Kagan Discloses She Met With Skadden Lawyers Before Nomination

David Ingram

The National Law Journal

U.S. Supreme Court nominee Elena Kagan submitted her answers Tuesday to a background questionnaire from the Senate Judiciary Committee -- opening windows into her year as solicitor general, her finances, and the nominating process.

Her 202 pages of answers, along with boxes of supporting documents, will form the foundation of Kagan's confirmation hearing before the committee. Lawyers for the committee's Democratic and Republican staffs will be combing through the materials for information to support or oppose her confirmation.

Kagan disclosed that, in the weeks before her nomination, she sat down on at least two occasions with lawyers from Skadden, Arps, Slate, Meagher & Flom.

Amy Sabrin, a partner in the firm's Washington office who represented President Bill Clinton in the lawsuit brought by Paula Jones, met with Kagan on April 15. They were joined by Skadden associates Leslie Abrams, Robyn Carr, and Maya Florence and Deputy White House Counsel Susan Davies. Sabrin and Carr met again with Kagan on April 28.

Kagan listed the meetings in response to the committee's Question 25, which asked her to name whom she spoke with before her nomination. She also noted that she communicated -- she doesn't say how -- with Julia Kazaks, a partner in Skadden's tax practice.

The White House made use of outside legal advice during the nomination of Justice Sonia Sotomayor, too. Leslie Kiernan, a partner in the Washington office of Zuckerman Spaeder, was the first to interview Sotomayor about a potential nomination when she met the judge in her New York chambers last May, according to Sotomayor's answers to the Senate questionnaire.

Most of the pre-nomination work, though, was done by the White House's legal shop, Kagan wrote: White House Counsel Robert Bauer, Davies, Vice President Joe Biden's Chief of Staff Ronald Klain and Counsel Cynthia Hogan, White House Staff Secretary Lisa Brown and Attorney General Eric Holder Jr.

In response to a separate question, Kagan disclosed that she had recused from one Supreme Court case as solicitor general -- because a clinic at Harvard Law School, where she was dean, was involved -- and in three lower-court cases -- two because of Harvard clinics and one because of her friendship with former New York Gov. Eliot Spitzer.

Kagan wrote that she considered recusing from the U.S. Justice Department's civil racketeering case against cigarette makers, because she worked on tobacco issues in the Clinton White House. But she said she consulted with two department ethics advisers, and both "advised me that there was no reason to recuse myself from the case," Kagan wrote.

She lists a net worth of $1.76 million, up from $1.01 million when President Barack Obama nominated her to be solicitor general. She listed a $1.22 million mortgage a year ago, and she lists no liabilities now.

Also on Tuesday, Kagan continued her meetings with senators in their Capitol Hill offices, focusing on members of the Judiciary Committee.

Sen. Lindsey Graham, R-S.C., said he spoke with Kagan about legal issues surrounding antiterrorism, and he said his initial impression is positive. "During her time as solicitor general, for the most part, I think she's taken pretty well-reasoned positions about the legal rights of detainees," Graham told reporters after the meeting. He was the only Republican on the Judiciary Committee to vote to confirm Sotomayor.

Much of the written material the White House sent to the Judiciary Committee Tuesday relates to Kagan's years as dean of Harvard Law School. Senators wanted copies of materials she wrote or edited, and she lists scores of Harvard news releases that quote her. She writes that she personally edited "almost all" of the news releases.

She included at least two pieces that she had no role in writing: "Two April Fool's Day columns in the Harvard Law Record appear under my name, although I had no involvement in writing them," Kagan writes in response to Question 12. "They are attached."

The document dump includes 102 pages of stories that Kagan wrote, as an undergraduate, for The Daily Princetonian. In one piece, published after the November 1980 election, Kagan wrote that she did not expect so many Republicans Senate candidates -- including "Grassley" -- to win. Sen. Chuck Grassley, R-Iowa, is now a senior member of the Judiciary Committee.

For complete coverage of the Kagan nomination, see our special report, "The Choice."