Kagan's Years At Harvard Scrutinized

With no judicial record to study, many are looking to Harvard Law School for clues about Supreme Court nominee Elena Kagan, who was dean there for five years. Kagan is remembered for having built broad coalitions among faculty for an aggressive hiring spree, and for her efforts to recruit more conservatives to the traditionally liberal campus. She is also known for her passionate stand against the military's ban on gays serving openly.

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From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.

ROBERT SIEGEL, host:

And I'm Robert Siegel.

Supreme Court nominee Elena Kagan has no judicial record and she left a sparse paper trail for critics and advocates alike to study.

So, NPR's Tovia Smith went digging for clues about her philosophy at Harvard Law School, where she was dean for five years.

TOVIA SMITH: If you thought you might be able to look at Harvard and tell a lot about Elena Kagan by who her friends are, think again. Fans of the former dean pretty much cover the entire political spectrum.

Professor ROBERT CLARK (Former Dean, Harvard Law School): I believe she will be a fantastic justice of the Supreme Court.

SMITH: That's law Professor Robert Clark, a conservative who was dean before Kagan. Clark says Kagan won a lot of friends on the right when she went on a hiring spree and deliberately sought conservative faculty for the traditionally liberal campus. And he says her ability to unite warring factions of the faculty to approve her hires was perhaps her most notable achievement.

Prof. CLARK: She has the sense of who wants what and what arguments would most appeal to them. You know, there are some elements of persuasion, some elements of you do this and maybe in the future I'll do that, and some elements of just - come on, we've got to all act as a team to get things done.

SMITH: But Kagan's commitment to political diversity left some liberals on campus complaining it came at the expense of diversity in race and gender. She hired barely any minorities and relatively few women, making it all the more difficult for some on the left to swallow some of Kagan's most conservative picks, like former Bush administration lawyer Jack Goldsmith, who many saw as too close to Bush administration policies on the war on terror.

Professor DETLEV VAGTS (Harvard Law School): That really went too far for me and other international lawyers.

SMITH: Harvard Professor Detlev Vagts is not, as he says, a Kagan fan. He says there are just too many questions for comfort.

Prof. VAGTS: I think down the road, some people could be quite disappointed standing on the left side.

Professor CAROL STEIKER (Harvard Law School): I don't see that because everything we know about her past suggests a solid liberal.

SMITH: Harvard Law Professor Carol Steiker was Kagan's classmate in law school and co-clerk under Justice Thurgood Marshall. She says Kagan showed her true colors when she enforced a ban on military recruitment on campus. Kagan called the military's Don't Ask, Don't Tell policy - barring gays from serving openly - a moral injustice of the first order.

Prof. STEIKER: No mincing of words. No careful walking around. This is the recognition that injustice is injustice, and she calls it by its name. And people who know her feel confident in her commitment to things that liberal Democrats hold dear.

SMITH: Still, Kagan has drawn fire from the left and right for going too far and not far enough. Harvard Law Professor Charles Fried, who was solicitor general in the Reagan administration, says both sides are reading too much into it. He says Kagan was only doing what she had to: first, enforcing a policy that was already in place, then lifting the ban on military recruiting when Harvard was faced with losing its federal funding and law schools were losing a challenge in court.

Professor CHARLES FRIED (Harvard Law School): These were all, as they say in chess, forced moves. She had no discretion.

SMITH: It is perhaps par for the course that even on personal demeanor, Kagan is something of an enigma. She's remembered at Harvard for being determined, tough, and even prone to angry outbursts. But she's also known for the soft side she showed students - redecorating their buildings, setting up tables for noshes and giving away free coffee.

Again, Professor Detlev Vagts.

Prof. VAGTS: She's like the stereotypical Jewish mother. She does a great deal to keep students comfortable and happy, and it's a very warm relationship.

SMITH: Indeed, as dean in charge of running Harvard Law School, Kagan had lots of ways to win favor and build coalitions. But many faculty point out that's different than actually building consensus by changing minds.

Tovia Smith, NPR News.

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