RENEE MONTAGNE, host:
This is MORNING EDITION from NPR News. Good morning. I'm Renee Montagne.
LIND WERTHEIMER, host:
And I'm Linda Wertheimer. As a Supreme Court clerk 25 years ago, Eleana Kagan was called Shorty by her boss. Today she has grown in stature. She's now the chief advocate for the United States before that court. The 49-year-old dynamo with the ready grin is the first woman to serve as the nation's solicitor general. NPR's legal affairs correspondent Nina Totenberg has this profile.
NINA TOTENBERG: Eleana Kagan, widely admired for her intellectual acumen and administrative ability as dean at Harvard, came to the job of solicitor general with one huge, gaping void: She had never argued a case in the Supreme Court or any other court, for that matter.
At her confirmation hearing, she told skeptical senators that she was not worried, because she had a lifetime of learning and study in the law � as a teacher, as a private practitioner, and as a lawyer in the Clinton White House.
But not all the senators were persuaded, as you'll hear in this exchange with Arizona Senator John Kyl.
Ms. ELEANA KAGAN (Solicitor General): Frankly, anybody has some gaps, you know?
Senator JOHN KYL (Republican, Arizona): Sure. I appreciate that. The greatest knowledgeable surgeon, though, still has to get those fingers working to do the right kind of sewing. And practice is what enables you to do that.
TOTENBERG: Kagan remained supremely confident, but when she stepped up to the lectern at the high court this past September to defend a century-old feature of campaign finance law, she admits she had the jitters.
Ms. KAGAN: I was nervous because it was my first one. But, you know, honestly, no more nervous than I've been at lots of other times in my life when I've done things for the first time.
TOTENBERG: And, she adds, once she'd begun�
Ms. KAGAN: It's a great deal of fun. It's challenging, and it's exciting.
TOTENBERG: The night before, she went to the movies to forget about the case. But, tellingly, she can't remember what she saw.
In private she knew she likely had a losing hand, given the predisposition of the court on a case, and was grim about it. She was anything but grim, though, when facing the justices. She bluntly told them that the court for over 100 years had never before questioned the ban on corporate spending for candidate elections.
Justice Antonin Scalia replied that the court may never have questioned the ban, but it had never approved it either. Congress, he suggested, is too self-interested to be trusted on the matter.
Justice ANTONIN SCALIA (U.S. Supreme Court): I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents.
Ms. General KAGAN: I think, Justice Scalia, it's wrong. In fact, corporate and union money go overwhelmingly to incumbents. This may be the single most self-denying thing that Congress has ever done.
TOTENBERG: Scalia likes that kind of pushback and he likes Kagan.
Justice SCALIA: That's what's supposed to happen, isn't it? The reason you ask the question is to see if there's a decent answer to it.
TOTENBERG: Not that Scalia is likely to be persuaded, at least on this issue. Kagan, so far, has argued three major cases before the court � and in all of them the betting odds are that the government will lose. Scalia, however, points out that she chose these cases to argue.
Justice SCALIA: She stepped into the line of fire. She volunteered.
TOTENBERG: As the first female to be solicitor general, Kagan was the subject of much speculation � about what she would wear. All solicitors general before her had worn a long morning coat with tails. She decided not to, mainly because she thought she wouldn't be comfortable. Not to mention that at less than five feet three inches tall, she would have looked a bit like a penguin in the long-tailed coat.
Kagan grew up in New York, where her mother was a teacher and her father a lawyer. She cites her education at Hunter, a public school for high achievers, as a formative experience because it was all girls in grades seven to 12.
Ms. KAGAN: This was a place where it was a very cool thing to be the smart girl, as opposed to some other, different kind. And I think that that made a great deal of difference to me growing up and in my life afterwards.
TOTENBERG: Kagan went on to be a star student at Harvard, supervising editor of the Law Review, then a law clerk for the man whose portrait she's hung over her mantel in her office - Supreme Court Justice Thurgood Marshall. After that, besides teaching and practicing law, she held important positions in the Clinton White House.
Mr. Clinton nominated her for a judgeship on the Federal Appeals Court here in Washington, but the Republican-controlled Senate never took up the nomination. In 1999, she returned to Harvard and subsequently became the law school dean. There she was hugely popular with students and won widespread praise for ending the ideological faculty wars that had gone on for decades.
Liberals and conservatives alike praised her to the skies. She shook up the faculty with new hires, including some eminent and controversial conservatives, and she defended them when they were under attack. Though a Democrat, she even won a standing ovation at the national convention of the conservative Federalist Society.
Ms. KAGAN: I sort of looked out at them and I said, You are not my people, and everyone laughed, and then I said, but I love the Federalist Society, and I think that that's when I got a standing ovation.
(Soundbite of laughter)
Ms. KAGAN: People - people, it turns out, love to be told that they're loved.
TOTENBERG: Now as the chief advocate for the United States in the Supreme Court, her job is to defend statutes enacted by Congress, regulations enacted by agencies, and the actions of the president, when challenged. As long as there's a plausible argument to be made, she says, it is her duty to make it even if she personally doesn't agree with the policy she's defending. The only exceptions would be if Congress has enacted a statute that tramples on the powers of the president. For instance, regulation of the pardon power.
There are, however, notable examples of solicitors general who have refused to sign a brief or argue a case because they thought the government's view unconscionable. In the 1950s, Solicitor General Simon Sobeloff, for instance, famously refused to defend the government's contention that the so-called loyalty board could fire public employees based on the statements of unidentified informants. The Supreme Court subsequently struck down the practice by a vote of eight to one. Solicitor General Kagan implies she would not stay on if she faced a similar dilemma.
Ms. KAGAN: I think that if there are positions that you can't argue, then the responsibility is probably to resign. If one's own conscience is opposed to the requirements and the responsibilities of the job, then it's time to leave the job.
TOTENBERG: But just what Elena Kagan's core beliefs are is something that seems to elude even those who know her well and have worked with her. Said one of her former colleagues at Harvard, an avowed fan: Elena is the single most competitive and most inscrutable person I have ever known. And while her elusiveness may be a plus in some ways, it's a definite negative to those on the left who are not comfortable with the notion of her serving on the Supreme Court, and have made that clear to the White House.
Says one of her defenders, the left is wrong about Elena. On most subjects, except for executive power and some business questions, she's a liberal. When I asked Kagan what her constitutional values are, she replied that right now she is solicitor general.
Ms. KAGAN: And what my constitutional values are are wholly irrelevant to the job, and so neither you nor anyone else will know what they are.
TOTENBERG: So do you consider yourself a liberal?
Ms. KAGAN: What my political views are, what my constitutional views are just doesn't matter.
TOTENBERG: As dean at Harvard, she cut off campus access for military recruiters because of the military's don't ask/don't tell policy and its discrimination against homosexuals. She's referred to the policy as quote, �a moral injustice of the first order.� But when I asked her about whether she could defend the policy, she demurred. Even far more general questions about regrets or proudest moments produce little from the cagey Kagan.
Sol. Gen. KAGAN: I have no regrets. I don't believe in looking back and regretting anything. And what I am proudest of? Working really, really hard, and achieving as much as I could.
TOTENBERG: Who is her model as a Supreme Court justice? Well, she didn't want to pick one and offend the other eight current Supreme Court justices. Okay, so how about someone not on the court now?
Ms. KAGAN: I think I'll pass anyway.
TOTENBERG: At the end of our interview, she laughingly asked if I was satisfied. Well, I replied, it would be better if you'd showed a little leg. Then I looked down and saw Kagan was wearing pants.
Nina Totenberg, NPR News, Washington.
RENEE MONTAGNE, host:
Elena Kagan talks about her first argument before the Supreme Court and working for Judge Thurgood Marshall on our Web site at npr.org.
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