President Barack Obama today nominated Elena Kagan to replace Justice John Paul Stevens on the U.S. Supreme Court. Stevens has a reputation for making employee-friendly decisions in cases that have reached the high court, but most employers don’t have much familiarity with Kagan or her views on employment-related issues.
So how would the confirmation of Kagan change the Supreme Court’s composition and the world of employment law? Frankly, there’s not much information to guide this inquiry. Kagan has never been a judge and is therefore somewhat of an unknown quantity. While I can’t promise an accurate prediction of Kagan’s judicial tendencies, I can promise to equip you with just enough information about her to impress your colleagues at the next cocktail party if the topic of Supreme Court nominations should arise.
Kagan was born in New York in 1960. She earned a bachelor’s degree, summa cum laude, from Princeton University in 1981 and a master’s degree from Oxford University at Worcester College in 1983. She then attended Harvard Law School, graduating magna cum laude in 1986. After graduating from law school, Kagan clerked for U.S. Supreme Court Justice Thurgood Marshall. Kagan launched her legal career as an associate attorney at a prominent Washington, D.C., law firm but soon joined the faculty of the University of Chicago Law School. During the Clinton administration, she served as associate White House counsel. She later taught at Harvard Law School and became the first female dean of the law school in 2003. In 2009, she resigned the deanship to become the nation’s first female solicitor general.
I became familiar with Kagan and her impressive qualities while I was a student at Harvard Law School. I use the word “familiar” loosely, as I never took any of her courses and graduated just before her deanship. I did, however, get to hear her speak on a few occasions, and I’ve been apprised of her achievements as dean through periodic e-mail updates sent to alumni. Kagan expresses her views with great skill — but without the pomposity that often comes along with a superb intellect. Like many influential people, she exhibits courage, diplomacy, and vision.
Throughout the Harvard Law School community, Kagan is widely regarded as decisive, dedicated, fair-minded, and brilliant. Her unique combination of skills earned her the near-universal respect of students and colleagues. As law school dean, she quickly gained a reputation as an effective leader with good judgment and an open demeanor. By all accounts, she made tremendous progress toward uniting the faction-ridden faculty and recruited many of the nation’s top legal minds, both liberal and conservative. In an effort to improve student satisfaction, Kagan revamped a century-old curriculum. She also supplied students with free coffee — a decision that certainly didn’t hurt her popularity.
All in all, Kagan is known for her ability to forge coalitions and spearhead change. But unlike many other Supreme Court nominees, Kagan hasn’t held a position that required her to take a public stand on some of the most controversial legal issues. Since she has never served as a judge, there are no written opinions we can scour for clues about her ideological leanings.
Perhaps the most controversial decision Kagan made was in 2005 when she briefly denied military recruiters access to Harvard Law School’s official recruitment process in protest of the government’s “don’t ask, don’t tell” policy. She made this decision on the basis that the government’s refusal to allow openly gay soldiers to serve in the military violated the law school’s antidiscrimination policy. This long-standing policy requires employers that participate in the school’s career placement process to sign a statement agreeing not to discriminate on various bases, including sexual orientation.
What can we glean from Kagan’s stance on “don’t ask, don’t tell”? Probably not much. The circumstances of the military recruitment situation were very unique and may not shed any light on the typical case affecting employers. While the viewpoints Kagan expressed during her deanship may not indicate much about her employment law predilections, the fact that she served as Harvard Law School’s top administrator could signal her capacity to relate to employers. In her role as dean, she faced many of the same workplace challenges employers encounter on a regular basis. She managed a group of strong personalities, bridged the gap between extreme ideological viewpoints, and made difficult hiring decisions — all for a greater institutional purpose. Kagan also has faced the scrutiny that often accompanies complex employment decisions. While many have praised her for expanding and strengthening the law school’s faculty, some have criticized her for not making gender and racial diversity more of a priority.
If and how Kagan’s past experiences will shape her future decisionmaking is anyone’s guess. In the end, all the speculation is just that — speculation. Indeed, even those responsible for making Supreme Court nominations sometimes get it wrong. As President Dwight D. Eisenhower quipped when asked if he had made any mistakes during his presidency, “Yes, two, and they are both sitting on the Supreme Court.”
Joanna R. Vilos is a 2003 graduate of Harvard Law School and an attorney with Holland & Hart LLP, practicing in the firm’s Cheyenne, Wyoming, office. She is an editor of Wyoming Employment Law Letter and a member of the Employers Counsel Network. She can be reached at (307) 778-4261.
Does anyone believe that some level of vetting/discussions w/the President has not occurred w/Ms. Kagan?
I cannot imagine a scenario where the President would nominate someone w/out having a crystal clear understanding on how his nominee would stand on certain issues to include card check, EFCA, healthcare reform, etc… all of which will have profound impacts on employers and I would argue, generally not positive impacts.
While we cannot glean from past legal decisions/opinions, we can glean from the nominator himself and his other nominations to date. To think she would not fit the same mold of other nominees/appts. (from supreme court to HHS, to DOL, to NLRB, etc.)I think is wishful thinking.
I would also not put too much stock in the Administrator role at Harvard… Harvard is quasi-public sector academia, not a true for profit enterprise that employs primarily blue-collar employees and deals with general private-sector employer issues that make up the vast majority of our employer groups.
So the message in this article is simply that all we know about this person is the same information we know when she was nominated and confirmed (on 3/19/09) as solicitor general. She is smart and an accomplished lawyer and law professor who can do team building. I assume that since she graduated with honors 3 times from academically challenging institutions of higher learning that she has the intelligence and skills to both hire competent clerks and do the research she needs to make informed decisions. She has stated that Thurgood Marshall is her professional hero so perhaps a review of his time as justice might have given us just a few clues.