Kagan’s meteoric rise marked by confidence, consensus-building

Acquaintances say nominee helped heal rifts

By Katharine Q. Seelye and Lisa W. Foderaro
New York Times / May 11, 2010

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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, ambitious (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 served as 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 dean of Harvard Law School, where she reached out to conservatives (once holding 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 that has led her to the spot she occupies today: the first female solicitor general of the United States and now, at 50, President Obama’s nominee for the Supreme Court.

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

Kagan’s paper trail is scant, her academic writings painstakingly nonideological. Yet as a young writer for The Princetonian, the student paper at Princeton, Kagan offered clear insight into her worldview then. 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 Holtzman lost to “an ultraconservative machine politician’’ named Alfonse D’Amato.

“Where I grew up — on Manhattan’s Upper West Side — nobody ever admitted to voting for Republicans,’’ 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 Kagan wrote so openly of her own political beliefs.

Kagan, the middle of three children, grew up in a family that embraced education and the notion of giving back to your community. Her mother, Gloria, who died two years ago, taught at Hunter College Elementary School. Kagan, however, hewed more to her father’s path.

Robert Kagan, who died in 1994, represented tenant associations whose apartments were being converted to co-ops. A graduate of Yale Law, he was also immersed in the politics and culture of the West Side.

“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,’’ said Bill J. Lubic, Robert Kagan’s law partner of 20 years.

The young Kagan was independent and strong-willed. Lubic recalls her bat mitzvah in a conservative synagogue, where Elena clashed with the rabbi.

“She had strong opinions about what [it] should be like, which didn’t parallel the wishes of the rabbi,’’ he said. “But they finally worked it out.’’

Kagan emerged as a leader at Hunter College High School. She became president of the student government and was appointed to serve on a faculty committee.

In her senior yearbook, Kagan is pictured on the student government’s page wearing a judge’s robe, gavel in hand. Underneath is a quotation from Justice Frankfurter: “Government is itself an art, one of the subtlest of arts.’’

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, and Bruce Reed, who would hire her as his deputy when he ran the White House Domestic Policy Council under President Clinton.

She graduated summa cum laude and received a fellowship to Worcester College, Oxford, where she obtained a master’s in philosophy.

Upon returning to the United States, 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 Kagan’s who today covers legal issues for The New Yorker and CNN, recalls that Kagan had an uncanny ability to handle the philosophical disputes.

“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 Marshall, where she impressed the male clerks by joining their pickup basketball games in the court’s top-floor gym, the “highest court in the land.’’

In 1988, as she was wrapping up her clerkship, it was time for 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 Kagan never seemed motivated by money.

In 1991, 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.

Geoff Stone, the former dean who hired her, said 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.’’

She was granted tenure in 1995, despite the reservations of some colleagues who thought she had not published enough. Shortly thereafter, Washington beckoned. Mikva was Clinton’s White House counsel. Remembering Kagan as a very bright law clerk, he wanted her to be one of his associates.

In December 1996, after she quit that government post and planned her return to Chicago, she was asked by Reed, her old friend from Princeton and now Clinton’s director of domestic policy, to serve as his top deputy.

In Washington, Kagan became the administration’s lead negotiator on a far-reaching tobacco bill that was to include FDA regulatory authority. She was assigned to work with the Republican author of the legislation, John McCain of Arizona. The talks were on-again, off-again, with Kagan eventually winning the support not only of McCain, but of another Republican, Bill Frist of Tennessee.

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 Clinton was facing impeachment and bipartisanship was in exceedingly short supply.

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

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 Obama’s top economics adviser) named her dean.

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