Kagan making cases in front of the Supreme Court...

Discussion in 'Politics & Religion' started by OPTIONAL777, May 15, 2010.

  1. WASHINGTON — Six times in the past nine months, Solicitor General Elena Kagan has come to the mahogany lectern in the hushed reverence of the Supreme Court to argue the government's case before the justices she now hopes to join soon.

    Her arguments have gone like this:

    "Well, Mr. Chief Justice, even if you are right, I think that we prevail."

    "We don't actually think that that's right, Justice Stevens."

    "I think, Justice Scalia, it's wrong."

    And so on.

    The justices have given Kagan an earful, too.

    "I don't think you really caught what I suggested," said John Paul Stevens.

    "I'm sorry, but that seems rather odd," said Chief Justice John Roberts.

    "I don't understand what you are saying," said Antonin Scalia.

    And so on.

    Oral arguments in the Supreme Court are something of a rarified mosh pit. Meticulously prepared lawyers often struggle to get out a few coherent sentences between the interruptions of justices who tend to be supremely confident that they know better.

    An intimidating setting for any lawyer, the venue was all the more daunting for Kagan because her courtroom experience before appearing before the justices was exactly nil.

    Yet "General Kagan," who skipped the government lawyer's traditional morning suit with long tails in favor of a standard dark suit, held her own and emerged to declare the experience "a great deal of fun." Kagan is the first woman to serve as solicitor general, the government's top lawyer at the Supreme Court.

    Kagan won one of the two cases that have been decided thus far, but those results have more to do with the strength of the cases she inherited than her persuasive abilities in a courtroom.

    "Very few people could do as well as she did with as little experience as she had in that job," said attorney David Cole, who argued against Kagan on one of her six cases. "One wouldn't know that she was not a seasoned advocate before the court."

    Kagan, who already knew most of the justices, has parried with them on matters of free speech, terrorism, executive power and more, with a style that was surprisingly conversational for someone so inexperienced.

    She mixed in a larger-than-usual dose of humor and showed herself unafraid to disagree with her questioners or to admit she didn't know something. She also was adept at slipping in well-placed compliments to those doing the grilling, referring to one of Scalia's past opinions as "brilliant," and telling Ruth Bader Ginsburg, "You said it better than I did, Justice Ginsburg."

    Court watchers are now scouring Kagan's courtroom transcripts for clues into how she might interact with fellow justices and handle future cases.

    Lincoln Caplan, author of the "The Tenth Justice: The Solicitor General and the Rule of Law," said recent accounts of Kagan's ability to combine humor, respect and responsiveness to the judges in her oral arguments "suggest that if she becomes a justice she's likely to be effective in developing working relationships with the other justices, and that's likely to be useful to her and justices who agree with her on the legal outcome of particular cases."

    Caplan cautioned, though, that oral arguments offer only clues – "nothing definitive."

    Kagan, who is 5-foot-3, began one case by rather dramatically turning a crank to lower the lectern after the court heard from her much-taller courtroom adversary. She drew some chuckles when she told the justices, "This may take some time."

    Justices tend to be a proper bunch, so it's not clear that they universally appreciate her informal style. Her toughest questioner has been Roberts, an accomplished Supreme Court advocate before he became a judge. He called one of Kagan's arguments "absolutely startling" and upbraided her when she committed a courtroom no-no, posing a question of her own. She immediately apologized.

    Yet Roberts also offered up some praise of Kagan's argument skills at a recent reception for lawyers who had been sworn into the Supreme Court bar.

    If nothing else, Kagan's courtroom appearances have been good preparation for summer hearings by the Senate Judiciary Committee on her nomination to the Supreme Court.

    "Anything that gets you in the mood for hostile questioning in front of a lot of people where there's a lot at stake is very good preparation," says Charles Fried, a former solicitor general and Republican who is a big fan of Kagan.

    Kagan's first case before the court was also her biggest, and she lost. The result of Citizens United v. Federal Election Commission was a sweeping reversal of campaign finance laws, vastly increasing the ability of businesses and unions to spend millions to influence elections for president and Congress.

    The case had been expected to go against the government from the beginning.

    Kagan, at one point in the argument in September, told Roberts, "If you are asking me, Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses, if it has to lose, the answer is yes."

    The argument was a tough one from the outset. Kagan stepped to the lectern and got out just three sentences before Scalia cut her off with a "wait, wait, wait, wait," and then challenged the premise of her first point.

    Kagan didn't back down, telling Scalia: "I will repeat what I said."

    Scalia shot back: "I don't understand what you're saying."

    Scalia, famously combative on the bench, later told National Public Radio with a chuckle that such back and forth is "what's supposed to happen, isn't it?"

    "The reason you ask the question is to see if there's a decent answer to it," he said, adding that Kagan had "stepped into the line of fire" by volunteering to argue the case.

    Floyd Abrams, who argued against Kagan on the case, said that "in trying circumstances, she carried herself with a dignity and power."

    "There were difficult passages, but I consider them the result of the substantive difficulty of her position, not any lack of the skill of an advocate," he said.

    Abrams said Kagan showed her rhetorical skills during oral arguments on another case in February, when she defended a law that bans groups from providing "material support" to foreign terrorist organizations.

    Summarizing the government's position, Kagan told the justices: "Hezbollah builds bombs. Hezbollah also builds homes. What Congress decided was, when you help Hezbollah build homes, you are also helping Hezbollah build bombs."

    "I just thought that answer was a quintessential example of summarizing an inevitably subtle position in a few lines," Abrams said.

    G. Alan DuBois, a public defender who argued against Kagan on another case, said her style was straightforward and "not that rhetorically flashy."

    "It was just sort of, 'Here's my position, and I'm sticking to it,'" he said. "You never would've guessed it was only her third or fourth argument."

    Michael Carvin, who argued against her on a business-related case, described Kagan as calm, professional and articulate, but also "cagey and evasive" when pressed on a point she didn't want to develop.

    Kagan says she prepares for her cases by working hard – then relaxing and going to the movies.

    When it's over, she goes to lunch with her principal deputy, Neal Katyal, for a hamburger and side salad. He treats for lunch when she's argued a case; she treats when it's Katyal who's been in the hot seat.

    Oral arguments, she told NPR in an interview in December, are "a little bit nerve-racking in the lead-up, but then as soon as you get up there to the podium, you're having a conversation with these nine fabulously smart, fabulously interesting people and it's a great deal of fun."

    After her first case, Kagan said she went back to the office and started second-guessing herself. An assistant sent her a quote from Robert Jackson, a former solicitor general-turned-Supreme Court justice, who said his best oral argument was always given "to his pillow the next evening."

    "That comforted me," Kagan said. "I thought if Justice Jackson gave the perfect argument only after the argument, then I was in good company."