At Harvard, dean eased faculty strife

By Jonathan Saltzman and Tracy Jan
Globe Staff / May 11, 2010

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If she is confirmed as a Supreme Court justice, Elena Kagan will be well prepared for the fractiousness that often marks the nation’s highest court, having brought peace and, some say, happiness to Harvard Law School.

During her nearly six years as the first female dean of the school, Kagan earned high marks for building consensus among the faculty’s notoriously warring factions. She modernized curriculum and attracted academic stars, transforming an institution that had a stellar name but was, by many accounts, ossified and often dysfunctional.

She made 43 teaching appointments, a stunning number, given that divisions among the faculty, which must approve hirings, had resulted in a logjam. Several of her appointments included professors with conservative leanings, which helped assuage complaints that Harvard did not welcome such views.

In ways big and small, say instructors and students, Kagan also humanized Harvard Law. She installed benches and tables on a new patio, distributed complimentary coffee, decorated the drab hallways with framed artwork, and even set up an ice-skating rink.

“The students at Harvard Law were always grateful to the school and always deeply respected it, but it would have been the unusual student that said, ‘I enjoyed being there.’ But that changed with her,’’ said Randall L. Kennedy, who had Kagan as a student in his class on race relations law in the mid-1980s, saw her return as a professor in 1999, and then worked for her when she became dean in 2003.

In nominating her to become the nation’s 112th justice, President Obama praised Kagan as a “consensus builder’’ known for “her openness to a wide range of viewpoints.’’

Obama’s characterization was no exaggeration, according to Kagan’s former colleagues and students. Although some conservatives are denouncing her as a liberal and some liberals are calling her a conservative, people who know her at Harvard say she is no ideologue.

Her hires in recent years include Jack Goldsmith, a former Bush White house lawyer and prominent skeptic of international law, and John Manning, an administrative law expert and constitutional scholar.

The Goldsmith hiring in 2004 triggered a backlash, as critics on the faculty questioned whether Goldsmith, who had served under Attorney General John Ashcroft, helped write Bush administration memos authorizing torture of suspected terrorists.

After Goldsmith assured her he had not, Kagan rallied support for him, and the faculty end up approving his appointment by a wide margin.

Kagan’s overriding concern was not the politics of faculty members but whether they would be top-notch teachers and popular with students, according to professor Charles Fried, who helped advise Kagan on new hires. Goldsmith has turned out to be a star, said Fried, a former solicitor general in the Reagan administration, and “people all over the country . . . want to steal him away.’’

Conservative students praise Kagan for such actions.

“One of her most important contributions was bringing in people with a lot of different viewpoints and increasing the kinds of perspectives students are exposed to in the classroom,’’ said Elizabeth Ryan, a third-year law student and member of the Federalist Society, which promotes a conservative voice on the left-leaning campus.

Kagan’s ability to reach across political and ideological lines was evident even in her early 20s as a young law student, said people who know her. The alliances she built then, as an editor of the Harvard Law Review, would serve her decades later.

While most students were polarized along political lines and sure of their convictions, Kagan was “known as having friends across the political divide,’’ said Carol Steiker, another professor.

One of the most conservative students in the Harvard Law class of 1986 was Miguel Estrada, who was also a friend of Kagan’s on the law review, Steiker said. Like Kagan, he was later nominated to the US Court of Appeals for the District of Columbia Circuit. Like Kagan, he was never confirmed; his 2001 nomination was derailed by a filibuster mounted by Senate Democrats when he gave up in 2003.

When Kagan became dean, she named Estrada, later an adviser to Rudy Giuliani’s presidential campaign, to a committee advising her on how the school should be run.

Still, Kagan angered some conservative students with her staunch opposition to allowing military recruiters to use on-campus interviewing facilities because, she said in a 2008 e-mail to the law school community, she believed “discrimination against gays and lesbians seeking to enter military service is wrong, both unwise and unjust.’’ She did, however, end up allowing the interviews, after the Supreme Court ruled that Harvard could lose federal funding if the interviews were not allowed.

Kagan oversaw the most extensive overhaul of the law school curriculum in a century, a remarkable feat for someone who had served on the faculty for only a few years before becoming dean.

Every first-year student must now take courses on legislation and regulation in Congress and on international law, and a problem-solving workshop.

She also encouraged students to pursue public service careers and provide free legal services. The class of 2005, the first required to complete 40 hours of pro bono work to graduate, completed an average of 343 pro bono hours per student. When Kagan left Harvard, that number had grown to 542, Steiker said.

Not everyone at Harvard adored Kagan. Detlev Vagts, a professor who retired in 2005 and was a vocal opponent of Goldsmith’s appointment, said Kagan was “rather dismissive’’ of him when he met with her to convey his concerns. But others praise Kagan as a good listener and down to earth.

When Randall Kennedy’s wife was dying of melanoma in spring 2005, he received several notes and calls from her that offered extraordinary sympathy and support during what he calls a “very dark moment’’ in his life.

“I think just being likable is a very important force in human affairs,’’ said Kennedy, 55, a law clerk to the late Supreme Court Justice Thurgood Marshall several years before Kagan. “I’m not a judge, and I’ve never been on such a court, but I can’t help but think that with her people skills, she will be effective in advancing beliefs that she will have.’’

Correction: Because of a reporting error, an earlier version of this story misstated which party held up the 2001 nomination of Miguel Estrada to the federal appeals court. The nomination was delayed because of a filibuster by the Democrats. He gave up in 2003. Also, because of a graphic artist’s error, a graphic with the story incorrectly identified the law school Chief Justice John G. Roberts attended. He received his degree from Harvard Law School.

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