Past fund-raising puts Kagan at risk of conflict

Harvard donors may well come before high court

Elena Kagan’s prolific fund-raising sets her apart from the current Supreme Court justices. The nominee testified last week before the Senate Judiciary Committee on Capitol Hill. Elena Kagan’s prolific fund-raising sets her apart from the current Supreme Court justices. The nominee testified last week before the Senate Judiciary Committee on Capitol Hill. (Alex Brandon/Associated Press)
By Sharon Theimer
Associated Press / July 8, 2010

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WASHINGTON — One talent Supreme Court nominee Elena Kagan displayed in her career climb could create unique ethics questions for her as a justice: the ability to persuade Harvard Law School alumni and other wealthy donors to give hundreds of millions of dollars, which helped surpass a daunting fund-raising goal that came with her job as dean.

The $476 million total Kagan helped reach for the Setting the Standard campaign was a record not just for her university but for all law schools. Harvard Law sought $400 million to add professors, buildings, programs, and financial aid, and whether Kagan could pull it off would help determine her success as dean. She exceeded the goal, raising roughly $306 million from 2003-08, after her predecessor had pulled in $170 million.

Kagan’s prolific fund-raising sets her apart from the current Supreme Court justices. To raise that kind of money, Kagan drew on interpersonal skills honed in the highly competitive environments of the Clinton White House and law school faculties.

She did it by reaching out to lawyers, corporate executives, and others from the law school and broader legal and business communities. “She raised the money basically purely on her personality,’’ said Harvard Law graduate David Mandelbaum, a trustee of real estate giant Vornado Realty Trust and part owner of the Minnesota Vikings football team. He declined to reveal how much he gave.

“She has a very pleasant way about her and basically indicated to us that we benefited from the Harvard Law School education and those of us who could should be able to pay back and give a future generation the kind of education we had,’’ he said.

Fund-raising is one of the key measures by which law school deans are judged, said Stephen Gillers, a New York University Law School professor and legal ethics specialist.

“It’s a salesman’s job. You’re selling a product and the school is a product,’’ Gillers said. “There are two things that make people contribute: Nostalgia as a graduate and a feeling of obligation . . . and the second thing you’re selling is the work the school is doing. You want to persuade the donor, who may not be an alum at all, . . . that this school is doing important work in an area of interest to the donor.’’

If Kagan is confirmed to the court as expected, it is possible she will encounter Harvard donors again, this time arguing as lawyers, plaintiffs, or defendants.

For example, alumni listed by Harvard as active in the fund-raising campaign include Sumner Redstone, chairman of the board of CBS Corp. and Viacom. Redstone and his family are controlling shareholders in both companies. Viacom is pursuing a $1 billion copyright infringement lawsuit against YouTube and Google in federal court. A judge last month ruled against Viacom, owner of cable channels such as MTV, Comedy Central, and Nickelodeon. Viacom plans to appeal.

If attorneys or law firms who donated represent clients before the court, it probably would not be considered a close enough link to force Kagan to recuse herself — even if the giving helped her succeed as dean, which in turn made her a more attractive candidate for the court, said Arthur Hellman, a University of Pittsburgh law school professor and specialist in federal courts and judicial ethics.

If a person who gave at Kagan’s behest ended up a party in a Supreme Court case, “that’s a closer question,’’ Hellman added.

New York University’s Gillers agreed. “You need two things. You need a contribution so large that we could say that Dean Kagan would feel a sense of great personal gratitude, and then you need a case in which the donor had a significant personal or business interest before the court,’’ Gillers said.

Asked by the Senate Judiciary Committee to list potential conflicts of interest, Kagan did not mention her Harvard fund-raising, and senators did not ask her about it during two days of questioning at her confirmation hearing last week.

“The principal conflicts of interest that I would encounter arise from my service as solicitor general,’’ Kagan wrote on her Senate questionnaire, adding that the only others she was aware of would involve Harvard litigation.

It is up to justices to decide whether to recuse themselves.

Harvard Law graduate Jack S. Levin is a Kirkland & Ellis partner in Chicago who helped arrange his firm’s $3 million donation. Levin said he has a high regard for Kagan but does not consider their connection something that would give him an advantage before the court: “People like Elena Kagan deal with hundreds and hundreds of people and once that’s over, they don’t owe them any allegiance.’’