The Volokh Conspiracy

[Jim Lindgren, January 5, 2009 at 12:19pm] Trackbacks

Is Elena Kagan's Moving to Solicitor General a Step Up or a Step Down?

Orin notes that Elena Kagan is becoming SG.

Some people might try to leverage a high government position into an elite deanship. Kagan is moving the opposite way.

Even though Kagan has been a terrific Harvard dean -- and has shaken up the law school world more generally -- she is likely to have more influence as SG than if she served an additional five years as a dean or university president.

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Guest101:

It's certainly a further step along the road to a SCOTUS nomination, so if that's what she has in mind it seems a wise move.

1.5.2009 12:37pm

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Patrick216:

Yeah, I think she's definitely eyeing SCOTUS. She tried for the DC Circuit in the late 1990s and got stymied in the Senate, which is why she ended up as HLS dean.

As for what a great dean she's been, I actually agreed with that assessment until she eliminated grades and required students to do pro bono work (i.e., staff various liberal interest group projects at the law school), both of which I think will injure the law school in the long run.

1.5.2009 12:44pm

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DNL (mail):

(a) It's a step to SCOTUS or other judgeship.

(b) The weird prestige hierarchy stuff is ... weird. Cabinet > Senator > Governor, which makes no sense facially. Even if you think Senator is a better job because you have better job stability, it does not follow that you'd leave that for a crappy Cabinet position like Secretary of the Interior.

1.5.2009 2:19pm

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Cornellian (mail):

It's a good step for her, she needs to buff up the advocacy component of her resume in order to be a credible SCOTUS nominee if and when a vacancy arises.

1.5.2009 2:45pm

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Dave N (mail):

DNL,

I am not sure that it is always Cabinet > Senator > Governor.

Mel Martinez left the Cabinet to become a U.S. Senator, as did Robert F. Kennedy. More significantly, in recent years at least three sitting U.S. Senators ran for Governor (Dirk Kempthorne of Idaho, Frank Murkowski of Alaska, and Jon Corzine of New Jersey).

While President-elect Obama has chosen two incumbent Senators for his cabinet (not to mention his own Senate seat and Vice President-elect Biden's), the only other incumbent Senator I can think of who went to a Presidential cabinet in recent years was John Ashcroft, who had just lost his Senate seat in the 2000 election.

1.5.2009 2:52pm

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steve lubet (mail):

Lloyd Bentsen went from the Senate to Secretary of the Treasury.

1.5.2009 3:38pm

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debrazza:

I should do a search of the site, but I don't remember a question of "influential" qualities of a SG at issue with Ted Olson was nominated. Aside from being at OLC in the 80's, Olson, spent most of the intervening years as pretty much a partisan. I think Clement was a very credible choice for SG and I Kagan is probably better qualified than Clement.

1.5.2009 3:43pm

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The Cabbage (mail):

I suppose this isn't something that factors into the minds of the hyper-ambitious, but job of SG seems like it would be a lot more fun than Dean/AG/White House Counsel/Secretary of Anything.

1.5.2009 4:51pm

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RowerinVa (mail):

The SG's position requires a rare combination of legal-analysis brilliance, management skill vis the small but fiercely bright and willful corps of OSG lawyers and staff, and interagency-negotiation skill vis the agency and intra-DOJ components that are effectively clients of OSG. Being a partner and practice group head, as Clement was, is good training for this (although Clement hadn't done it for long by the time he was first installed). Being a law school dean provides some good training for this but is vastly different in many respects, and doing that deanship outside the beltway might be a disadvantage.

Kagan will need intellectual brilliance, managerial skill, and the ability to keep her own ego in check, and will have to learn a great deal on the job. I haven't observed her much but she has the reputation of one who could pull this off. Let's hope she does.

I'm sure that burnishing a SCOTUS resume is part of her thinking in seeking this job; however, she's too smart to think that a SCOTUS nomination is anything but a remote possibility - events tend to overtake people's planning on that score. Just ask any number of DC and 4th Cir judges from the past eight years. So she must want the job on its own merits.

1.5.2009 4:54pm

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Dave N (mail):

Steve Lubet,

Thanks. I had forgotten about Senator Bentsen.

1.5.2009 5:27pm

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tp (mail):

Kagan's selection will be a test of how far apart the academic side of the legal profession has now drifted from the practicing side of the legal profession. You don't get tenure by writing articles about appellate procedure, for example, but knowing that stuff is important if you're SG. I am encouraged by her intelligence but a bit concerned by her lack of litigation experience.

1.6.2009 8:33am

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debrazza:

The more I think about it, the more I think that the best choice for SG should be Richard Lazarus at Georgetown. He has already served as an Asst. SG and the guy is absolutely brilliant and is the chair of Georgetown's Supreme Court Institute.

1.6.2009 9:53am

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PLR:

Just what the world needs, more Kagans referred to in the press.

1.6.2009 10:56am

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