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Legal Times

12 January 2009

SG Pick has One Glaring Gap on Resume
Legal Times

SG Pick Has One Glaring Gap on Resume'
By Tony Mauro

Top-drawer legal practices have been built, enviable careers have been charted, and much ink has been spilt, based on a proposition that is rarely disputed: arguing before the Supreme Court ain’t for amateurs.

The justices themselves have fueled this perception by turning oral argument into an extreme sport that subjects the advocate to a barrage of questions—each of which must be answered strategically, accurately, and, most of all, immediately. In their body language and their rulings, the justices often make it clear that they are happier when the target of their fusillade is a familiar face.

If confirmed, Elena Kagan will soon walk into this club as solicitor general, without a single Supreme Court oral argument to point to in her past—or, it appears, any other appellate experience. President-elect Barack Obama said last week he would nominate the Harvard Law School president to the position.

Suddenly, that glaring gap in her résumé seems not to matter at all to the specialists, who have uniformly greeted her nomination with high praise.

“Appellate advocacy is only one of the talents needed,” says Harvard Law School professor Laurence Tribe, a veteran advocate.

“I don’t think it’s a major factor,” says Andrew Frey of Mayer Brown, who has argued 64 times before the high court—more than any other lawyer currently in private practice.

And former Solicitor General Charles Fried, now a Harvard colleague of Kagan’s, exclaims “Nonsense!” when asked if Kagan’s lack of appellate experience is a deficit. “Anyone who tells you it’s a problem is trying to maintain a guild lock on Supreme Court arguments.”

Kagan, 48, clerked 20 years ago for the late Justice Thurgood Marshall, and since then has taught law at both Harvard and the University of Chicago, and worked in the Clinton White House. She became dean of Harvard Law in 2003. Kagan declined comment, but Legal Times confirmed that she has not argued before any other appellate court. She did represent parties in trial courts when she was an associate at Williams & Connolly in D.C. from 1989 to 1991.

Fried himself had not argued before becoming deputy solicitor general in February 1985—a few months before he was elevated and confirmed as solicitor general. It wasn’t an issue then, and he was not fazed by the prospect of making the first appellate argument of his life before the Supreme Court.

“I’d watched it done, and you have a wonderful staff,” Fried recalls. But his first arguments were not a success, according to The Tenth Justice, Lincoln Caplan’s 1987 book on the solicitor general’s office. Fried showed an “odd insensitivity” to the impact of his words on the Court, Caplan wrote.

According to records on the Web site Oyez.org, Kenneth Starr had not argued any high court cases before becoming President George H.W. Bush’s solicitor general in May 1989. Neither had Robert Bork, President Richard Nixon’s SG from 1973 to 1977, nor Wade McCree, President Jimmy Carter’s solicitor general from 1977 to 1981.

A HOT BENCH

In fact, says Georgetown University law professor Richard Lazarus—currently visiting at Harvard—the appointment of Kagan represents a “return to the mold” of earlier solicitors general, most of whom arrived from academia or the bench with little or no appellate experience.

It was not until Seth Waxman’s appointment by President Bill Clinton in 1997, Lazarus says, that a new trend began of drawing SGs from the ranks of private firms, where they had honed litigating or appellate skills. Waxman had argued six high court cases and more before appeals courts. His successors, Theodore Olson, Paul Clement, and current SG Gregory Garre, also worked previously as appellate experts, not academics.

But the Waxman trend also tracks—and perhaps responds to—a new era on the Supreme Court itself, of a searingly “hot bench” with eight very active, combative questioners, as opposed to past courts where as many as three or four justices were almost as silent as Justice Clarence Thomas is now. That intensity has helped promote the notion that a new level of skill and specialization is needed to conquer the modern-day Court. The Court that will greet Kagan is not the same one that would have given a scholarly solicitor general of an earlier era more time to learn the ropes.

That’s where the rest of Kagan’s background, as well as the nature of the office, will help, supporters say. “If you took someone off the street and made her solicitor general, it would be a terrible idea,” says Sidley Austin’s Carter Phillips, who has 62 arguments under his belt.

But Kagan is not just any lawyer,  Phillips said, and she’ll excel because of her other experiences and the fact that she is backed by an office “filled with some of the most expert advocates in the country.”

“You’re immersed in a community that lives and breathes the Supreme Court,” says Frey, a veteran of the office.

WAIT TO ARGUE

In an earlier era, some SGs left the arguing to their expert staff, but the modern expectation is that the SG will argue frequently—and take on the most important and high-profile cases, to signal to the justices that the government takes them very seriously.

Still, Frey says, “If I were her, I wouldn’t feel that I had to argue in February, March, and April” after she is sworn in. With the Court’s relatively small argument docket, her deputies and assistants who hunger for face time would be eager to pick up the slack.

She could also take advantage of an office custom that gives a first-time advocate a case that is either a sure winner or a sure loser. “It reduces the anxiety,” Frey explains.

Realistically, Frey says, Kagan’s first one or two arguments may be “below her potential.” But he predicts “she will quickly become an expert.”

Kagan will be aided too by her service 20 years ago as a law clerk to Justice Marshall, Frey says. A clerk’s year is an intense course in the ways of the justices. The fact that she has been dean of the law school that a majority of the justices attended—and still maintain contact with—also guarantees she is not an unfamiliar face.

But most of all, many say, Kagan’s brilliance and skills in teaching and leading Harvard will help her overcome any deficit in experience.

“She has spoken in public and engaged in public dialogue all of her life,” says Fried—including teaching in “some very large, tough classrooms.” He adds, “She gets it.”

Adds Lazarus: “She has shown an uncommon ability to herd cats,” a reference to her dealings with Harvard faculty members who can be every bit as challenging as justices. “She has the stature and wherewithal to say no.”

Tribe praises her ability to navigate Harvard’s “treacherous avenues” and says, “In 40 years, I haven’t seen anyone like her.”

Phillips is confident that Kagan’s lack of experience will soon fade as a question mark. “In January 2010, we’ll all look back and chuckle at this,” he says. “You’ll all be writing rave reviews about how great she is, how she has them wrapped around her little finger.” Phillips pauses and adds, “Well, maybe not that. That’s very difficult.”

Reprinted with permission from the January 12, 2009 edition of Legal Times © 2009 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

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