Kagan on Going from Obama’s Solicitor to Supreme Court Justice: ‘Sometimes I Think the Job Doesn’t Really Change at All’

Terence P. Jeffrey | April 16, 2012 | 1:21pm EDT
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President Barack Obama and then-Solicitor General Elena Kagan, with Vice President Joe Biden, at the White House on May 10, 2012, when Obama nominated Kagan to the Supreme Court. (AP Photo/Susan Walsh)

(CNSNews.com) - Describing her move from serving as President Barack Obama's solicitor general to serving on the Supreme Court, Justice Elena Kagan said last week that “sometimes I think that the job doesn’t really change at all.”

As solicitor general, Kagan’s job was to advocate the Obama administration’s position in cases brought to the Supreme Court. As a justice, Kagan's job is to judge cases brought to the Supreme Court.

“So, sometimes I think that the job doesn’t really change at all--that as solicitor general my life was spent trying to persuade 9 people and now it’s just trying to persuade 8 people,” said Kagan.

Kagan made the remark at the Newseum in Washington, D.C., at a forum held there on Wednesday to celebrate the 30th Anniversary of the nomination of retired Justice Sandra Day O’Connor. (O’Connor became the first woman to serve on the Supreme Court in 1982 after she was nominated by President Ronald Reagan and confirmed by the Senate.) Kagan spoke at the forum on a panel that included O’Connor and fellow justices Ruth Bader Ginsburg and Sonia Sotomayor.

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Newseum CEO James C. Duff, who formerly served as a counselor and administrative assistant to the late Chief Justice William Rehnquist and as director of the Administrative Office of the U.S. Courts, moderated the panel.

At one point in the discussion, Duff asked Kagan, who has served a term and a half on the high court, if there were “still challenges” for her in adjusting to the job.

“Oh, every day is a challenge,” said Kagan. “But, you know, for me, I had never been a judge before, and just figuring out the mechanics of the job--you know, I have these four clerks, what do I do with them? What is the best process for drafting an opinion? When do I read the briefs? Do I read them the day before, the week before?

“So, all those things which I think most of my colleagues have just sort of figured what processes worked for them—I was very much last year, and continuing, to sort of do trial and error and experiment a little bit and figure out what works for me,” said Kagan.

Duff then asked Kagan: “[S]erving as solicitor general, did you find that helpful and useful?”

“Yeah, hugely helpful,” said Kagan.

“You know, because you’re just kind of looking at the court from somewhat different vantage point, but really spending all your time thinking about those 9 people and what they are doing,” said Kagan.

“So, sometimes I think that the job doesn’t really change at all,” said Kagan, “that as solicitor general my life was spent trying to persuade 9 people and now it’s just trying to persuade 8 people.”

President-elect Barack Obama announced on Jan. 5, 2009 that he would nominate Kagan to be solicitor general. The Senate confirmed Kagan on March 19, 2009. Prior to becoming solicitor general, Kagan was dean of Harvard Law School. From 1995-99, she had worked in the Clinton White House.

Kagan served as the Obama administration’s solicitor general during the time the Patient Protection and Affordable Care Act—AKA Obamacare—was proposed in Congress, debated, enacted and challenged by lawsuits in federal court.

A series of emails that CNSNews.com secured from the Justice Department after filing a Freedom of Information Act request (and then a lawsuit) revealed that Kagan had some interest in the Obamacare legislation while she was serving as Obama’s solicitor general.

On Oct. 13, 2009, when the Senate Finance Committee voted 14-9 to send its version of the legislation to the Senate floor, Kagan’s top deputy Neal Katyal sent her an email to let her know that Republican Sen. Olympia Snowe of Maine had voted for the bill in the committee. “[W]e just got snowe on health care,” Katyal wrote Kagan.

Four months later, on Jan. 8, 2010--after Obamacare had passed in the Senate and after Florida and other states had indicated they might file suit against the bill if it were enacted—Katyal received an email from Brian Hauck in the office of Associate Attorney General Tom Perrellli. Hauck said in that email: “Tom wants to put together a group to get thinking about how to defend against inevitable challenges to the health care proposals that are pending, and hoped that OSG could participate. Could you figure out the right person or people for that? More the merrier. He is hoping to meet next week if we can.”

Katyal emailed back to Hauck: “Absolutely right on. Let’s crush them. I’ll speak with Elena and designate someone.”

Katyal then forwarded Hauck’s email to Kagan. “I am happy to do this if you are ok with it,” he said to his boss.

“You should do it,” Kagan told Katyal in a return email—thus, assigning her top deputy to handle the preparation for the anticipated challenges to Obamacare.

Katyal then emailed back to the associate attorney general’s office: “Brian, Elena would definitely like OSG to be involved in this set of issues. I will handle this myself, along with an Assistant from my office, [name redacted] and will bring Elena in as needed.”

On March 21, 2010, a little more than two months after Kagan assigned Katyal to handle preparations for the anticipated challenges to Obamacare, the bill came up for a final vote in the House of Representatives. That day, Kagan expressed her enthusiasm about its anticipated passage in an email exchange with Lawrence Tribe, the famed Supreme Court litigator who was then--like Kagan--working in Obama’s Justice Department.

“[F]ingers and toes crossed today,” Tribe said in the subject line of an email to Kagan.

“I hear they have the votes, Larry!!” Kagan responded. “Simply amazing.”

Two days later, President Obama signed the bill. That same day, Florida (joined by 12 other states) and Virginia filed suit against it in federal court.

On May 10, 2010, seven weeks after these suits were filed, Obama nominated Kagan to the Supreme Court. After Obama nominated her to the court, Kagan recused herself from her duties as solicitor general. Katyal, the deputy Kagan had appointed to handle the anticipated challenges to the health-care legislation, went on to to defend the legislation in multiple federal appeals courts.

Last month, Kagan sat on the Supreme Court when it heard oral arguments in the cases challenging the constitutionality of Obamacare. The court is expected to issue its rulings on the challenges to Obamacare in June.

When the Senate Judiciary Committee was considering Kagan’s nomination to the Supreme Court, she filled out a questionnaire for the committee in which she said she would “look to the letter and spirit of … 28 USC 455” in determining when to recuse herself from cases that would come before her as a justice.

28 USC 455 says a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned” or anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”

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