High court Kagan's girlhood dream

WASHINGTON —

She was a product of Manhattan's liberal, intellectual Upper West Side — a smart, witty girl who was bold enough at 13 to challenge her family's rabbi over her bat mitzvah, cocky (or perhaps prescient) enough at 17 to pose for her high-school yearbook in a judge's robe with a gavel and a quotation from Felix Frankfurter, the Supreme Court justice.

She was the razor-sharp newspaper editor and history major at Princeton who examined American socialism, and a Supreme Court clerk for a legal giant, Thurgood Marshall, who nicknamed the diminutive lawyer "Shorty."

She was the reformed teenage smoker who confessed to the occasional cigar as she fought Big Tobacco for the Clinton administration, and the literature lover who reread Jane Austen's "Pride and Prejudice" every year.

She was the opera-loving, poker-playing, glass-ceiling-shattering first woman to be dean of Harvard Law School, where she reached out to conservatives (she once held a dinner to honor Justice Antonin Scalia) and healed bitter rifts on the faculty with gestures as simple as offering professors free lunch, just to get them talking.

Careful path

Elena Kagan has been all of these things, charting a careful and, some might say, calculated path — never revealing too much of herself, never going too far out on a political limb — that has led her to the spot she occupies today: the first female solicitor general of the United States, who won confirmation with the support of seven Republicans, and now, at 50, President Obama's nominee for the U.S. Supreme Court.

As a young writer for The Daily Princetonian, the student newspaper at Princeton, Kagan offered insight into her worldview. She had spent the summer of 1980 working to elect a liberal Democrat, Elizabeth Holtzman, to the Senate. On election night, Kagan drowned her sorrow in vodka and tonic as Ronald Reagan took the White House and Holtzman lost to "an ultraconservative machine politician," she wrote, named Alfonse M. D'Amato.

"Where I grew up — on Manhattan's Upper West Side — nobody ever admitted to voting for Republicans," Kagan wrote, in a kind of Democrat's lament. She described the Manhattan of her childhood, where those who won office were "real Democrats — not the closet Republicans that one sees so often these days but men and women committed to liberal principles and motivated by the ideal of an affirmative and compassionate government."

It was perhaps the last time Kagan shared her political views so openly.

At Hunter College High School in the 1970s, Kagan was a standout in a school of ultrabright girls. At least one classmate, Natalie Bowden, remembers she had an ambitious dream: to become a Supreme Court justice.

"That was a goal from the very beginning," Bowden said.

The school was and remains one of New York's elite public high schools, enrolling girls on the strength of their performance on an entrance exam, rather than money or family connections.

Kagan, the middle child of three, grew up in a family that embraced such values. They lived in a third-floor apartment at West End Avenue and 75th Street that was comfortable, but not fancy, in the days before the Upper West Side became trendy.

Kagan's mother, Gloria, who died two years ago, taught fifth and sixth grade at Hunter College Elementary School, which Elena attended. Her brothers followed their mother's footsteps. Marc, a onetime subway worker and union activist, teaches social studies at the Bronx High School of Science, while Irving teaches social studies at Hunter College High.

Kagan, who has never married, adopted her father's love of opera, the New York Mets and the law. She brought a chuckle out of the senators at her confirmation hearing when she called herself "a famously excellent teacher." But family friends say she is her father's daughter.

Robert Kagan, who died in 1994, represented tenant associations whose rental apartments were being converted to co-ops. A graduate of Yale Law, he was also immersed in the politics and culture of the West Side.

After Kagan's arrival at Princeton in the fall of 1977 she quickly found a home at the student paper. By her senior year she held the No. 2 slot: editorial chairwoman.

Her circle of friends included Eliot Spitzer, the future governor of New York, who became student body president. Bruce Reed, who would hire her as his deputy when he ran the White House Domestic Policy Council under President Clinton, worked under Kagan at the paper.

As a history major, Kagan dove into the roots of American radicalism in a senior thesis titled "To the Final Conflict: Socialism in New York City, 1900-1933." In the acknowledgments, she thanked her brother Marc, whose "involvement in radical causes," she wrote, "led me to explore the history of American radicalism in the hope of clarifying my own political ideas."

She graduated summa cum laude, went off to Oxford on a two-year fellowship and returned to enroll in law school at Harvard, where, perhaps predictably, she made law review.

She went on to win two plum clerkships, first for Judge Abner Mikva, of the federal appeals court in Washington, and then for Marshall.

In 1988, after her clerkship, she went to work for Williams & Connolly as a litigator in Washington.

Eager to make a mark

If there was one trait about Kagan that stood out, beyond her obvious intellect, it was her fierce ambition.

"This was a very focused person," said Richard A. Epstein, a professor at the University of Chicago law school, where Kagan took a job in 1991. "There was this desperate desire to get ahead in the world and make a mark for herself."

Kagan arrived the same year as another bright young lawyer, Barack Obama, an Illinois state senator who lectured in constitutional law on the side. She quickly demonstrated a gift for teaching.

She was granted tenure in 1995, despite the reservations of some colleagues who thought she had not published enough. Shortly thereafter, Washington beckoned. Mikva was Clinton's White House counsel and offered Kagan a spot as an associate.

In December 1996, Bruce Reed, her old friend from Princeton who was then Clinton's director of domestic policy, asked her to stay on as his top deputy.

Inside the White House, Kagan developed a reputation as a kind of in-house constitutional lawyer, batting around ideas with the president. She was also a policy powerhouse on a range of matters, including a contentious tobacco bill that sought to give the Food and Drug Administration regulatory authority over cigarettes. Although it never passed, she won over important Republicans like Sens. John McCain of Arizona and Bill Frist of Tennessee.

But Jamie Gorelick, a deputy attorney general in the Clinton administration, told The New York Sun in 2006 that Kagan, whom she admired, was sometimes seen as brusque and overly demanding.

In 1999, Clinton nominated her to a seat on the federal appeals court for the District of Columbia, where she had clerked for Mikva. But the nomination fell through; Republicans would not schedule a hearing. The seat eventually went to John Roberts, now the chief justice.

Leaving Washington, Kagan tried to return to Chicago but was rebuffed. Instead, she took a visiting professorship at Harvard; four years later, the university's president, Lawrence Summers (now Obama's top economics adviser) installed her as dean.

Kagan undertook a top-to-bottom transformation. Often, her consensus-building efforts revolved around meals — a hint, friends say, of her nurturing, Jewish-mother side.

The faculty was split into ideological factions and each could stop a new hire. Kagan convinced her colleagues that the law school needed fresh blood. She went after star professors at other universities and helped raise significant amounts of money to lure them to Cambridge. In less than six years, she added 22 slots to a faculty of 81.

Strong stand on gays

For someone so prominent in academia, Kagan published little. Except for her deep involvement in a fracas over whether military recruiters could use the law school's facilities, Kagan did not write or speak out on the issues of the day. But on the matter of barring gays from openly serving in the armed forces, she was adamant, and her statements are bound to be a subject of her confirmation hearings.

"I abhor the military's discriminatory recruitment policy," Kagan wrote, calling it "a moral injustice of the first order."

When Kagan left Harvard to become solicitor general, the federal government's top appellate lawyer, in March 2009, she had argued no cases in the U.S. Supreme Court and had, indeed, just recently become a member of its bar.

Six months later, she made her debut in a case that would turn out to be one of the court's biggest decisions in recent years, Citizens United v. Federal Election Commission.

She lost. The court ruled 5-4 against Kagan in January, with the more conservative justices in the majority. Obama has used the case to argue that the court under Roberts is engaging in a conservative brand of judicial activism.