WASHINGTON, May 18, 2010 -- Nearly a month before Justice John Paul Stevens announced his retirement from the Supreme Court, White House Counsel Bob Bauer called Solicitor General Elena Kagan to tell her that the president wished to consider her for a possible Supreme Court vacancy.
Kagan told Congress today in her responses to an official questionnaire that Bauer called on March 5. In the following weeks she met with several members of the White House staff, including David Axelrod and Valerie Jarrett. Ultimately she met with both the Vice President and President Obama, who announced her nomination on May 10.
Kagan's 202-page response to the Senate questionnaire includes hundreds of pages of attachments -- including stories she wrote for the "Daily Princetonian" in college -- and reveals some new information about her personal, professional and political life.
While she doesn't bring up her objection to the military's "don't ask, don't tell" policy banning openly gay members from serving in the armed forces, she explains actions she took as dean of Harvard Law School to ban the military from recruiting students in the school's career center, and includes e-mail sent to the school community on the topic.
In the questionnaire she says she signed a "friend of the court" brief, filed with the Supreme Court, arguing that federal law "did not require universities to exempt the military from generally applicable anti-discrimination rules governing employers." She points out that the Supreme Court unanimously rejected the claim.
Kagan also mentions that she joined a Statement of Law Deans in criticizing remarks made by the Bush Administration's Deputy Assistant Secretary of Defense, Charles Stimson, regarding legal representation of detainees at Guantanamo. She points out that she signed a letter to Sen. Patrick Leahy, D-Vermont, in 2005 opposing an amendment written by Sen. Lindsey Graham, R-South Carolina, that would have stripped the federal courts of jurisdiction to hear challenges from detainees at Guantanamo Bay, Cuba.
Some Republicans have said that Kagan , if confirmed, would be faced with having to recuse herself from several cases coming before the Court in her first few years because she has served as Obama's Solicitor General. In the questionnaire Kagan confirms, "I would recuse in all matters for which I was counsel of record."
Kagan Promises to Recuse Herself from Cases Involving Conflicts
Kagan writes that she will "look to the letter and spirit" of the non-binding judicial code of ethics and consult with her colleagues in the event of any conflicts of interest arise during her term.
White House officials have downplayed the issue, saying that Kagan would only have to recuse herself from about 15 cases in her first two years.
Kagan lists groups she has supported over the years, including Equal Justice Works -- a group that promotes public-interest law programs at law schools and firms across the country -- and the National Partnership for Women and Families, which says on its website that it "promotes fairness in the work place, reproductive health and rights, access to quality affordable health care, and policies that help women and meet the dual demands of work and home."
She also mentions her service as a member of the Research Advisory Council of Goldman Sachs from 2005 to 2008.
Kagan lists pages of academic writings and speeches she has given over the years and reveals that she recused herself from three district court cases involving warrants to unseal wiretap and search warrants pertaining to former New York Governor Eliot Spitzer, "because of my personal friendship" with Spitzer, a classmate of here at Princeton and Harvard Law School.
Today is the third time Kagan has submitted a questionnaire to the Senate Judiciary Committee detailing her personal and professional history. She submitted her first questionnaire in 1999 after President Clinton nominated her to a seat on the federal bench, but the nomination was blocked by Senate Republicans. Last year, she filled out a similar questionnaire after President Obama named her as the country's first female solicitor general.
Each questionnaire is different depending on the job sought and the candidate's professional background. The questions are negotiated between the majority and minority committee members who decided at the beginning of this Congress no longer to ask a candidate his or her marital status. The Committee has also dropped a question regarding health status.
The lengthy questionnaires -- which can force judicial nominees to dig through years of files and mountains of information -- are a familiar rite of passage that can pose hurdles to landing a spot on the bench.
Senate Questionnaire a Rite of Passage for Nominees
In 2005, Harriet Miers, President George W. Bush's first nominee to replace Justice Sandra Day O'Connor on the Supreme Court, was famously blasted for "incomplete" and unspecific responses to the Senate Judiciary Committee questionnaire. She withdrew from the process before supplementing her answers.
More recently, President Obama's federal appeals court nominee Goodwin Liu sparked a frenzy on Capitol Hill after he failed to provide a complete record of his speeches and writings.
"At best, this nominee's extraordinary disregard for the Committee's constitutional role demonstrates incompetence; at worse, it creates the impression that he knowingly attempted to hide his most controversial work from the Committee," wrote Sen. Jeff Sessions, R-Alabama, the ranking GOP member at the time.
Liu later apologized to the committee and reiterated his intention to be transparent.
Kagan's questionnaires, past and present, do provide a glimpse of who she is outside of her public resume.
In 1999 Kagan was asked about her health, which she reported to be "excellent" despite a minor thyroid problem, two benign breast biopsies and a deviated septum.
Her politics are sprinkled throughout her questionnaires. She reveals that she once worked for the Michael Dukakis 1988 presidential campaign, preparing responses to attacks on his record. She outlines at length the work she did in the Clinton administration from 1995-1999.
"Among the issues to which I devoted the most time were welfare reform and campaign finance reform. I also provided constitutional advice, in a variety of contexts, on these and other issues, including separation of powers, governmental privileges, freedom of speech , and church-state relations. One of the projects to which I devoted substantial time was a set of guidelines issued by the President on religious exercise and expression in the federal workplace."
She also hints that her work in the Executive branch and in Congress would be beneficial if she were ever to serve as a judge. "I know a fair amount about both legislative and administrative processes; this knowledge, combined with my academic background and litigation training, will serve me well in considering the constitutional , statutory and regulatory issues that form the core of the DC Circuit's caseload."
In a discussion regarding her academic work she tells the committee that she thought her scholarly work would be helpful if she were ever to become a judge: "I believe the doctrinal basis of my scholarship makes it helpful to judges and lawyers, and that the often intricate legal analysis in the work comes close (or at any rate, as close as scholarship can) to the practice of appellate judging."