Law Faculty Played Key Role in Vetting of Justice Kagan

During the recent confirmation process for U.S. Supreme Court Justice Elena Kagan, a group of 14 Washington University law professors were working behind the scenes to examine her written works. Led by Professor Gregory Magarian, the group participated in an ABA project to examine thousands of pages penned by Kagan during her career. The ABA had asked the law school to form one of three reading groups charged with helping to qualify its recommendation for Kagan to the U.S. Senate for confirmation.

An expert in constitutional law, Magarian selected the team based on their wide range of subject-matter expertise. The readers were tasked with commenting on Kagan’s professional competence, integrity, and temperament. “To a lesser extent, we described what her writings might indicate about her philosophy or approach, but not in an evaluative way,” Magarian says.

After the group wrote its memoranda, Magarian drafted an extensive executive summary of the findings. Several hundred pages consisting of the summative memorandum and accompanying memos went to the ABA, where they joined reports from other groups, such as practitioners, to be combined with the association’s internal work on the subject. The result: the ABA’s recommendation of “well qualified” by vote of the Standing Committee on the Federal Judiciary. At the conclusion of the process, Kagan was confirmed by the Senate on August 5 by a vote of 63-37 and sworn in on August 7.

For Magarian, who clerked for Justice John Paul Stevens, this history-making assignment to be part of the process to replace Stevens took on an added layer of importance. “I had my own personal investment in this,” Magarian says. “I really felt I had a stake in doing it right and making sure that we held up our end of this process as well as we could.”

The group had just 30 days to pore over many years’ worth of Kagan’s articles, briefs, press releases, and e-mails. But unlike that of the typical Supreme Court nominee, Kagan’s body of work contained no judicial opinions. “For the first time in almost 40 years, we had a Supreme Court nominee who hadn’t had any judicial experience,” Magarian says.

Much of Kagan’s writing was done while working in the administrations of Presidents Bill Clinton and Barack Obama and while she was dean of Harvard Law School. That made it difficult to discern Kagan’s true “voice” in much of her written work, he said. But it quickly became clear to Magarian and his group that Kagan was “extraordinarily smart” and worthy of the nomination. Had the group found significant reason to questions Kagan’s professional qualifications, her nomination likely would have been withdrawn.

“I’m emphatically not saying, however, that our negative review alone would have caused the withdrawal,” Magarian says. “Rather, if we had reached a negative conclusion, I suspect that many other commentators, the ABA’s internal reviewers and, for that matter, staffers in the Senate would have been seeing the problems at the same time.”

While the Senate was not privy to the complete memorandums produced by any of the vetting groups, the ABA’s recommendation of Kagan as “highly qualified” included some of their conclusions.“The ABA seemed very pleased with what we did, so I think it’s a credit to everybody who worked on it,” Magarian says.

In addition to Magarian, the Washington University contingent included Professors Scott Baker, Kathleen Brickey, Marion Crain, John Drobak, D. Bruce LaPierre, Stephen Legomsky, Ronald Levin, Mae Quinn, Neil Richards, Laura Rosenbury, Hillary Sale, Melissa Waters, and Peter Wiedenbeck.