Kerry May Tap Kagan For Court

When voters cast their ballots today they may help to bring Harvard Law School Dean Elena Kagan one step closer to securing a seat on the Supreme Court.

Kagan was included in New York Times and Washington Post lists of possible candidates for a John Kerry appointment to the next open seat. If President Bush is re-elected, the papers speculated that he might appoint Washington lawyer Miguel A. Estrada, former Solicitor General Theodore B. Olson or White House Counsel Alberto Gonzales.

After a decade without a single vacancy opening up on the Court and at least two seats likely to open up in the next four years, the national media has speculated that either Kerry or Bush could have the chance to greatly impact the composition of the Court.

But Kagan was wary of making a premature commitment to leaving her position at the Law School in an interview with The Crimson yesterday.

“I wouldn’t hold your breath,” Kagan said. “A lot has to happen before I would have to make that decision.”

Kagan said she was “flattered and amused” by the articles.

And while she did not say that she would decline the Court position if it were offered to her, she did emphasize her dedication to the Law School. “I’m happy just where I am,” Kagan said.

Other candidates on the Kerry short-list compiled by The Times and The Post were Kathleen M. Sullivan, former dean of Stanford Law School; Sonia Sotomayor, a federal appeals court judge in New York; and David S. Tatel and Merrick Garland, both federal appeals court judges in Washington.

According to the lists of potential appointees, Kagan, 48, is among the youngest candidates for a spot on the Court. The average age of the potential appointees is about 54 years old, while the average age of current sitting justices is about 65.

Kagan, who has never argued a case before the Supreme Court, said that she found these short-lists “a little bit crazy,” adding that they lack “much serious thought.”

After graduating from HLS in 1986, Kagan clerked for former U.S. Supreme Court Justice Thurgood Marshall and practiced with the Washington firm that handled former President Clinton’s impeachment defense.

She served from 1995 to 1999 in a variety of roles in the executive branch of the Clinton White House, including as deputy director of the Domestic Policy Council. In 1996, Kagan worked closely with Clinton to draft the settlement levelled against tobacco corporations in response to legislation introduced by Sen. John McCain, R-Ariz.

Despite this cross-aisle experience, Kagan is not new to partisan battles. When Clinton nominated Kagan for a spot as a judge on the D.C. Circuit in 1999—one of the most prestigious judgeships—the Republican-controlled Senate allowed her nomination to expire.

Kagan, who specializes in constitutional law and civil procedure, attributes the appearance of her name on Kerry’s rumored short lists to her status as a “failed judicial nominee.”

“It’s definitely what got me on these lists and into the paper,” she quipped.

Although Kagan has a political background with the Democrats, she says she has not done any political campaigning “whatsoever” for today’s election.

Her colleagues offered votes of confidence in her yesterday.

Story Professor of Law Daniel J. Meltzer ’72 said he had read of Kagan’s rumored appointment under a Kerry administration, and said he thought “she would be superb and sorely missed here.”

Loeb University Professor Laurence H. Tribe ’62 wrote in an e-mail yesterday that he had “no doubt that Elena Kagan would make a superb Supreme Court Justice and she would be easily confirmed.” But Tribe added that he hoped a decision would not come in haste.

“I hope both for Harvard’s sake and for the sake of the good health of whoever would have to leave the Court to create a vacancy that we have at least a breathing spell before President Kerry had to nominate someone to the Court,” said Tribe, who, like Kagan, specializes in constitutional law and who has been suggested for Supreme Court nomination.

—Staff writer Lauren A. E. Schuker can be reached at schuker@fas.harvard.edu.