Rabbi David Saperstein runs through a shopping list of superlatives on Elena Kagan—“self-evidently brilliant” and “steady, strategic and tactical”—before acknowledging that he doesn’t have much of a handle on what President Obama’s choice to fill a U.S. Supreme Court seat actually believes.
In the Jewish community Saperstein, the head of the Reform movement’s Religious Action Center, apparently is not alone.
Community reaction to Obama’s selection of Kagan, the U.S. solicitor general, is enthusiastic until officials consider what it is, exactly, she stands for.
Kagan, 50, has never been a judge—she would be the first Supreme Court justice without bench experience since 1974. It’s a biography the White House touts as refreshing, but also has the convenience of lacking a paper trail of opinions that could embarrass a nominee in Senate hearings.
“When someone’s a solicitor general, it is really difficult to know what is their own position and what is the position of the state they are charged to represent,” Saperstein said.
A similar murkiness haunts how Kagan handles her Jewishness—she has alluded to it, but has not explicitly stated it since her nomination.
Her interlocutors in the Jewish community say Kagan is Jewish savvy, but they are hard pressed to come up with her own beliefs.
The White House strategy going into Senate hearings appears to be blame whatever controversy trails her on her employer, on her client—on anyone but Kagan herself.
The first such controversy to emerge since Obama announced the nomination Monday was Kagan’s defense, as dean of Harvard University’s Law School, of the campus practice of banning military recruitment through the main career office (veterans were allowed to recruit independently) because of the military’s discriminatory hiring policies on gays.
Kagan inherited the policy when she became dean in 2003, but she was not shy about agreeing with it. When the Bush administration in 2004 threatened to withdraw funding, she rescinded the ban, but wrote to the student body, according to the authoritative SCOTUS Blog, of “how much I regret making this exception to our anti-discrimination policy. I believe the military’s discriminatory employment policy is deeply wrong—both unwise and unjust. And this wrong tears at the fabric of our own community by denying an opportunity to some of our students that other of our students have.”
Such stirring defenses are absent from White House materials that have emerged on the matter. Instead, the Obama administration is distributing an Op-Ed that appeared Tuesday in the conservative Wall Street Journal by her predecessor at Harvard Law, Robert Clark.
“As dean, Ms. Kagan basically followed a strategy toward military recruiting that was already in place,” Clark wrote, not mentioning her stated ideological investment in the matter.
Another debate pertains more closely to an issue that divides the Jewish community: federal funding for faith-based initiatives.
Kagan clerked for Thurgood Marshall in the late 1980s, and in a memorandum to the Supreme Court justice, she said there was no place for such funding.
In her Senate hearings last year for the solicitor general post, Kagan outright repudiated the position she had forcefully advanced in 1987.
It was “the dumbest thing I ever read,” she said. “I was a 27-year-old pipsqueak and I was working for an 80-year-old giant in the law and a person who—let us be frank—had very strong jurisprudential and legal views.”
Her defense was convenient—Marshall, of course, is long dead and unable to defend himself—and troubling to Saperstein, whose group joins the majority of Jewish organizations in opposing such funding.
“People aren’t quite sure what to make of that,” he said.
The Orthodox Union’s Washington director, Nathan Diament, on the other hand, knows just what to make of it—hay.
“As strong proponents of the ‘faith-based initiative,’ and appropriate government support for the work of religious organizations, we at the Orthodox Union find Ms. Kagan’s review and revision of her views encouraging,” he wrote on his blog Tuesday.
Saperstein noted that the Religious Action Center—along with other Jewish civil liberties groups, like the Anti-Defamation League and the American Jewish Committee—is preparing questions for Kagan to be submitted to the Senate Judiciary Committee. RAC is soliciting questions from the public as well at a Web site, AskElenaKagan.com.
These groups have welcomed the nomination; the National Council of Jewish Women has endorsed Obama’s choice to replace John Paul Stevens, who is retiring at the age of 90 after serving the Supreme Court for 35 years.
NCJW President Nancy Ratzan cited Kagan’s affirmation during her solicitor general confirmation hearings of Roe v. Wade as established law protecting a woman’s right to an abortion, and her defense of federal campaign funding restrictions as solicitor general before the Supreme Court—a case the government lost.
“She gave us clarity as a champion for civil rights,” Ratzan said of Kagan. “We think she’s going to be a stellar justice.”
Other groups say that whatever she argued as solicitor general—or whatever she said in seeking the job representing the U.S. government before the high court—might be seen more as reflecting the will of her boss, Obama, and is not necessarily a sign of how she would function as one of the nine most unfettered deciders in the land.
“There’s a lot we have to learn,” said Richard Foltin, the AJC’s director of national and legislative affairs, even after 15 years of interacting with Kagan dating to her days as a Clinton White House counsel on domestic policy.
Foltin and others who have dealt with Kagan say she is affable and easy to get along with, simultaneously self-deprecating and brimming with confidence. She accepts with equanimity the nickname “Shorty” that Marshall conferred upon her, and charmed her Senate interlocutors at her solicitor general confirmation hearings when she said that her strengths include “the communications skills that have made me—I’m just going to say it—a famously excellent teacher.”
In addition to his interactions with Kagan during her Clinton years, Foltin—a Harvard Law alumnus—was impressed as well by her ability as dean of the school to bring conservatives and liberals together.
“This is an incredibly smart attorney who is able to reach out to people, take in diverse perspectives and bring people together,” he said.
Obama cited Kagan’s outreach in announcing her nomination.
“At a time when many believed that the Harvard faculty had gotten a little one-sided in its viewpoint, she sought to recruit prominent conservative scholars and spur a healthy debate on campus,” he said.
Saperstein, who also recalls Kagan from her Clinton White House days, says she brings the same deep understanding of all sides of a debate to the Jewish community.
“She was quite aware of where there were differences—aid to education, government funding of religious institutions,” he said.
Kagan, whose nomination is believed to be secure—Republicans have said they are not likely to filibuster over it—would bring the number of Jews and women on the highest bench in the United States to three. That’s unprecedented in both cases. She would join Ruth Bader Ginsburg and Stephen Breyer as Jewish justices. Sonia Sotomayor, like Kagan a native New Yorker, is the third female justice.
Stephen Pease, whose book “The Golden Age of Jewish Achievement” chronicles disproportionate Jewish representation in the law, in academe and the arts, said a third Jewish justice was not remarkable. Kagan would be seen as getting the job on her merits: clerking to two famous judges, teaching at the University of Chicago, advising the Clinton White House, heading Harvard Law, and then as the administration’s second most important lawyer, all by the age of 50.
“She’s done some pretty incredible stuff fairly quickly in her career,” Pease said.
Despite Kagan’s familiarity with the Jewish community, there are few clues as to her Jewish preferences. Her late father was on the board of West End Synagogue, a Reconstructionist shul in Manhattan, where she grew up on the Upper West Side. She had a bat mitzvah at the synagogue and, according to a New York Times profile, argued with the rabbi—over what it’s not clear.
Like Obama, she is close to Abner Mikva, a former federal judge and a law professor at the University of Chicago. It’s not clear, however, whether she shared Mikva’s deep involvement in the Jewish community. During her years as a lecturer at the University of Chicago, from 1991 to 1995, she was not involved with the local federation.
The White House did not shy away from Kagan’s Jewishness in making the announcement, nor did it make her faith explicit. Invitees to the announcement included the usual array of representatives from Washington offices of national Jewish groups: the AJC, ADL, NCJW and RAC, along with the National Jewish Democratic Council and the Jewish Council for Public Affairs.
Both Kagan and Obama noted that her late parents were the “children of immigrants.”
“Elena is the granddaughter of immigrants whose mother was, for 20 years, a beloved public schoolteacher—as are her two brothers, who are here today,” Obama said.
Kagan added that “My parents’ lives and their memory remind me every day of the impact public service can have, and I pray every day that I live up to the example they set.”