The big legal news this week is President Obama’s nomination of Elena Kagan to the Supreme Court of the United States. Elena Kagan has been serving as Solicitor General in the Obama administration (the Solicitor General is the federal government’s designated attorney before the U.S. Supreme Court) and was previously a law professor and Dean of Harvard Law School. By most objective measures, she is qualified to serve on the Supreme Court, and while a political fight is typical over Supreme Court nominations, I expect her to ultimately be confirmed by the Senate.
Great Lakes advocates know Elena Kagan for her work on behalf of the federal government in the Asian carp litigation recently before the U.S. Supreme Court. The United States joined with Illinois against all of the other Great Lakes states opposing any intervention by the Supreme Court. The Supreme Court ultimately sided with the federal government and Illinois, leaving the huge risk of Asian carp spreading into the Great Lakes to federal bureaucracies to manage. I don’t fault Ms. Kagan personally – this was the position of her client the federal government – although her brief completely ignored the federal government’s role in the introduction and spread of Asian carp.
My overall take on Elena Kagan is similar to most observers. She is a bright legal scholar, but her real talent seems to be in bringing diverse legal views together to find consensus – a critically important skill for a Supreme Court justice. Her scholarship is in the area of administrative law, although her scholarship itself is actually quite minimal by academic standards. (As Jonathan Zasloff notes on the Legal Planet blog, in terms of quantity, she has produced barely enough scholarship to qualify for tenure at most law schools.) Her leading article, “Presidential Administration,” 114 Harvard L. Rev. 2245 (2001), she argues for broad Presidential authority in directing agency actions and regulation, with significant deference from reviewing courts. I don’t share her views (I’m far more skeptical of federal agency discretion and would argue for more court oversight to protect individual rights), but it’s a reasonable and moderate position, and the scholarship itself is certainly top notch.
I can also share a little story about the first (and only) time I met Elena Kagan. One of her many accomplishments as Dean of Harvard Law School was growing the environmental law program. In 2007, Harvard hosted an inaugural Environmental Law Junior Faculty Workshop, organized by Prof. Jody Freeman (who was hired at Harvard under Dean Kagan), along with Ann Carlson of UCLA and Dan Farber of UC Berkeley’s Boalt Hall. The idea was to select five papers by younger environmental law faculty from around the country through a blind review process, then give these junior folks the opportunity to workshop their paper with feedback from some of the big names in the field. My paper on “Political Externalities, Federalism, and a Proposal for an Interstate Environmental Impact Assessment Policy” was selected (and later published in the Harvard Environmental Law Review), and I made my first (and still only) trip to that little known school in Cambridge, Massachusetts for the workshop.
As a public school kid teaching at Wayne State in Detroit, I felt intimidated and a bit out of place at Harvard. The workshop was filled with both junior and more senior scholars from “top ten” law schools, and while I was confident in the merit of my work, I wasn’t sure what to expect from the most ivory of the ivory towers. Then Elena Kagan stopped by to meet us and join the workshop for the brief time her schedule would allow. She was wearing jeans (oddly I was wearing a suit, a rarity for me). She instantly made me feel welcome and seemed interested in my ideas. It may have been her casual dress, but more likely it was just her warm, engaging personality. She was genuine, down to earth, and made the walls of Harvard Law School feel less like a barrier to the rest of us. Perhaps it’s a mistake to take too much from a single brief meeting. But if Elena Kagan could make Harvard Law School seem more open and less intimidating, I’d imagine she could do the same for our justice system.