In the wake of news that Supreme Court Justice David H. Souter plans to retire soon, attention is turning toward Elena Kagan as a possible replacement -- even though she just started another job. She's the new U.S. solicitor general -- the first female to hold the position.
Just days before the Souter news broke, The National Law Journal interviewed Kagan about her new job -- her first interview since taking office March 20 as the government's top lawyer before the U.S. Supreme Court. The former Harvard Law School dean responded to concerns from those who want the Obama administration to take positions before the court that are sharply different from those of the Bush era.
"The justices don't expect -- and indeed don't want -- every position to change," Kagan said. But she added that over time the court will understand that a new administration is charting a new course. That will occur when she defends Obama-era regulations and makes different decisions on which cases to take. Already, she said, her office has taken positions in civil rights cases that "the last SG's office wouldn't have taken."
In the interview, Kagan also revealed why she decided not to argue a case during this term, even though she says, "I'm very excited by the prospect." She is eyeing two First Amendment cases in the fall for her debut at the lectern.
Kagan, 49, addressed two less lofty issues: whether she'll adopt the traditions of her male predecessors who a) liked to be addressed as general and b) wore old-fashioned swallowtail morning coats to court. Kagan was coy about the morning coat, but on the salutation she was clear: Call her General Kagan.
How's the job so far? Justice [David] Souter said his first days on the Supreme Court were like walking into a tidal wave. Has it been like that?
The line I've been using is that it's like drinking out of a firehose. A different metaphor, but the same sentiment. There are just loads of new things coming at you all the time. But, of course, that's what makes it an amazing job.
How does it compare to being dean of Harvard Law School?
Well, that was an amazing job, too. I can't tell you how lucky I think I am to have been given the opportunity to lead these two institutions. Of course, Harvard Law School is much bigger than the SG's office, so a much greater managerial challenge. And this seems funny to say, but my job at Harvard was much more political than my job here. The SG position is really an "all law, all the time" job, which is what makes it such a pleasure.
What's it been like being in on the early days of a new administration? How much contact do you have with Attorney General Holder?
It's a very exciting and inspiring time, and I think no place more than at the Justice Department. The attorney general's leadership has been palpable. He's given people in the building a sense of all kinds of new and great possibilities. I see him most days -- if for no other reason than that he's just down the hall from me. But I try not to enter or exit the building at the same time he does. We're on the fifth floor, and he's one of these people who insists on only taking the stairs.
How has Washington changed since the last time you worked here?
Better restaurants in Penn Quarter -- which is a good thing if you work in the Justice Department.
Were you prepared for the confirmation process? Was it tougher or easier than you were expecting?
The DOJ nominations team was fabulous; I'm very grateful to them. The process itself is difficult. For someone like me, who's done a lot of writing and a ton of public speaking, the sheer amount of stuff that has to be listed and collected is very daunting. I kept on saying to the people who were advising me some variant of: "Surely, they can't expect me to find that." And the answer was always: "Oh yes, they can."
How do you deal with the expectation that, because there's been an election and a new direction on so many issues, you, too, should be taking new positions before the Supreme Court?
Well, I think for the SG's office, the expectations that matter most are the Supreme Court's, and I think the justices don't expect -- and indeed don't want -- every position to change. They know that the SG's office represents the long-term interests of the United States, and, with respect to a great many matters, those interests are stable from administration to administration. The client, you might say, doesn't change.
And yet, shouldn't the Supreme Court learn at some point that there has been an election and a change of course?
Absolutely. The clearest way a change manifests itself in the Supreme Court is when the underlying substantive law changes. For example, the SG's office frequently defends agency regulations and policies; if, in a new administration, the agencies are changing their regulations and policies, then what the SG's office is defending will change as well.
And it's also true that the SGs of different administrations may make different decisions about whether and how to participate in certain cases, especially as an amicus. I think, for example, that the last SG's office wouldn't have taken the positions we did in a couple of the civil rights cases argued in April. So yes, much stays the same -- and should -- but some important things can be expected to change.
How do you like being addressed as "General Kagan?" I hear you don't mind it.
A few more weeks, and I'll be expecting everyone to salute me. But seriously, I'll tell you a story. Just after my confirmation, a member of the administrative office of the court called to ask me whether I wanted the justices to call me "general" during oral argument. It was a very considerate thing to give me the choice; I know, for example, that Attorney General [Janet] Reno disliked being called "general." But my thought basically was: the justices have been calling men SGs "general" for years and years and years; the first woman SG should be called the same thing.
Was too much made (by myself and others) about your lack of experience in appellate argument?
Well, Tony, I have to tell you that I think you made more out of it than most people! But that's OK. I was fair game, and I can understand why, if you don't know me, the question might arise. To tell the truth, it didn't bother me very much because I'm confident that I'll be good at that part of the job.
How do you feel about the prospect of arguing before the high court? What are your first impressions about oral arguments after watching them since taking office?
I'm very excited by the prospect. I think this is an extraordinary court -- one of the best of all time. And in particular, the level of intelligence up on that bench is just staggering. So what could be more fun than to engage with them and to be challenged by them and to try and persuade them?
So why did you decide not to argue a case this term?
I only got to the office at the end of March, and the arguments in April were the last of the term. The cases in the April sitting had already been fully briefed, and the people who had done all that work were the best prepared to argue them. It would have been vanity to replace them, and I do try to suppress that quality in myself.
Have you already decided which case you'll start with in the fall?
I don't know yet what the full lineup will be, but there are two cases involving the constitutionality of federal statutes -- one having to do with the display of a religious symbol [Salazar v. Buono] and the other having to do with depictions of cruelty to animals [U.S. v. Stevens.] Any case in which there's a constitutional challenge to a federal statute is a natural case for the SG to do.
I've got to ask if you've decided whether to wear a morning coat when you do argue. A lot of people are wondering.
I'd be giving you a big scoop if I told you that, Tony. In fact, the real reason I didn't argue in April was to keep the suspense going over the summer. I'll just say that I've learned in the last month that this is a very complicated question. There are a great many people who feel that they have a stake in it -- although I should note that the justices themselves have made clear that the choice is entirely mine.
What input on this issue are you getting from the women and men in the office?
I suspect if I took a vote in the office, it would come out in favor of the morning coat. And most of the women in the office now wear the coat themselves. But one of the things I learned as a law school dean is that sometimes you don't take votes. In the end, I'll decide this one by myself.
What's your impression so far of the lawyers and staff in your office?
Just incredible. This is a tiny office -- barely 20 lawyers and about that same number of staff. When you think of all the work that this small group of people produces, it's amazing to me. And then when you think about how high quality that work is, well it's just mind-boggling. I feel privileged every day to be in the company of these people. There's no doubt in my mind that this is the best law office in America.
Do you foresee making changes in the office's operations or traditions?
Is that just another way of asking me about the morning coat? Putting that aside, I'll say both no and yes. On the one hand, if things aren't broke, you shouldn't fix them -- and as I just said, this office is definitely not broke. On the other hand, I think that no one who knows my record at Harvard would characterize me as a stand-pat kind of person. Even the greatest of institutions can learn to do things better. So I'm sure I will make some changes -- though given that I'm still drinking out of that firehose, I'm not at all sure yet what those will be.