Washington – Supreme Court nominee Elena Kagan has never tried a case to verdict before a jury, and she has never sat as a judge in a live trial.
But according to a group of law school deans, her experience heading the Harvard Law School from 2003 to 2009 has helped prepare her to decide some of the country’s toughest issues as a justice on the nation’s highest court.
On Tuesday, the White House made public a letter of endorsement signed by 68 deans at major American law schools.
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The letter to Senator Patrick Leahy is part of an elaborate dance underway in Washington in anticipation of Kagan’s June 28 confirmation hearings in the Senate Judiciary Committee.
“Elena Kagan excels along all relevant dimensions desired in a Supreme Court justice,” the deans wrote. “Her knowledge of the law and skills in legal analysis are first-rate. Her writings in constitutional and administrative law are highly respected and widely cited.”
The letter added: “She is an incisive and astute analyst of law, with a deep understanding of both doctrine and policy.”
The problem with such pronouncements is that they are just pronouncements. If Kagan is to be confirmed by the Senate it will not happen based the endorsement of friends and law school colleagues.
In her testimony and conversations with Senators she must clearly demonstrate her knowledge of the law, her skill as an analyst, and her understanding of doctrine and policy. That will be the substance and challenge of the hearings in late June.
But the observations of the law deans are useful in another way. They help suggest what kind of justice Kagan might become, if confirmed.
Among key traits ascribed to Kagan are her willingness to listen to diverse viewpoints and an aptitude for forging coalitions among those with strong and opposing opinions.
Having run a large nonprofit organization, Kagan knows the challenges of hiring and firing, of policy making, and of the diplomacy sometimes necessary to navigate the egos and agendas that animate a major law school.
Martha Minow, who took over as dean at Harvard after Kagan left to become solicitor general, told reporters in a conference call that the job can sometimes be like “herding cats.”
Evan Caminker, dean of the University of Michigan Law School, said the Supreme Court would benefit from having a justice like Kagan with managerial experience, budget-making experience, and someone who knows how laws and rules can impact individuals at the grassroots level.
Kagan is credited with improving ideological diversity at Harvard by recruiting prominent conservatives for posts in a faculty long dominated by liberals. Former students and colleagues say she went out of her way to reach out to students and faculty members. She became a confidant to many of them, they say.
But her most significant qualifications relate to the law, they said.
“She is an awfully good and careful lawyer,” Minow said.
The current Harvard Law dean said she felt Kagan’s lack of judicial experience was a plus. “I am of the view that it is not healthy to have a court composed entirely of people who spent a large part of their lives in the appellate world,” she said.
Minow also said efforts to paint Kagan as either too liberal or too conservative were misguided. “I think it is bunk to suggest she actually is either too far left or too far right,” Minow said. “She is a careful, thoughtful person who does not have prior ideological commitments that take her out of the mainstream.”