Monday, January 05, 2009

Elena Kagan to Serve as Solicitor General

Congratulations to Elena Kagan -- currently dean of Harvard Law School (and teacher of my administrative law class) -- on being named as the nominee for Solicitor General. I'm reminded of the previous Harvard Law professors who turned down the chance to be nominated as Solicitor General -- Felix Frankfurter turned down Roosevelt, and Paul Freund turned down Kennedy. In fact, I seem to recall reading at one point that Frankfurter (by then on the Supreme Court) advised Freund that a Harvard Law professor should view any government position except the Supreme Court as a demotion. Elena (like Charles Fried) apparently doesn't share that rather self-serving view.

UPDATE: Despite Elena Kagan's lack of appellate experience, I would anticipate -- based on her class -- that she would be superb. She was one of the top two or three professors I had in law school. Unlike most other professors, she taught in a pure Socratic style: lots of random questioning of students, with no opportunity for students to pass.

No matter what a student said (ranging from tough and highly perceptive questions to complete irrelevancies), or whether the student was prepared to say anything at all, Elena Kagan had an unbelievable ability to take the student's questions or answers and then weave it all into a productive classroom discussion. Granted, the Supreme Court's Justices are a bit more prepared and intense than the typical classroom, but I'd guess that Elena Kagan would be quite capable at taking the Justices' questions and, on the fly, weaving her answer into a skillful presentation of whatever argument she was presenting. And incidentally, it was John Roberts' skill at that same thing that made various Supreme Court Justices say (prior to his nomination) that he was the best Supreme Court litigator in the country.


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