The dog days of August are when nothing, typically, gets done in Washington. But Elena Kagan won't have the luxury of easing into her new job as a U.S. Supreme Court justice.
She'll be hiring law clerks and secretaries, setting up her chambers, wading into thousands of incoming petitions and handling emergency matters -- which may soon include an appeal of a stay in the California same-sex marriage case. "In a sense she's already a month behind," said Douglas Hallward-Driemeier, head of Ropes & Gray's appellate and Supreme Court practice, who was at the solicitor general's office when Kagan started that job last year. "The number of petitions you face is enormous."
Indeed, more than 2,000 petitions for review typically pile up during the Court's summer recess, though it is hard to know whether her new colleagues, some of whom have been traveling abroad since the Court recessed on June 28, have gotten much of a jump on Kagan in flipping through the briefs.
"There's plenty of time for her to get up to speed," said Tom Goldstein, litigation co-leader at Akin Gump Strauss Hauer & Feld.
Isn't it possible that, while waiting for the Senate to vote on her confirmation, Kagan has already peeked at the petitions? Not likely, said Hallward-Driemeier. "She would have been very careful not to be forming an opinion about cases while wearing her hat as a government lawyer," he said. Kagan has already indicated she will recuse in 11 already docketed cases because of her involvement at earlier stages as solicitor general.
The Court is currently in recess, but that does not prevent emergency matters from interrupting the summer calm. If the judge in the California same-sex marriage case issues a stay, opponents will undoubtedly appeal and it may make it to the Supreme Court fairly quickly, putting a spotlight on her even though the actual merits of the issue may not go before the Court for a year or more. Then too, eleventh-hour death row appeals can keep justices and their clerks working late during the summer.
Although she has never been a judge, Kagan is likely to have an easier transition than many of her predecessors. Justice Samuel Alito Jr., accustomed to anonymity in judicial chambers in Newark, N.J., confessed he got lost walking the halls of the Supreme Court when he first arrived in 2006.
As solicitor general, Kagan already had an office at the Court -- albeit little-used -- and is conversant not only with the geography but with Court personnel. The fact that she clerked there for the late Justice Thurgood Marshall also gives her a level of familiarity that other newcomers lack. "She knows all the players, and they know her," Hallward-Driemeier said. "It's a very welcoming environment, a huge amount of support from the other chambers," Goldstein said.
"Like any new job, there's a lot of figuring out how the trains run," said Deanne Maynard, the appellate chief at Morrison & Foerster who clerked for Justice Stephen Breyer during his first term. "But she has a definite leg up."
Most justices who arrive at the Court from an appellate bench bring along some of their former clerks to the high court. In Breyer's first year, two of his clerks had worked for him at the U.S. Court of Appeals for the 1st Circuit, and the other two had clerked for other justices.
Kagan has no former clerks to recruit, but as former dean of Harvard Law School, she'll have no trouble finding some, either clerks willing to stay on from last term -- eight were from Harvard -- or prior clerks for other justices. Former Harvard colleagues are ready to provide her with names -- she had not interviewed any as of Aug. 6 -- so she can staff up quickly. Hallward-Driemeier quipped that Kagan is "surely not so impolitic" as to hire only Harvard grads.
Hallward-Driemeier said Kagan also has a big advantage in the fact that, as solicitor general, she is already immersed in the way the Court approaches cases. "There is no better job than that to prepare for the Court, to familiarize yourself with the concepts, the breadth of the issues the Court deals with and the tools of analysis they use."
When she arrived as the new solicitor general last year, he said, "She adapted very quickly." Kagan became known for sitting in on meetings when parties before the Court seek the SG's support, meetings that deputies usually handle. But she was also eager to hear from the lawyers in the office, Hallward-Driemeier said. "She met with a number of the assistants to find out what was working well and not working well in the office," he said. "She wasn't a bull in the china shop at all."
