Kagan Picked for D.C. Post

Harvard Law School Dean Elena Kagan will be nominated to serve as President-elect Barack Obama’s solicitor general, the administration’s representative to the Supreme Court, Obama announced in a press release Monday morning.

If confirmed by the Senate, Kagan will represent the federal government, party to about two-thirds of cases brought before the high court, and play an integral role in guiding the administration’s interaction with the Supreme Court, working under Obama’s nominee for attorney general, Eric J. Holder.

“I am honored and grateful, awestruck and excited, to be asked to contribute to this most important endeavor,” Kagan wrote in an e-mail to the Law School community.

Kagan said that she viewed the post as an opportunity to “help advance this nation’s commitment to the rule of law at what I think is a critical time in our history.”

Kagan announced that she plans to take a leave of absence from the faculty of the Law School and resign the deanship, which she has held since 2003. During her tenure as dean, she has drawn acclaim for bridging ideological divides among the faculty, poaching several renowned professors from rival law schools, and ushering in a slew of student-oriented reforms.

University President Drew G. Faust lauded Kagan in an e-mailed statement, saying that because of her, “the student experience is richer, the curriculum fresher, and the school continues to enhance its worldwide leadership in legal education and scholarship.”

NOT A QUESTION OF EXPERIENCE

Though Kagan has never appeared before the Supreme Court, several law professors said that they expected her to ease into the new role after spending over five years within what they called one of the most contentious legal environments in the country.

“The best oral advocate is someone who can understand what the question is,” said Lawrence Lessig, a Stanford Law School professor who argued a high-profile Internet copyright case before the Supreme Court in 2002. “It’s not about rhetoric.”

Lessig will return to Harvard this summer—one of Kagan’s many recruiting coups as dean.

Constitutional law expert Laurence H. Tribe ’62, who has argued over 30 cases before the Supreme Court, gave a similarly glowing endorsement of Kagan’s abilities. He pointed to her deft handling of a politically and philosophically divided faculty as evidence for her future success as solicitor general.

“If it were anyone other than Elena Kagan, then a lack of experience would be a problem,” he said.

Tribe employed both Kagan and Obama as research assistants during their time at Harvard Law School, which did not overlap. In recent years, Tribe has generously praised Kagan and emerged as a close adviser to Obama.

According to Reagan administration solicitor general and noted conservative Charles Fried, Kagan’s lack of experience advocating before the justices may even be an asset. Calling her a “fresh face,” Fried said that some of the justices might “appreciate” the presence of a relative newcomer.

Media reports mentioned Kathleen M. Sullivan, dean of Stanford Law School from 1999 to 2004, as one of Kagan’s main competitors for the post. Unlike Kagan, Sullivan has appeared several times before the Supreme Court, and she is also known in some legal circles as a highly skilled litigator.

Despite Sullivan’s greater experience litigating, Kagan has a longer history with Obama, stretching back to their shared time on the faculty of the University of Chicago Law School in the early and mid-1990s. Kagan has supported Obama, a Law School graduate, in the past as well.

But Kagan’s relationship with Obama may not have been a deciding factor.

“Sullivan took herself out of consideration well over a month ago,” Tribe said. “Her name was bandied about in the media, but she was never a serious contender.”

CHALLENGES FOR THE NEXT DEAN

Obama’s gain, though, is already being viewed by Law School faculty as Harvard’s loss. Many say they agree that Kagan’s successor will find it difficult to follow Kagan, who was described by law professor Einer R. Elhauge as “the greatest dean in her time.”

Other legal academics have expressed uncertainty over whether Harvard can build upon the institutional improvements that Kagan has enacted or whether it will backslide after her departure.

“The question is how much of this is due to her—the force of her personality and her skill—and how much of it is the change in institutional culture,” said Brian R. Leiter, a University of Chicago law professor and legal blogger. “If it’s all dependent on her force of personality, Harvard is in trouble.”

The decline of the University’s endowment, which fell by an estimated 22 percent in four months during a period of global economic turmoil, may restrict the new dean’s first moves. As the University prepares to tighten its belt, Kagan’s successor will inherit the responsibility of making decisions based on financial compromises.

As a result, Law School professor Richard H. Fallon said, it will be difficult to distinguish any changes brought about by a new dean from those forced by the economic climate.

Fallon said that by the nature of the varied demands in the job description, the next dean of the Law School faces a “virtually impossible” job upon moving into Kagan’s office in Griswold Hall.

“I don’t know anybody who has the energy and diverse set of talents to do all those things as well as Elena has done them over the past six years,” he said.

During her time at the Law School, Kagan has taught constitutional and administrative law. She became dean after just two years as a full professor, succeeding Robert C. Clark in 2003.

Kagan clerked for Supreme Court Justice Thurgood Marshall and U.S. Appeals Court Judge Abner Mikva before serving as a domestic policy adviser under President Clinton.

The announcement marks a continuation of Obama’s push to put in place his cabinet and key advisers as soon as possible. By contrast, President Bush’s first solicitor general, Theodore B. Olson, was nominated on Feb. 14, 2001 and did not take the oath of office until June of that year.

Faust said that she will consider appointing an acting dean to run the Law School if Kagan departs but that “the nature and timing of our own next steps [are] dependent on the course of the Senate’s confirmation process.”

—Staff writer Elias J. Groll can be reached at egroll@fas.harvard.edu.

—Staff writer Athena Y. Jiang can be reached at ajiang@fas.harvard.edu.