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Questions Elena Kagan has already answered

Supreme Court nominee Elena Kagan lacks a paper trail. But her Senate confirmation hearing last year for solicitor general offers a preview of what's to come.

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She is the first woman to serve in two of the most exalted jobs in law – as dean of Harvard Law School and as US solicitor general, the government’s lawyer at the Supreme Court. She is a highly regarded scholar of the First Amendment and administrative law. She is by most accounts smart, charming, and a beloved teacher.

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While it is true that she’s never been a judge or litigated a trial to verdict, she has demonstrated in her six arguments at the high court a deep understanding of constitutional law and an apparent comfort level in her discourse with the justices.

The real question isn’t can she do the job. Rather, it is what will she do once she’s in the job. As Kagan herself recognized in her 1995 essay, the confirmation hearing process is unlikely to answer that second question unless the nominee herself decides to answer it.

In February 2009, Kagan appeared before the same Senate Judiciary Committee she’ll face this summer. In 2009, the issue was whether she should be confirmed as solicitor general. Nonetheless, the hearing transcript offers a preview of the likely tone and content of her Supreme Court confirmation hearings. It also offers a portrait of Elena Kagan painted in her own words.

Here are some excerpts:

Kagan on moral injustice in US society:
“I view as unjust the exclusion of individuals from basic economic, civic, and political opportunities of our society on the basis of race, nationality, sex, religion, and sexual orientation.”

On wisdom:
“One of the things I would hope to bring to the job [as solicitor general] is … not just the study I have made of constitutional and public law, but a kind of wisdom and judgment, a kind of understanding of how to separate the truly important from the spurious.”

On how she’ll overcome her lack of courtroom experience:
“When you get up to that podium at the Supreme Court, the question is much less how many times have you been there before than what do you bring up with you. And I think I bring up some of the right things. I think I bring up a lifetime of learning and study of the law, and particularly of the constitutional and administrative law issues that form the core of the court’s docket. I think I bring up some of the communication skills that have made me – I am just going to say it – a famously excellent teacher.”

On humility:
“One of the good things about me is that I know what I do not know and that I figure out how to learn it when I need to learn it.”

On clerking for Justice Thurgood Marshall and being asked to write memos attempting to channel her boss’s legal conclusions and high court strategy:
“I was a 27-year-old pipsqueak, and I was working for an 80-year-old giant in the law and a person who – let me be frank – had very strong jurisprudential and legal views. He knew what he thought about most issues. And for better or for worse, he was not really interested in engaging with his clerks on first principles. And he was asking us … to channel him and to think about what cases he would want the court to decide.”

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