Justice Elena Kagan. Credit: Diego M. Radzinschi / NLJ

Justice Elena Kagan, recalling the two times she met with then-President Barack Obama about U.S. Supreme Court vacancies, told a law school audience recently that the second time "was not better" than the first—even if the result was.

The first interview came after Justice David Souter retired, said Kagan, who served as the Obama administration's first U.S. solicitor general.

"We mostly talked about what I had learned since I had become solicitor general, mostly about the court, constitutional interpretation, statutory interpretation, how to be a good judge," Kagan said in recent remarks at George Mason University, part of a wide-ranging conversation that delved into her writing and career. "We really did talk about my solicitor general experience and what I sort of thought of the court after watching them for a number of months."

Obama later called Kagan to say he was nominating Justice Sonia Sotomayor. "He sort of said maybe there will be another chance," she said.

A year later, after Justice John Paul Stevens retired, Kagan went to the White House to interview for that vacancy.

"It was a crazy day at the White House," she said. "I walked in and it was the day of the BP oil spill and the president really had other things on his mind than to interview me. It was pretty late. I walked in and he said, 'I know you. We don't really have to do this.' It didn't feel all that great but I knew there were bigger fish to fry."

Kagan did not tell the George Mason audience that she was at one time vetted for a job at the Justice Department that wasn't solicitor general: deputy attorney general, the second-in-command post.

Kagan, responding to questions from Prof. Steven Pearlstein, noted that she holds the chair held by Stevens, who held the chair of Justice William Douglas. Those two predecessors both served more than 30 years on the high court.

"I call it the longevity chair," Kagan said.

Questions from the bench

Answering a question from Pearlstein about the blizzard of questions from the justices during arguments, Kagan remembered her first argument before the court—the reargument of Citizens United v. FEC. She said she got one sentence out when Justice Antonin Scalia leaned over and said, "Wait, wait, wait, wait." And then told her the sentence was completely wrong.

Kagan said she didn't mind the interruption, calling it "kind of great."

She then compared that experience with the court's new rule giving lawyers who argue two minutes of uninterrupted time at the start of their arguments.

"We now give people two minutes of uninterrupted time which feels like a lot. This year I've been watching these people try to fill two minutes of time without interruption and I think we should just do them a favor and interrupt them," Kagan said. "It just gets you in the game right away and gives them something to respond to."

U.S. Supreme Court Justice Thurgood Marshall on June 13, 1967. LBJ Library photo by Frank Wolfe.

The justice recalled her clerkship with Justice Thurgood Marshall and how that justice set his clerks straight when they vigorously argued that he had to do something particular in a case.

"You never didn't know who was boss in his chambers. He said, 'There are only two things I have to do: stay black and die,' which just sort of shut you up," she recounted to laughter in the audience. Marshall, she added, would point to his framed commission on the wall of his chamber and tell the clerks to walk over and read it as a reminder of who makes the final decision.

Kagan's clerks keep her 'in line'

Kagan is widely regarded as one of the current court's strongest writers, providing analysis and observations in a sharp, conversational style often tinged with humor.

Her own clerks, she said, "keep me in line." They tell her "too much snark" if any creeps into her opinions. "Most of my best lines end up on the cutting-room floor," the justice said.

A recent profile in The New Yorker described Kagan the writer this way: Kagan's gifts as a writer have less to do with vivid turns of phrase than with the ability to maintain readers' attention, guiding them from argument to argument, with the implicit assurance that they will encounter a beginning, a middle, and an end."

In her George Mason remarks, Kagan said she has read only three of her dissents from the bench in nine years. Sometimes, she said, dissents are used to tell the American people that "something has gone terribly wrong." Other times, she added, justices are writing for history.

Last term, Kagan read from the bench a scathing dissent in a case where the majority, led by Chief Justice John Roberts Jr., sidestepped trying to solve the problem of politically rigged election maps.

Kagan told the George Mason audience that she has written the forward to a forthcoming book about the opinions of the late Justice Antonin Scalia, also revered for his writing.

"What's so interesting to me—I looked at the table of contents, about 90% are separate items—concurrences or dissents. Those are basically saying, 'Here is how I think law should work' without worry are you going to get five votes for that. It's just you."

 

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