One of Solicitor General Elena Kagan's assets as a potential Supreme Court nominee is said to be her collegiality across the political spectrum. That bonhomie was on full display Thursday as she heaped praise on Justice Anthony Kennedy at an award ceremony put on by Georgetown University Law Center's Supreme Court Institute.
Kennedy was being honored by the institute for his contributions to the Court and to civil discourse at the Court and beyond. Maureen Mahoney, of counsel at Latham & Watkins, led off with praise for Kennedy's "passion for the Constitution" and for "setting the standard for judicial temperament."
Kagan spoke next, saluting Kennedy for "his independence, his deep convictions about the importance of freedom ... for the rule of law." Kennedy's opinions, she said, "don't fall into any line," instead reflecting that "he has charted his own course." His decisions, she said, "are the product of extraordinarily deep care and consideration and thought."
Still viewed widely as the front-runner for the high court nomination, Kagan made no mention of the vacancy or of the speculation. At one point, Kagan raised audience eyebrows when she said she would remember an exchange she had with Kennedy "for the rest of my career as an advocate" -- not a formulation you would expect from someone who thought that career will end in a few months with her confirmation to the high court.
That memorable exchange with Kennedy that Kagan was recalling, by the way, offered a glimpse into how Kagan handled her first oral argument before the high court -- or any court -- last September in Citizens United v. Federal Election Commission. That's the landmark campaign finance case that Kagan lost 5-4, with Kennedy writing the majority.
In spite of her earlier praise for Kennedy, Kagan told the Georgetown audience that the justice had "a bit of a bad habit," namely that he asks advocates about cases that are not mentioned anywhere in the briefs for the case. Kennedy did just that in Citizens United when he asked Kagan whether something she had just said was "inconsistent with the whole line of cases that began with Thornhill v. Alabama and Coates v. Cincinnati." (See page 41 of the transcript (pdf).) Perhaps many advocates know those cases, Kagan said, but "I at any rate did not." She added, "There was a look of panic on my face."
Without knowing for sure, Kagan said she believes that Kennedy "saw in the flash of an instant that ... I really had no clue" about the cases he was asking her about. Instead of waiting for her painful reply, Kennedy quickly went on to explain the Thornhill line of cases -- which relate to facial challenges to statutes under the First Amendment -- with enough detail that Kagan was able to recover and answer the question.
Kennedy's kind rescue, Kagan said, showed that the justice had "sensitivity to my plight" and confirmed his "fundamental decency and abiding humanity."
Kennedy thanked the institute for the honor, and congratulated the institute for its work in fostering "rational, decent, progressive discourse" at the Court. Among other things the institute, now in its 11th year, runs practice moot courts for advocates in almost all of the Court's argued cases -- 75 out of 77 this term alone, using 164 volunteer "justices," according to Executive Director Pamela Harris.
This article first appeared on The BLT: The Blog of Legal Times.
