas for votes and she did it very well. She was very self-confident."

Although there was nothing judicial about the student government, in her senior yearbook Ms. Kagan, in wire-rimmed aviator glasses and long hair, is pictured on the group's page wearing a judge's robe, gavel in hand. Underneath is a quotation from Justice Frankfurter, who was appointed to the Supreme Court by Franklin D. Roosevelt.

"Government," it reads, "is itself an art, one of the subtlest of arts."

Ms. Kagan quickly found a place at The Princetonian, the daily student newspaper at Princeton University, when she arrived there in the fall of 1977.

Her circle of friends was a high-powered one, including Eliot Spitzer, the future governor of New York, who became student body president. Bruce Reed, who would hire her as his deputy when he ran the White House Domestic Policy Council under President Bill Clinton, worked for Ms. Kagan at The Princetonian. He wrote "smart-alecky columns, mostly about politics" he said, while she, as editorial chairwoman, seemed "determined to have a serious discussion about the nation's problems."

Still, she was hardly the dour sort, and her writings reflected not only her intensity, but her wry sense of humor. In 1979, she reported for Kiosk, a university magazine, on the Telluride House association, a student-governed academic community at Cornell that was facing money woes.

"Only hours before being interviewed on the association's financial state," Ms. Kagan wrote, "several members of the house had been fleeced in a game of penny-ante poker by this reporter, a very average card player. Seven-card stud, it seemed, was looked on as an activity in which the very considerable intelligence of these men and women could lie completely dormant."

As a history major, Ms. Kagan was reflective and thoughtful, said Prof. Sean Wilentz, her senior thesis adviser, who guided her on an exploration of the history of American radicalism.

She titled the thesis "To the Final Conflict: Socialism in New York City, 1900-1933," and used the acknowledgments to thank her brother Marc, whose "involvement in radical causes," she wrote, "led me to explore the history of American radicalism in the hope of clarifying my own political ideas."

In 153 pages, the paper examines why, despite the rise of the labor movement, the Socialist Party lost political traction in the United States -- a loss that she attributed to fissures and feuding within the movement. "The story is a sad but also a chastening one for those who, more than half a century after socialism's decline, still wish to change America," she wrote.

If that sounds like a defense of socialism, Mr. Wilentz insists that is not the case.

"She was interested in it," he said. "To study something is not to endorse it."

Apart from her life as a student journalist, Ms. Kagan also dabbled in politics, working as a summer intern for Representative Ted Weiss, Democrat of New York, and later as an assistant press secretary for Ms. Holtzman, who was a congresswoman. In her senior year, she signed a manifesto, along with Mr. Spitzer and six others, under the rubric "Campaign for a Democratic University," arguing for students to have a greater voice in university governance -- an effort that fell apart, one member said, when its adherents left for spring break.

She graduated summa cum laude and seemed drawn, friends say, to a career in academia, public service and the law. She did not have to make an immediate choice; in her senior year, Ms. Kagan received a fellowship to Worcester College, Oxford, where she obtained a master's degree in philosophy.

Upon returning to the United States, Ms. Kagan enrolled in law school at Harvard, where, predictably perhaps, she made law review at the end of her second year. It was a time of deep political divisions on the law school campus, but Jeffrey Toobin, a classmate and close friend of Ms. Kagan's who today covers legal issues for The New Yorker and CNN, recalls that Ms. Kagan had an uncanny ability to navigate the philosophical disputes that erupted on the law review board over what kind of articles to publish.

"She was someone who could always navigate easily between and among factions," he said, "and I think that has remained a touchstone throughout her career."

She went on to win two plum clerkships, first for Judge Abner Mikva, of the federal appeals court in Washington, and then for Justice Marshall, where she impressed the male clerks by joining their pickup basketball games in the court's top-floor gym, the so-called "highest court in the land." Harry Litman, a fellow clerk and former United States attorney in Pittsburgh, remembers Ms. Kagan as a "plucky" player. She played guard.

"I wouldn't say she dominated," Mr. Litman said. "It was very much a hacker's game."

During her confirmation hearing, Ms. Kagan recalled that the memorandums she drafted for Justice Marshall reflected his views, not hers.

"You know, I was a 27-year-old pipsqueak and I was working for an 80-year-old giant in the law and a person who, let us be frank, had very strong jurisprudential and legal views," she said. "He knew what he thought about most issues. And for better or for worse, he wasn't really interested in engaging with his clerks on first principles."

In 1988, as she was wrapping up her clerkship, it was time for Ms. Kagan to make a career decision. She had hoped to work for a Democratic administration; when George Bush won the presidency, that did not work out. So she went to work for Williams & Connolly as a litigator in Washington, though she did not last very long. Carol Steiker, a fellow clerk who is now a Harvard law professor, recalls that Ms. Kagan never seemed motivated by money. She told the story of Ms. Kagan's interview with a young associate at a mergers and acquisition firm in New York.

"He was single and he had no family and he was earning -- the sum seemed unimaginable -- $750,000 a year as a young partner. So she asked the guy, 'What do you do with all that money?' And he said, 'I buy art.' I remember her telling that story, and just shaking her head," Ms. Steiker said.

In 1991, having acquired two years of real-world experience practicing law, she joined the faculty at the University of Chicago Law School. That same year, another bright young lawyer and Illinois state senator, Barack Obama, began teaching constitutional law there on the side. Unlike Mr. Obama, who held the title of lecturer, Ms. Kagan was hired as a full-time faculty member, on a tenure track. Geoff Stone, the Chicago law professor and former dean who hired her, said Ms. Kagan was an instant success.

"She was tough, she was independent-minded, she was demanding of her students, she had a good sense of humor," he said, adding, "The students admired her and raved about her right from the beginning."

Richard Epstein, another professor at the school, remembers something else about Ms. Kagan: a fierce ambition. "This was a very focused person," he said. "There was this desperate desire to get ahead of the world and make a mark for herself."

She was so intense that life's mundane tasks would sometimes slip her mind.

"A couple of times when she was so focused on her work, she would park her car and leave it running overnight," said Lawrence Lessig, a longtime friend who taught alongside Ms. Kagan in Chicago. "She just forgot to turn it off."

As a scholar, he said, Ms. Kagan's interests were narrow and somewhat technical. She was interested in questions like when the government could limit free speech. "This is not a subject about which there is any ideological slant," Mr. Stone said. "It's an intellectual puzzle."

She was granted tenure in 1995, despite the reservations of some colleagues who thought she had not published enough. Shortly thereafter, Washington beckoned. Judge Mikva was Mr. Clinton's White House counsel. Remembering Ms. Kagan as a very bright law clerk -- "the pick of the litter" from her year, Mr. Mikva said in an interview -- he wanted her to be one of his associates.

It was an offer she could not resist, though she knew it was a risk. Chicago, like many universities, would allow her leave for up to two years. After that she would have to resign, giving up her tenure. That is exactly what happened -- in December 1996, after she quit her government post and planned her return to Chicago, she was asked by Bruce Reed, her old friend from Princeton who was now Mr. Clinton's director of domestic policy, to serve as his top deputy.

"Elena thought going ahead in politics was the better path," Mr. Epstein said. "I think her preferred path was to stay there an extra year, get a really big administrative position, or a judgeship."

In 1999, Ms. Kagan almost got her chance, when President Clinton nominated her to a seat on the federal appeals court for the District of Columbia, where she had clerked for Judge Mikva. But the nomination fell through; Republicans would not schedule a hearing. Eventually, the judgeship went to John G. Roberts Jr.

The nation's cigarette makers had already been under attack, both in the legal courts and the court of public opinion, by the time Ms. Kagan joined the Clinton policy shop. Coming off the heels of a legal settlement with state attorneys general, the industry now faced a new challenge: a White House plan to give the Food and Drug Administration authority to regulate tobacco.

Ms. Kagan was pressing the case in the Senate.

As the administration's lead negotiator on a far-reaching tobacco bill that was to include F.D.A. regulatory authority, Ms. Kagan was assigned to work with the Republican author of the legislation, John McCain of Arizona. The talks were on-again, off-again, with Ms. Kagan eventually winning the support not only of Mr. McCain, but of another important Republican, Bill Frist of Tennessee.

"She brought Republicans and Democrats together on the toughest, most contentious issue in the tobacco debate," Mr. Reed said.

Although the bill she helped shape never passed (it fell three votes short of the 60 necessary to break a filibuster), it made it out of the Commerce Committee by an extraordinary 19-1 vote in a year, 1998, when Mr. Clinton was facing impeachment and bipartisanship was in exceedingly short supply. Just last year, Congress did give the F.D.A. jurisdiction over cigarette makers -- a triumph, colleagues say, for the legislation Ms. Kagan worked on a decade ago.

While she was respected inside the Clinton White House for her smarts (she would often bat around constitutional law questions with the president), one Clinton colleague, Jamie Gorelick, told The New York Sun in 2006 that Ms. Kagan was seen by some as brusque and overly demanding. She sometimes rubbed people in the Justice Department the wrong way.

"She was extremely aggressive when she was in the White House in trying to carry out the president's agenda," Ms. Gorelick, a former deputy attorney general and a fan of Ms. Kagan, was quoted as saying. "She was not the most popular person there in part because of that."

The tug of academia was powerful for Ms. Kagan, and in 1999, with her time in the White House winding down, she tried to return to Chicago but was rebuffed.

"It was a close call, Professor Epstein said. "There were many people passionately in favor of it, some of whom had the prescience to say she would be a very good dean."

Ms. Kagan landed a visiting professorship at Harvard Law; two years later, she was named a full professor. Two years after that, in 2003, Harvard's president, Lawrence Summers (now Mr. Obama's top economics adviser) named her dean. She took charge of what was, in effect, a dysfunctional family stuck in the legal Dark Ages.

The faculty was at odds with itself. The curriculum was out of date. The gym and the dining facilities were old and run-down. The professors were aging, the students unhappy and the law school had fallen behind Yale in the all-important school ranking in U.S. News & World Report.

Ms. Kagan undertook a top-to-bottom transformation, making the faculty more diverse, at least ideologically, and the school more student-friendly and academically competitive, the facilities more modern. Building consensus became her signature style.

One big task was updating the first-year curriculum. With the faculty unable to come to terms on how to do it, Ms. Kagan coaxed professors into addressing the issue.

"She would have the corporate law people, then the public law people, then the criminal law people to her house for dinner and they would talk about it," said John Manning, a law professor Ms. Kagan poached from Columbia in January 2004. Together with Martha Minow, who succeeded her as dean, she built a proposal to add courses on legislation, international law and problem-solving. The faculty adopted it unanimously.

But perhaps the greatest display of Ms. Kagan's ability to build consensus -- and the hallmark of her tenure as dean -- was her breaking the logjam that had bogged down the hiring of new faculty members.

Hiring had slowed in part because the faculty was divided into ideological factions and each could stop a new hire. Ms. Kagan convinced her colleagues the law school needed fresh blood. She went after star professors at other universities and helped raise significant amounts of money to lure them to Cambridge. When she became dean, in July 2003, there were 81 full-time permanent members of the faculty, according to the law school. By the time she left, in March 2009, she had added 43. Taking into account retirements and other losses, the net expansion during her tenure was 22, an astonishing number in less than six years

Her hiring binge became the subject of an April Fool's parody in 2008 in the Harvard Law Record. "Dean Kagan Hires Every Law Professor in the Country," the headline blared.

Critics have noted that most of the hires were white men. Of the 43 new hires, four were minorities and nine were women; law school officials said the numbers did not reflect the whole story because more offers were made than accepted and some jobs were still open.

But Ms. Kagan broadened the faculty ideologically. Mr. Manning, a conservative, was one of the first professors she hired. Another early recruit was Jack Goldsmith, a Justice Department official in the Bush administration.

As for getting agreement on the new hires, one Harvard law professor who spoke on the condition of anonymity to discuss internal politics at the school said that Ms. Kagan was more of a coalition-builder than a consensus-builder. The faculty was essentially divided into three blocs, this person said: conservative, liberal and one in the middle that usually went along with the dean.

"Elena would count the votes and say, 'This crowd will vote for X and I want X, so that will be two thirds and we'll make it happen,' " the professor said. "It was not that she won over people after they suddenly saw the wisdom of what she wanted."

Perhaps surprisingly for someone so prominent in academia, Ms. Kagan published very little. Except for her deep involvement in a fracas over whether military recruiters could use the law school's facilities -- and her strong antipathy toward the law barring gays and lesbians from serving openly in the armed forces -- Ms. Kagan did not write or speak out on the issues of the day.

One of her biggest accomplishments, according to former students and faculty members, was simply making the campus more student-friendly. She renovated the gym and opened a skating rink and volleyball court. Her first summer, she hired contractors to create a place for students to sit outside Harkness Dining Hall and renovated the Harkness Commons. She created a faculty dining area that served free lunch.

"She was very big on building community at the law school," Mr. Manning said. "She put two big round tables in the room and created a good place where people could get to know each other. She understands human nature very well."

When Ms. Kagan became United States solicitor general, the federal government's top appellate lawyer, in March 2009, she had argued no cases in the United States Supreme Court and had, indeed, just recently become a member of its bar.

Six months later, she made her debut in a case that would turn out to be one of the court's biggest decisions in recent years, Citizens United v. Federal Election Commission.

She lost.

The court ruled against Ms. Kagan in January by a 5-to-4 vote, with the court's more conservative justices in the majority. Now that decision, which allowed unlimited corporate spending in candidate elections, will figure most prominently in Ms. Kagan's upcoming hearing. Mr. Obama has made the case a central theme of his argument that the court under Chief Justice Roberts is engaging in a conservative brand of judicial activism.

Back at Princeton, Ms. Kagan's history professor, Mr. Wilentz, says it makes perfect sense that the woman who argued Citizens United will now be looking to counter what the president regards as the court's rightward tilt.

"I'm not at all surprised that President Obama is drawn to Elena Kagan," Professor Wilentz said. "She was just a wonderful combination of brains and passion."

This article originally appeared in The New York Times.
Washington correspondent Daniel Malloy writes the "Pittsburgh On The Potomac" blog exclusively at PG+, a members-only web site of the Pittsburgh Post-Gazette. Our introduction to PG+ gives you all the details.
First published on May 10, 2010 at 2:00 am
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