Legal News

Boxing Elena: On Hill, Kagan Shows Humility, Vows to Defend Laws

By Ashby Jones

While most of the attention on Capitol Hill yesterday focused on Treasury Secretary Tim Geithner’s defense of the Obama administration’s new banking plan, another high-profile hearing was flying a bit under the radar: the confirmation hearings of Elena Kagan, President Obama’s pick for solicitor general.

The folks down at Legal Times have put together a nice roundup of the proceedings. One main point Kagan, currently the dean of the Harvard Law School, seemed to stress: that she’d make no dramatic changes to the federal government’s advocacy before the Supreme Court. She said she’d decline to criticize legal arguments made by the Bush administration and told members of of the Senate Judiciary Committee that she is prepared to defend almost any law Congress passes.

Kagan reportedly pledged to begin with the presumption that the solicitor general is obligated to defend laws even if the Obama administration opposes them. “I would have no difficulty in this area whatsoever. I would have no difficulty in any area defending a statute,” she said.

Sen. Tom Coburn (R-Okla.) asked how Kagan would respond in a case where a law had been undermined by a president’s executive order. “The obligation to defend a statute carries on,” Kagan replied. “It would not appear to me that an EO would call into question the legal basis of a statute.”

Others were pointedly critical of Kagan’s perceived inexperience as an appellate lawyer. John Kyl (R-Ariz.), a member of the Supreme Court bar since 1971, spoke at length about the importance of experience in appellate advocacy. “There is an advocacy ability that comes not just from academic knowledge but by doing it,” he said.

Kagan responded that she brings other experiences, as a teacher, administrator, and scholar skilled in a direct way of communicating. She also said she’s willing to learn. “I’m going to make a very intensive study of what I might be missing when I come to the job,” she said.

Full post as published by Law Blog - WSJ.com on February 11, 2009 (boomark / email).