Elena Kagan was fresh off a political defeat in late 1988. The presidential candidate she had worked for, Democrat Michael Dukakis, had lost convincingly to Republican George H.W. Bush, and she had to decide what to do next.
Kevin Baine had a suggestion for her: come to work at Williams & Connolly, the small but elite Washington law firm known for its unusual mix of litigation clients. Baine, a partner at the firm, had interviewed Kagan a couple years earlier when she applied to clerk for Justice Thurgood Marshall, and Baine had kept in touch with her since.
“I don’t think there was any illusion when she came that she would be a permanent fixture at Williams & Connolly,” Baine said in an interview Tuesday. But Kagan, like countless other young lawyers, saw an opportunity to experience how the legal system works. “I think that she felt that that time in her life was the right time to experience the legal practice,” Baine said.
The 28 months that followed are likely to get scrutiny from Senate Republicans over the next three months, as they evaluate Kagan’s nomination to the Supreme Court. Kagan’s time at Williams & Connolly represents almost the entirety of her litigation experience prior to her confirmation as solicitor general last year. “It’s something to be considered,” Sen. Orrin Hatch (R-Utah), a member of the Senate Judiciary Committee, said Tuesday.
Kagan worked for a wide array of clients — chosen in most if not all instances by the firm’s partners, not by her. Williams & Connolly, unlike many large firms, does not have separate departments for different kinds of litigation, and associates there are expected to gain a breadth of experience in the law by assisting different partners.
“You didn’t come into our firm and say, ‘I want to be one thing or another,’” said Robert Barnett, a partner at the firm.
Kagan worked for, among others, a real-estate investment trust, a regional Toyota distributor, and the Recording Industry Association of America, and she handled several cases associated with the savings-and-loan crisis. The subject matters were also varied: a bankruptcy, a grand-jury investigation, a controversial search by the Office of the Comptroller of the Currency, and, in a case involving the rap group 2 Live Crew, the application of the Supreme Court’s obscenity standard.
In 1999, Kagan estimated her work at Williams & Connolly to have consisted of one-third business litigation, one-third criminal matters, and one-third First Amendment litigation, according to a questionnaire she completed after her nomination to the U.S. Court of Appeals for the D.C. Circuit.
Day-to-day, like other litigation associates, she would take depositions, draft briefs for trial and appellate courts, research topics, discuss strategy with partners, and occasionally argue motions in courts.
“The training is about as good as you’ll get anywhere in the world,” said Gregory Craig, a former Williams & Connolly partner who said he worked with Kagan on one matter, which he would not disclose, in 1989. Craig, who served as President Barack Obama’s first counsel, is now a partner at Skadden, Arps, Slate, Meagher & Flom.
Kagan also nurtured an interest in a topic, the First Amendment, that she later studied as a professor at the University of Chicago. She and others from the firm defended Newsweek and the National Enquirer against claims of libel. They also represented The Washington Post and a Washington TV station in trying, successfully, to win access to unredacted court records related to the case of high-profile drug dealer Rayful Edmond III.
“During my time at Williams & Connolly, I argued a number of these access motions for the Post and other media entities, as well as a number of motions to quash subpoenas on reporters for notes or testimony,” Kagan wrote in 1999 for the Senate’s questionnaire.
Later, when Kagan was applying to teach at law schools, one defamation case that she worked on at Williams & Connolly formed the basis of a presentation she gave to faculty members, Baine said.
Though the firm’s primary founder, Edward Bennett Williams, died months before Kagan joined the firm, the experience still opened doors to power-players. Aside from Craig, she worked with high-profile partners such as Barnett, a top media agent for politicians, and David Kendall, who has represented the Clintons since 1993 in matters including the Whitewater investigation. A few years ahead of Kagan were Jeffrey Kindler, now the CEO of Pfizer Inc., and Cynthia Hogan, now counsel to Vice President Joe Biden and a top Obama administration staff member on judicial nominations.
Lawyers who worked with Kagan described her as easy to like, hard-working, and calm.
“I can’t recall her ever raising her voice, which is something that around here is extremely rare, especially with me,” said Paul Wolff, a partner.
Barnett said he was introduced to Kagan through Abner Mikva, for whom Kagan had clerked on the U.S. Court of Appeals for the D.C. Circuit. Barnett praised her creativity in examining cases that came before the firm, though, like other Williams & Connolly lawyers, he declined to discuss specifics of cases.
“She would take a situation and find arguments — strongly legally and precedentially based — that people much more senior had not seen,” he said.
Two lawyers who served as opposing counsel to Kagan said they had little or no memory of her work, either because she was a junior associate or because two decades have passed since the cases ended. “I don’t have any recollection of her,” said Washington solo practitioner Elise Haldane, who argued against Kagan, and lost in federal district court, in the drug-deal records case.
Current and former Williams & Connolly lawyers said they were not surprised when, in June 1991, Kagan left the firm to become an assistant professor at Chicago. Striving to become a member of the partnership, they said, never seemed to interest her.
“Part of staying in private practice and not going into government or teaching is that it gives you a lifestyle that is very enjoyable,” said Wolff, “and I don’t think that was ever on her horizon.”
David Ingram can be reached at firstname.lastname@example.org.