Elena Kagan, A Nominee With Little Paper Trail President Obama nominated Solicitor General Elena Kagan to the Supreme Court to fill the seat vacated by Associate Justice John Paul Stevens. Kagan has never served as a judge, and left no significant paper trail, so many of her legal views remain a mystery.
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Elena Kagan, A Nominee With Little Paper Trail

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Elena Kagan, A Nominee With Little Paper Trail


Elena Kagan, A Nominee With Little Paper Trail

Elena Kagan, A Nominee With Little Paper Trail

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President Obama nominated Solicitor General Elena Kagan to the Supreme Court to fill the seat vacated by Associate Justice John Paul Stevens. Kagan has never served as a judge, and left no significant paper trail, so many of her legal views remain a mystery.


David Savage, Supreme Court reporter for the Los Angeles Times and Chicago Tribune
Abner Mikva, former judge, U.S. Court of Appeals for the District of Columbia Circuit
Edward Whelan, president, Ethics And Public Policy Center
Carol Steiker, law professor, Harvard University


This is TALK OF THE NATION. Im Neal Conan in Washington.

Earlier today, President Obama established much of the political agenda for the next few months and what could be one of the more important legacies of his presidency, in his nomination of Elena Kagan to the Supreme Court.

Kagan is currently solicitor general, a job sometimes described as the 10th justice. This is the person who argues the government's case before the Supreme Court, but she has never been a judge, and, until she got this job, a year and a bit ago, she'd never argued a case - ever.

Her credentials include Princeton, Harvard Law and Oxford, a constitutional law professor at the University of Chicago and Harvard, where she later served as dean of the law school. Before that, she served as policy aide in the Clinton White House.

So the bare bones of that resume aside, what do you want to know about Elena Kagan? Our phone numbers is 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our website. Thats at npr.org. Click on TALK OF THE NATION.

Later this hour, the wife of the would-be Times Square bomber on The Opinion Page this week. Asra Nomani tells us what she's learned about the bifurcated life of Huma Mian.

But first, Elena Kagan, the president's pick to succeed Supreme Court Justice John Paul Stevens, and we begin here in Studio 3A with David Savage, who covers the Supreme Court for the Los Angeles Times and Chicago Tribune. Always nice to have you with us, David.

Mr. DAVID SAVAGE (Supreme Court Reporter, Los Angeles Times, Chicago Tribune): Hi, Neal.

CONAN: And David, you've watched her argue before the justices. What's she like?

Mr. SAVAGE: Very calm. She can have a conversation with the justices, which is, like, the first thing you want to do as a Supreme Court advocate. She knows the law. She's articulate. She doesn't, as you say, have a lot of experience. She's not taken a lot of strong stands on issues. But anybody who's been around Elena Kagan would say this woman is very smart, very articulate and capable of being a good justice.

CONAN: As anybody who's ever listened to any of the tapes of the Supreme Court arguments knows, the justices interrupt all the time, throw challenging questions. How good is she at the banter?

Mr. SAVAGE: She's quite good. You know, her first argument, as you said, was her first case up in the Supreme Court. It was that big case involving Citizens United, and the justices did something I've never quite seen before.

She got out essentially two sentences. She said: Your Honors, I'd like to make three points. First, these laws regulating corporations have been long-standing. And Justice Scalia said wait a minute, wait a minute, stop right there.

(Soundbite of laughter)

Mr. SAVAGE: They gave her two sentence before they began interrupting her. So yes, she got a very quick introduction to what arguing in the Supreme Court is like.

CONAN: And ended up losing that case.

Mr. SAVAGE: I think she was going to lose five-four when she went into the argument. She handled it well, and she lost five to four on the way out.

CONAN: She has, compared with other justices that we've seen nominated in the past several years, very little paper trail.

Mr. SAVAGE: Yes, that could you could use that against her, or you could use that for her. I suspect one of the things that's very appealing for the Obama White House and for President Obama, here's somebody who we know he's known her since 1991. They were both on the faculty at the University of Chicago -somebody we trust, somebody we think is quite capable and agrees with us on all the big issues, but plus she has no paper trail, so it's pretty hard for the Republicans to oppose her.

CONAN: Well, except on one issue, and that is Don't Ask, Don't Tell.

Mr. SAVAGE: Yes, she was when she was at the Harvard Law School, many of the big law schools opposed the government's requirement, essentially, Congress' requirement, that military recruiters be given equal access to students.

The law schools' view was that we have a policy saying no recruiters from employers who discriminate based on race, gender, a number of things including sexual orientation.

Well, the Pentagon is such an employer. They do not hire open gays. So a lot of law schools said sorry, we're not going to allow military recruiters on campus because it conflicts with our policy.

They joined a lawsuit to challenge that, ended up losing in the Supreme Court. Elena Kagan was somebody who said she thought that the Don't Ask, Don't Tell policy was morally unjust.

As I say, she joined the lawsuit. She wasn't the leader of the lawsuit. She was one of many, but she ended up losing. So we'll hear more about that at the hearings.

CONAN: 800-989-8255, email us talk@npr.org. What do you want to know about the president's Supreme Court nominee, Elena Kagan? And we'll start with Patrick(ph), Patrick with us from East Lansing in Michigan.

PATRICK (Caller): Hi, I was calling to comment on Elena Kagan's views on presidential power, and I wonder if the guest could comment on whether she's going to change the balance on these crucial questions about whether the president has the power to conduct surveillance and to engage in torture and to declare detainees in Guantanamo to be beyond the reach of the federal court's jurisdiction, because on these questions and others, it seems to me that she's going to be the fifth vote to change precedent in a very bad way.

CONAN: Well, she said, David Savage: I am not a unitarian. But she wasn't talking about religion.

Mr. SAVAGE: Let me see. I think the answer to that is we don't know. That is one area that has been of concern to a number of people on the liberal side. John Stevens was the leader of the court's wing of saying there need to be limits on presidential power. He wrote most of the big cases in the Guantanamo era.

Elena Kagan has written several law review articles arguing for the importance of presidential power on the domestic front. And when she went up for her hearings, Lindsey Graham asked her a bunch of questions about how we're at war, and essentially all the world is a battlefield, and if you pick up anybody in the world, you can hold them as an enemy combatant without a trial.

CONAN: Lindsey Graham the Republican from South Carolina, member of the Judiciary Committee.

Mr. SAVAGE: Correct. And she basically nodded and said yes, senator, I think you've stated the law correctly. She seemed to agree.

Now, that's a pretty thin read to but since Kagan has virtually no record on this, I think it is sort of an open question, is what is her view of the limits of presidential power, particularly in this sort of war-on-terrorism era.

CONAN: And another thing thanks very much for the call, Patrick.

PATRICK: Thank you.

CONAN: Another thing we're going to be hearing about is the so-called Kagan standard. She has commented that the nomination process can be awfully bland since the nominees rarely say anything of interest or go out on a limb to say anything that might jeopardize their nomination.

Mr. SAVAGE: Yes, and as a young law professor, she went out on a limb by castigating the senators for not asking the nominees hard questions, for saying they ought to demand the nominees talk about, not only a broad judicial philosophy, but their particular views on constitutional issues like abortion, affirmative action.

She said the hearings have been an embarrassment. They've been a hollow charade. And now she's going to have to go up there and, I assume, say: Well, contrary to what I said 15 years ago, I don't actually believe that anymore.

CONAN: In 1986 and 1987, Elena Kagan, then a new graduate of Harvard Law School, moved to Washington to clerk for Judge Abner Mikva on the U.S. Court of Appeals for the D.C. Circuit. In her remarks at the White House today, Kagan acknowledged his influence on her career. Mikva, she said, represents the best in public service. The retired judge joins us now from his home in Chicago, and Judge Mikva, thanks very much for your time today.

Former Judge ABNER MIKVA (U.S. Court of Appeals for the District of Columbia Circuit): Thank you. I'm glad to be here.

CONAN: What do you remember of Elena Kagan then, as a presumably bright-eyed law graduate?

Former Judge MIKVA: Well, she was one of the best and brightest then, and she kept going. She when she finished her clerkship with me, she went on to clerk for Justice Thurgood Marshall, who raved about her to me when I would see him. And after that, she went back to the University of Chicago to teach, where the students and her colleagues and the faculty, both right, left and center, raved about her as a good colleague and a great teacher.

She then came to work for me as an assistant White House counsel when I was White House counsel, and she's grown by then. She was she even knew more about the law, and I don't want to predict her views on the executive branch, but I do know she understands the doctrine of the separation of powers, and I don't think she believes that the executive is all-powerful and can trump the other branches or trump the Constitution.

So I'm quite comfortable with how she's going to come out on some of these tough cases.

CONAN: And she, as we've noted, has little record because, well, she's never been a judge. She wasn't required to write opinions.

Former Judge MIKVA: I consider that a plus. I clerked on the Supreme Court when I got out of law school, and several of the best members had not been judges before - Hugo Black for one, Robert Jackson for another, William O. Douglas for a third.

It's all right to have some judges on the Supreme Court, but when you have all nine, as we've had most recently, it tends to be a narrowing of the views. Judges, intermediate court judges like they were all were, talk to each other, and they talk to lawyers. And outside of that, their contacts are limited, so that I consider the absence of judicial experience in many ways a plus.

There ought to be at least one justice, if not more, who understand how real people talk, how the legislative branch makes legislation, how people outside the Beltway talk to each other and how people talk about things other than ancient legal doctrines.

CONAN: Was there something that she did when she clerked for you that made you sit up and say oh my, my, this young woman might have a real future in front of her?

Former Judge MIKVA: Well, in addition to her being bright and knowing the law, I liked the way she was thoughtful about her answers. She didn't sometimes when people are smart about the law, they're waving their hand in your face and ready to give you the answer before you finish the question.

That was not Elena. She thought about what she was going to say, and she marshaled her thoughts, and the answers usually reflected that. And she did that in the White House, as well, where she brought even greater knowledge and greater judgment to some of the hard problems we had there. And I think she's done that as solicitor general.

There's a tendency for lawyers, when they get into a hot argument with a judge, to start arguing with the judge, and that's a mistake. Elena understands that sometimes the judges are arguing with each other when they start peppering you with opposite questions and don't give you a chance to answer them, but that's part of the way these decisions are made.

Just as you can't always be happy with the laws are being made, you can't be happy with the way Supreme Court decisions are being made, but we hope they come out right.

CONAN: And from what you know of her, what part of the law interests her the most?

Former Judge MIKVA: She's you know, she taught constitutional law, and she loves the Constitution and marvels, as most of us do, at how well our founders anticipated, not the specific problems or the specific developments of the 21st century, but anticipated the problems of governance and why the three branches interact with each other.

They're not three separate boats sailing around in a sea, but have a constructive tension between them so that the executive branch isn't always right, and sometimes the legislative branch does have to be held in check.

But these are awesome powers that the third branch of government should not take on lightly, and she understands that.

CONAN: Judge Mikva, thanks very much for your time. We appreciate it.

Former Judge MIKVA: Thank you.

CONAN: Abner Mikva served as a congressman, White House counsel and, for 15 years, as a judge on the U.S. Court of Appeals for the D.C. Circuit. From 1986 until 1987, Elena Kagan, the president's nominee for the Supreme Court, was his clerk, and he joined us today from his home in Chicago.

This morning, we're going to be talking about the nomination of the president of Elena Kagan. We're going to be talking, as we just did, with some of her former colleagues and students. Up next, a Kagan critic. More of your calls, as well, 800-989-8255. Email us, talk@npr.org. What do you want to know about Elena Kagan? Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. Im Neal Conan in Washington.

As of today, Elena Kagan is widely expected to become the 112th Supreme Court Justice. President Obama announced her nomination this morning, the second high court pick of his presidency. The White House hopes the Senate will confirm Kagan in time for her to join the court when it sits at the first Monday in October.

We know the broad outlines of Kagan's resume, but she's never been a judge, left very little paper trail; so we don't know much about her views, her presence on the bench or how she may serve.

To give us an idea of who she is and what she stands for, we're talking today with a number of people who have worked with her, or hired her, or watched her work. And we're taking your calls, 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our website. Thats at npr.org. And click on TALK OF THE NATION.

David Savage covers the Supreme Court for the Los Angeles Times and Chicago Tribune. He's with us here in Studio 3A. And here's an email question from Sara(ph) in Minneapolis: Do we have any hints about Elena Kagan's stance on abortion, gay marriage or any of the other classic hot-button issues?

Mr. SAVAGE: No, not really. I would bet a small amount of my own money that on most of the big issues, she would be on the left side of the divide. It's hard to think that President Obama and his lawyers would pick somebody who was, for example, thought Roe versus Wade should be overturned or was opposed to affirmative action.

But I think the answer is that Elena Kagan has not written on those questions, and so we don't really know. Gay marriage is going to be down the road some way. We're going to learn what all of them think. But the justices have not said almost anything on that subject yet.

CONAN: Let's see if we can get another caller in on the conversation, and let's go next to Henry(ph), Henry with us from Margate in Florida.

HENRY (Caller): Yes, thank you for taking my call, Neal.

CONAN: Sure, go ahead.

HENRY: My question is, how would Republicans react if she says she would treat stare decisis with the same deference as Alito and Roberts? I mean, in my opinion, they can't very well object to her saying that, being that Alito and Roberts have not shown any deference to stare decisis. So can they fault her for saying she would treat it with the same deference as those two?

CONAN: Both of those Republican nominees said in their hearings that they gave great respect to stare decisis, the principle that you should observe the previous rulings of the court, unless there's a very good reason not to. David?

Mr. SAVAGE: Unfortunately, all the nominees say something like I believe strongly in stare decisis except when I don't. And that is, most of the time you would stick with the precedent, stick with the past decision, but they all say, but there's a few examples where I'd go the other way.

And as you say, that was a big part of the Roberts and Alito hearings. The Democrats kept asking them about stare decisis. They said they believed in it, they respected it, but... And of course, as you know, there have been several buts. They were willing to strike down a lot of the campaign finance laws as free speech violations.

I assume Elena Kagan will say something similar, that I respect and believe in stare decisis. There may be some times where the law, like in Brown versus Board of Education, where the law needs to change.

CONAN: Critics of Elena Kagan argue that she has little judicial experience and that she's out of touch, especially when she criticized Don't Ask, Don't Tell and the Solomon Amendment when she was dean of Harvard Law School.

Edward Whelan counts himself among the Kagan critics, saying he has, quote, "plenty of respect for her intellect and ability, but she deserves considerable credit for her dean as her tenure as dean of Harvard Law School, including for her generous treatment of conservatives, but..." And we'll pick up with that in just a moment.

Whelan is a former attorney for the Office of Legal Counsel at the Justice Department, now president of the Ethics And Public Policy Center, contributor to the National Review Online, and he joins us by phone from his office in Washington. Ed Whelan, nice to have you with us today.

Mr. EDWARD WHELAN (Former Attorney, Office of Legal Counsel, Justice Department; President, Ethics And Public Policy Center): Thank you for having me.

CONAN: And why don't you pick up that sentence: but...

Mr. WHELAN: Well, first of all, I'd emphasize that Elena Kagan may well have less experience than any entering justice in decades. Not only does she have no judicial experience, which I think is the best training ground for the Supreme Court, but she also has only a few years of real-world legal experience. And even in academia, where she spent the bulk of her career, she has a scant record of legal scholarship that a number of folks on the left have been criticizing recently.

What's striking is the real mismatch between President Obama's populist rhetoric and the reality of the Kagan pick. For whatever one could criticize the so-called judicial monastery, and I don't really think those criticisms are warranted, Elena Kagan comes from a much more isolated, insular career in academia, and it really doesn't seem to fit with President Obama's focus on concern for the real lives and experiences of Americans.

CONAN: As his previous nominee, Sonia Sotomayor, served as a prosecutor, for example, might have qualified on those grounds.

Mr. WHELAN: Sonia Sotomayor had a markedly different record. In many ways, you know, whatever one thought of how she had conducted herself as a judge, she had this long judicial recorded that was preceded by both some time in private practice and by her time as a prosecutor. So again, very comparable, I think, to Justice Alito.

CONAN: Just Elena Kagan had some experience with the powerhouse law firm here in Washington, D.C., Williams & Connelly, but as you suggest, most of her career has been in academia - though as mentioned, by among others you - she was very got very good grades in her tenure as dean of Harvard law.

Mr. WHELAN: That's right. She has received and, so far as I can tell, deserved acclaim for the way she managed that institution. It's not clear whether the skills manifested there transfer, particularly, to the skills of a justice. So I don't really see that as I mean, it's impressive that she did well. I don't mean to suggest otherwise, but I'm not quite sure how that prepares her for the Supreme Court.

CONAN: Well, President Obama, in announcing her nomination today, said today that that experience suggests that she might be a consensus-builder, somebody who can bring others along.

Mr. WHELAN: Well, that seems to adopt a very politicized view of the court, which unfortunately may have some merit, but I would hope that, you know, reason would sway more, and also, of course, it may be the case that with Harvard Law School being the incredibly well-endowed institution that it is that she had a lot more carrots to distribute to get people to stay happy than she'll have as the most-junior justice on the court.

CONAN: Well, she did mention that her best investment was free coffee for the students, and that was pretty cheap at the price, so...

Mr. WHELAN: Some people can be bought very easily.

CONAN: Let's get another caller in on the conversation. Mike(ph) is calling from New Orleans.

MIKE (Caller): Hi, thanks for having me. I have to agree with your guest. You know, this woman and I am a common, everyday plebian that your previous judge spoke of. I'm not an attorney, but I want my Supreme Court Justices to have a modicum - a modicum of courtroom experience.

And it would be great if they had served as a judge somewhere along the line. Serving as a judge, and I can only imagine, but it helps broaden your horizons. It gets you out of the classroom and into the real, pragmatic world of everyday law, and she just doesn't have that.

And it seems to me she's just, you know, another left-of-center pick by the president, who says he represents all people, but he seems to be governing from the far left every day, and does not consider America is a right-of-center country, just without any consideration at all. Okay, now, I'm going to hang up. I'm going to listen. Thank you.

CONAN: Ed Whelan, would you agree that she is the president has made a pick from the far left?

Mr. WHELAN: Well, I think, you know, clearly Elena Kagan is ideologically left. How aggressive she'll be in pursuing her own agenda is something that we hope to try to get clues to during this confirmation process.

The caller's comment reminds me that, you know, Elena Kagan had, you know, zero courtroom experience at all when she was nominated as solicitor general, had never argued a single case anywhere, and has since, you know, I think had the opportunity to argue I believe six Supreme Court cases.

But she really has a dearth of relevant experience, and it's you know, it's striking, especially when you look at, you know, the recent pattern on both sides of the aisle.

I mean, you can you know, one can criticize from any perspective, say, Justices Sotomayor, Ginsburg, Breyer, Alito, Roberts, but all had, you know, extensive, real-world legal experience, including previous judicial experience, and obviously, the same can be said going back further, for Thomas, Scalia and I'm sorry Kennedy.

CONAN: Okay. Abner Mikva was talking about the legacy of others who were not judges on the Supreme Court before. But one quick question, some on the right have said that her opinion on don't ask, don't tell is evidence of a hostility towards the military. Do you think that's justified?

Mr. WHELAN: Well, whether or not she bears a subjective animus towards the military and I'm not going to allege that she does is different from the question of whether she was elevating her own ideological position against Dont Ask, Dont Tell, you know, above the law. And you know what, that says more generally about her ability to separate her policy preferences from her legal positions.

CONAN: Okay. Ed Whelan, thanks very much for your time today.

Mr. WHELAN: Thank you.

CONAN: Edward Whelan, president of Ethics and Public Policy Center and director of the Constitution, the Courts and the Cultural Project at the Ethics and Public Policy Center. And he joined us today by phone from his office in Washington.

Another - Carol Steiker has known Elena Kagan for years. They were classmates at Harvard, where Steiker was the second woman president of the Harvard Law Review. Kagan was also on that editorial board. They clerked for Supreme Court Justice Thurgood Marshall at the same. They were colleagues in Cambridge when Kagan returned to Harvard as a professor, later dean of the law school. Carol Steiker was at the White House this morning for the president's announcement, and is now kind enough to join us by phone from here in Washington. Nice to have you with us today.

Professor CAROL STEIKER (Law, Harvard University): Thank you. It's great to be with you.

CONAN: And I would assume you would take issue with what Ed Whelan was just talking about.

Prof. STEIKER: Yes, absolutely. I mean, the idea that Elena Kagan is a pick from the far left is absurd, given that I think it was widely perceived that she was a very centrist pick. That, you know, some people were saying there should be a pick further to the right. Others were saying there should be a pick further to the left. It's pretty clear that this was not considered a wildly leftist appointment.

And it's also quite clear that Elena has no antipathy to the military and is not pursuing any individual agenda. In fact, I think that Elena Kagan's policy about Don't Ask, Don't Tell had to do with the idea that all of our students who wanted to serve in the military should have the opportunity to do that. And I think the attitude of - the veterans at the law school is the thing that speaks the most toward how her attitude toward the military was perceived by students.

She was greatly honored and revered by the veterans at the law school. She inaugurated a Veterans Day dinner for the veterans who were students at the law school. And when she spoke at West Point, she was greeted with incredible acclaim. And the cadet's hat that she was given at West Point is the one thing that adorns her otherwise very unadorned dean's office at the law school. So the idea that somehow her position on Don't Ask, Dont Tell, which sought to open the military experience to every Harvard law student who wanted to serve -the idea that that's an antimilitary stance, I think, is patently unfair.

CONAN: We're talking with Carol Steiker, a colleague and a former student and former clerk together with Elena Kagan, the president's nominee for the Supreme Court. You're listening to TALK OF THE NATION from NPR News.

And what was Elena like as a young woman?

Prof. STEIKER: She was much the way she is today. She was passionate, passionately engaged in the law and simply a brilliant student and a brilliant young lawyer. I was very lucky to have her as a classmate and co-clerk. I often relied on her in both of those contexts.

CONAN: Let's get another caller in. This Troy(ph), Troy with us from Iowa City.

TROY (Caller): Yes. Wasnt she rebuked by the Supreme Court for her brief that she did to the Supreme Court?

CONAN: On this Don't Ask, Don't Tell question and the Solomon Amendment, is that what you're talking about, Troy?

TROY: I'm not sure. But I'm pretty sure that the Supreme Court said, hey, you dont know what you're talking about. Your brief is terrible. This was done like a first year law student or something like that.

CONAN: Anything that strikes you on that, Carol Steiker?

Prof. STEIKER: Yes. Well, actually, the brief was not written by Elena Kagan. It was written by...

TROY: Put her name on it though, didnt she?

Prof. STEIKER: And my name and the name of 40 others.

TROY: It was her - she writes or she puts her name on it...

CONAN: Troy, Troy, Troy, you have to give her a chance to answer the question.

TROY: That's fine.

CONAN: Go ahead, please.

Prof. STEIKER: Fifty-some out of the 81 professors on my faculty joined in our first brief, and 40 of 81 in the second brief. The brief was authored by Walter Dellinger, former solicitor general of the United States and a veteran Supreme Court lawyer. He drafted the briefs on our behalf. It's true that the case does not succeed in the Supreme Court, but that cannot possibly be the test of whether the case is arguable.

TROY: So...

Prof. STEIKER: I think what Elena did - what all of us thought is that the school's nondiscrimination policy, which was of long standing that said we would not permit discrimination against our students on the basis of race, gender, sexual orientation or a number of other categories, the idea that that was a very important tenet of the law school, that the law school wanted to defend and test in court to see if Congress really meant to require us to give up our nondiscrimination policy.

CONAN: And the ruling was eight to nothing against?

Prof. STEIKER: Correct, it was.

CONAN: All right.

TROY: So, I guess, she was - the opinion that you guys took was drastically wrong and they said, you guys dont know how to write a briefing.

CONAN: I'm not sure...

TROY: Is that what you're trying to say?

CONAN: No. I'm not sure that's the conclusion you can reach from even a decision that is 8-0, unanimous in the opposition.

TROY: The brief was is, hey, you guys dont know what's going on.

CONAN: Now...

TROY: It rebuked you guys.

Prof. STEIKER: I dont - I'm not sure that a loss is a rebuke. You know, there's only two ways that judges can vote - the justices can vote. They can affirm or they can reverse. And sometimes the thing - the case could be very arguable.

And I think that the law school felt - Justice Elena Kagan, as solicitor general, can't be charged with every position that she takes on behalf of the United States, it is her job to represent the United States in court, many of us felt as law professors, that it was our job to defend a policy of our school, that the school had adopted as central to the mission of the school, nondiscrimination in the employment of our students.

CONAN: David Savage, you covered that case for the Los Angeles Times and the Chicago Tribune. Was that a rebuke?

Mr. SAVAGE: No. I wouldnt call it a rebuke. It was a loss but, you know, they won in the lower court. The U.S. Court of Appeals in Philadelphia...

Prof. STEIKER: The third circuit, yeah.

Mr. SAVAGE: ...ruled in favor of the claim. A few years before, the Supreme Court in a case involving the Boy Scouts said that Boy Scouts can't be required to take openly gay scoutmasters, a 5-4 vote, because it would sort of change their message. It would force them to change the basic message about who they are. The law schools were saying the same thing.

If we allow recruiters to come on us campus and discriminate against gays, you're forcing us to sort of go back on something fundamentally we believe. That's what they argued. They won in the lower court. They lost in the Supreme Court. So I would say the Supreme Court disagreed with them, but I didn't see anything in that decision or opinion that I would call a rebuke. And as we've said, it wasn't really Elena Kagan's case.

CONAN: Right. David Savage, thank you, as always. David Savage covers the court for The Los Angeles Times and the Chicago Tribune. And Carol Steiker, thank you for your time today too.

Prof. STEIKER: Thank you.

CONAN: Carol Steiker is Howard J. and Katherine W. Aibel Professor of Law at Harvard University, telling us about her former co-student and co-clerk and friend and colleague, Elena Kagan, who's been nominated today to the Supreme Court. And, obviously, we'll be picking up on this as the hearings go before the Judiciary Committee later this summer and then the vote before the United States Senate.

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