January 6, 2009  ·  Lessig

Now that she won’t be my Dean, I am free to say the following. And I am inspired to say the following by my sense that there’s a misperception among some about exactly why Elena Kagan’s appointment is so important.

Everyone knows the Solicitor General is the government’s path to the Supreme Court. But some write as if the job is about arguing in the Supreme Court. That’s a mistake. No doubt, that’s a part, though historically the SG has argued a small percentage of the cases (sometimes as low as 1 or 2 a term).

Much more important is the policymaking function of the office. The SG must decide on the strategy for interacting with the Supreme Court. He or she must decide which issues to push, which to hold back, how to frame the issues, and how best to maintain the (deserved) reputation of the office as a principled expositor of the (administration’s view of the) law.

Having known Elena since I began teaching (she and I started together at Chicago), I can say that I can’t imagine a better choice for this job. Granted, she is not an oral advocate — though again, that’s not the job, and having seen her teach (always at the very top at Harvard and Chicago), I have no doubt she’ll be superb as an oral advocate.

But she knows the administration cold (after years in the Clinton administration, and many more years studying and teaching administrative law), and, more importantly (and extremely rare for an academic), she has an extraordinary ability to productively engage disagreement. That’s the real success from her time at Harvard (I used to think it was impossible to be loved as Dean of Harvard; Elena is loved by everyone). She is a straight talking, brilliant strategist and strong negotiator, who holds herself to insanely high standards. People see that and respect that — one bit to the key of her success.

As one reflects upon the fact that the most entrenched disagreements the Obama administration will face over the next 8 years will be with a conservative Court that doesn’t need to be reelected, it is quickly apparent that the role of the SG is going to be critical. On a list of many (if not all) fantastic appointments by Obama, this one is brilliant. Everyone is saying as much, but few, I think, recognize just how brilliant this is.

  • Ron

    “. . . the Obama administration will face over the next 8 years . . .”

    Oh, I sincerely hope that the “8 years” part is true.

  • Finite

    Any comments on the day’s appointments? http://news.cnet.com/8301-13578_3-10133425-38.html

  • http://blogs.umb.edu/eileenmcmahon Eileen McMahon

    Any ideas on who will take the Chief Information Officer spot? Also is this position appointed or does a someone apply for it?

  • Sergio

    Larry,

    I’m also wondering what do you think about the appointments.

  • http://ipswhatsup.blogspot.com goldenrail

    I’m glad to see your excitement about the SG appointments, but like Finite and Sergio, I’m wondering what your thoughts are on Perrelli and Ogden. I feel tricked. Do you feel betrayed?

  • http://www.artiajans.net/ Artı

    Having known Elena since I began teaching (she and I started together at Chicago), I can say that I can’t imagine a better choice for this job. Granted, she is not an oral advocate — though again, that’s not the job, and having seen her teach (always at the very top at Harvard and Chicago), I have no doubt she’ll be superb as an oral advocate.

  • http://tomshiro.org cshapiro

    My mom retired from the Solicitor General(‘SG’)'s office in the 1980s; she was the first female assistant SG hired there. I pinged her about this blog entry and got back:

    He’s right, from everything I’ve heard — also about the oral advocacy not being the major part of the job — in addition to his valid point, what I think is of as almost equal importance to the Supreme Court responsibilities is the control of lower court appellate litigation — by deciding which federal cases the government appeals from the federal district courts to the courts of appeals, the SG influences the development of the law across the board in the lower court (after all, the Supreme Court takes less than 150 cases a term). I considered adding this as a comment, but didn’t know if a comment on an attachment would work. Feel free to add it if you think it merits.

  • http://www.illinoisbusinessattorney.com/ David

    I think Elena Kagen will be a terrific addition to the Obama administration but I lament the loss for Harvard Law School. She has been a driving force at the law school and it will a different place without her.

  • Mark

    Obama had best take his best shot in years 1 and 2. He will be soundly defeated in 2012.