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Published: Tuesday, 5/11/2010

Court nominee familiar with confirmation path


WASHINGTON - Elena Kagan knows more than most about the confirmation gauntlet that's coming.

The former Harvard Law School dean has studied it, as a scholar. She has worked it, as a Senate staffer. She has endured its frustrations, as a stalled judicial nominee in the Clinton administration.

Most recently, the 50-year-old Ms. Kagan has prevailed in it, surviving her January, 2009, confirmation hearing to serve as the Obama Administration's solicitor general. So if she sounds a tad cynical, she's earned it.

"[Confirmation] hearings have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis," Ms. Kagan wrote in a 1995 University of Chicago Law Review article.

But now, the never-married New York City native must seriously attend the very process whose flaws she knows so well.

Conservatives will press her about opposition to on-campus military recruiting. Liberals resent her full-throated defense of a president's wartime prerogatives similar to those claimed by former President George W. Bush.

There's much in Ms. Kagan's past to suggest pressure does not faze her.

The daughter of a lawyer, Ms. Kagan graduated summa cum laude from Princeton and magna cum laude from Harvard Law School and picked up a graduate degree from Oxford.

She's punched through several glass ceilings, as the first female dean of Harvard Law School and the first female solicitor general. The latter position is sometimes called "the tenth justice" for its sway with the nine-member Supreme Court.

Not least, Ms. Kagan has shown a precocious ability to find well-placed mentors.

The first judge she clerked for in the mid-1980s, former Chicago congressman Abner Mikva, turned out to be a key political adviser to a young Barack Obama. The Senate Judiciary Committee chairman she served in the early 1990s, Joseph Biden, is now vice president. The law school professor for whom she worked was Harvard's most famous, Laurence Tribe.

From 1995 through 1999, Ms. Kagan worked in the Clinton administration's White House on tobacco regulation, welfare reform, and other domestic policies.

She previously helped ease confirmation of Justice Ruth Bader Ginsburg in 1993, as Mr. Biden's special counsel to the Senate Judiciary Committee.

Ms. Kagan does not have a lot of courtroom experience.

She worked less than three years in a Washington law firm before entering academia. She helped represent media clients ranging from the Washington Post to the National Enquirer, but she never tried a case to the end.

Since becoming solicitor general, Ms. Kagan has argued half-a-dozen cases before the Supreme Court.

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