Kagan’s a not-so-leftist liberal
For Elena Kagan, it was a moment of sheer triumph.
Presiding over a gala dinner three years ago among the Italianate arches of the art museum at Harvard University, a beaming Kagan praised the honoree, Bruce Wasserstein, then the chairman of famed Wall Street bank Lazard Ltd.
FOR THE RECORD:
Elena Kagan: A June 27 article in Section A about Supreme Court nominee Elena Kagan said that Hunter College Elementary School in New York was a private school. It is a public school. —
Wasserstein’s donations had helped Kagan break ground on a massive, state-of-the-art facility at the law school, where she was the dean. The construction cranes rising above Harvard Law’s campus today serve as a testament to Kagan’s prowess; she spearheaded a fundraising campaign that raked in almost half a billion dollars for the school.
By the time she left Cambridge last year to become solicitor general in the Obama administration, she had cemented a reputation as someone who could get things done at the highest levels of academia, business and government. At 50, she is firmly in the establishment, apparently as comfortable with conservatives such as Supreme Court Justice Antonin Scalia, whom she also feted at Harvard, as with her mentor, liberal Justice Thurgood Marshall.
Kagan had embraced a world far different than that of her father, Robert, a New York street lawyer whom she is said to have idolized. He often fielded 50 telephone calls a day from angry tenants, and spent evenings at community meetings advising them on how to keep their homes. Government officials and Wall Street barons were the enemy.
The Elena Kagan who will be on display at her Supreme Court confirmation hearings in Washington this week is anything but a community rabble-rouser. On her path toward this moment, she cast aside the black-and-white, good-versus-evil idealism of her father and her youth, instead pursuing a life of pragmatism, nuance and politics. She would leave the crusading to others.
From the mid-1960s to the mid-70s, Robert Kagan chaired a local community board on the Upper West Side. Throughout his career, he represented about 300 small tenants’ groups fearful of losing their homes. He was not above legal theatrics, once tying himself to a tree to protest the bulldozing of a park.
“Bob Kagan had the human touch,” his law partner William J. Lubic said in the eulogy at Robert Kagan’s funeral.
Elena’s mother, Gloria — like Robert, a child of Russian Jewish immigrants — taught at the private Hunter College Elementary School. Kagan would attend the school herself.
“It was really free and open,” said Irv Steinfink, a former history teacher there. “This was a very liberal school.”
For her class picture at Hunter, Kagan posed in a judge’s robe, signaling to her classmates her dream of one day sitting on the bench. “She was a little gawky, thin, glasses,” Steinfink said. “But she also was really highly motivated and she had the ability to motivate others. I once said she was an alpha student in an all-girl school.”
Elena, her parents and her two brothers lived in a third-floor apartment on the Upper West Side. They rented, much like the tenants her father represented. The home had 10-foot ceilings and a small room for a house servant. But the Kagans, whom friends called unpretentious, converted the servant’s quarters into a home office and placed their dining table in the grand entryway. Their apartment was more efficient than grandiose.
Her brothers became teachers like their mother. Elena followed her father into law.
“She was a liberal like her father back then, growing up. And pretty good liberals they were, too,” recalled her uncle, Stanley Gittelman, a dentist in Philadelphia. “They were Jewish and lived in New York on the West Side. What else would they be?”
As an undergraduate at Princeton, Kagan mourned the election of Ronald Reagan in 1980. Writing in the student newspaper, she hoped that the conservative tide then sweeping the nation would result in a “new, revitalized perhaps more leftist left.” She worked for liberal politicians, first Elizabeth Holtzman, who lost a New York Senate race to Alfonse D’Amato, and later Michael S. Dukakis in his 1988 presidential bid against George H.W. Bush.
But her choice of Harvard Law School over the more liberal Yale, her father’s alma mater, was an early sign that the daughter would be different. Robert Kagan “was very disappointed” by the choice, Lubic said.
After graduation from law school in 1986, Kagan moved to Washington, and soon arranged to clerk for Justice Marshall. That summer, President Reagan promoted Justice William H. Rehnquist to be chief justice and named Scalia associate justice. They were determined to roll back the liberal rulings of the 1960s and ‘70s.
Though Marshall was an unwavering liberal, Kagan already appeared less so. Memos on file in Marshall’s papers at the Library of Congress show Kagan to be cautious, skeptical and, at times, scornful of those who would push the law too far to the left.
In 1988, for example, she wrote a memo to Marshall urging him to steer clear of a case involving pregnant women in a county jail in New Jersey. The sheriff refused to help them obtain abortions. When they sued, the federal judge in the case ruled that the county sheriff must transport the women for abortions and cover the cost if they could not afford it. This was in line with Marshall’s view. He was the court’s foremost advocate for the rights of prisoners. He also believed the government should be required to pay for abortions for poor women.
Undaunted, Kagan dismissed the opinion as far-fetched. “Quite honestly, I think that although all of this decision is well-intentioned, parts of it are ludicrous,” Kagan wrote in a memo to Marshall. “I do not see why prisoners should have such rights.” The court declined to take the case.
She also displayed a shrewd political instinct. At times, she urged Marshall to vote against hearing an appeal because Rehnquist’s conservative majority would use the case to make “bad law,” as she put it.
Almost a decade later, Kagan took the same cautious view into the Clinton White House as an advisor on domestic policy. Her specialty was finding a middle position on the most contentious issues, such as regulating tobacco and guns or outlawing late-term abortions. She backed a “religious freedom” act favored by conservatives.
John Podesta, then Clinton’s chief of staff, said, “Elena kind of has a responsibility streak to her, that people need to be responsible for their actions, that people need to make good choices.”
Kagan found a way to put those principles into practice. In 1997, the Supreme Court voted to hear the case of a white teacher from New Jersey who had been laid off. School officials had retained a black teacher with the same seniority, and they admitted race was the reason. Conservatives urged the Rehnquist court to rule for the white teacher and to outlaw all consideration of race in employment nationwide.
Clinton’s advisors were divided. Some favored a strong stand in defense of affirmative action. Others were wary. Solicitor Gen. Walter Dellinger proposed a delicate compromise: File a brief in support of the white teacher and say she was a victim of discrimination, but urge the court to leave the door open for affirmative action where minorities are badly underrepresented in the workforce.
Kagan was sold. She wrote across the top of the memo: “I think this is exactly the right position — as a legal matter, as a policy matter and as a political matter. Elena.” The administration used the compromise position in its brief, although the case was settled before the court took it up.
The political and consensus-seeking skills she learned in the Clinton administration would be needed at Harvard Law.
She became dean in 2003. “Elena took the post at a time when most people thought Harvard Law School was an unmanageable institution,” said Paul Clement, a Harvard alumnus who served as solicitor general in the George W. Bush administration and supports Kagan’s nomination.
Ideological battles among its faculty paralyzed hiring. A proposal to uproot the campus and move it across the Charles River was divisive. At a school not known for catering to its student body, Kagan launched a series of low-cost, high-reward initiatives such as free coffee and an outdoor skating rink that improved the quality of life, and more important, got the students squarely on her side. Those students included an increasing number of conservatives, who found that the new dean was more than hospitable to their points of view. “Now, the law school to go to in the country if you are a conservative is Harvard,” said Sarah Isgur, a 2008 graduate who is a Republican political consultant in Texas.
That new courtesy extended to its conservative graduates. One was Justice Scalia. At a celebration in his honor in 2006, Kagan praised him effusively, calling him an “extraordinary presence” on the high court and “among the greats.”
At the same time, the residue of her father’s lessons remained. She reemphasized public service in a school that was criticized as producing armies of lawyers for Wall Street and corporate America. She expanded the school’s clinical program and instituted a tuition-waiver program for students who entered the public sector.
As dean, Kagan could be warm, obsequious, charming, intimidating and sometimes temperamental, according to some of her former colleagues. She traveled the country, promoting the school and raising money like no dean ever had in the history of American law schools. With the Harvard endowment flush, she hired waves of new professors, defusing tensions among the polarized faculty. Her most audacious move was to recruit Jack Goldsmith, a lawyer who had served in the George W. Bush Justice Department and helped craft anti-terrorism policy.
Kagan backed the hire against criticism from some liberal faculty and alumni. “I think it was a disgrace,” said Francis Boyle, a Harvard Law graduate and a professor at the University of Illinois who will no longer donate money to the school because of the affair.
John Manning, a conservative law professor, joined the faculty months after Goldsmith in 2004. He said that Kagan’s efforts at the school suggest that if she is confirmed as a justice, she’ll be “collaborative” and will “listen to justices across the spectrum.” That thought has some liberals worried that Kagan might not be a stalwart backer of their cause on the bench.
“I think the way she dealt with conservatives shows that she’s capable of separating her institutional role from her own personal views,” Manning said.
Kagan’s parents have died and she has never married. Instead of bringing her remaining family to sit behind and support her at her Senate confirmation hearing for solicitor general in 2009, she brought Manning, Goldsmith and other conservative friends from Harvard.
They were “a little bit of family from Cambridge,” she told the senators, markedly different from the one she grew up with on the Upper West Side.