WASHINGTON — Six times in the past nine months, Solicitor General Elena Kagan has come to the mahogany lectern in the hushed reverence of the Supreme Court to argue the government’s case before the justices she now hopes to join soon.
Her arguments have gone like this:
“Well, Mr. Chief Justice, even if you are right, I think that we prevail.”
“We don’t actually think that that’s right, Justice Stevens.”
“I think, Justice Scalia, it’s wrong.”
And so on.
The justices have given Kagan an earful, too.
“I don’t think you really caught what I suggested,” said John Paul Stevens.
“I’m sorry, but that seems rather odd,” said Chief Justice John Roberts.
“I don’t understand what you are saying,” said Antonin Scalia.
And so on.
Oral arguments in the Supreme Court are something of a rarified mosh pit. Meticulously prepared lawyers often struggle to get out a few coherent sentences between the interruptions of the justices, who tend to be supremely confident that they know better.
An intimidating setting for any lawyer, the venue was all the more daunting for Kagan because her courtroom experience before appearing before the justices was exactly nil.
Yet “General Kagan,” who skipped the government lawyer’s traditional morning suit with long tails in favor of a standard dark suit, held her own and emerged to declare the experience “a great deal of fun.”
Kagan won one of the two cases that have been decided thus far, but those results have more to do with the strength of the cases she inherited than her persuasive abilities.
“Very few people could do as well as she did with as little experience as she had in that job,” said attorney David Cole, who argued against Kagan on one of her six cases. “One wouldn’t know that she was not a seasoned advocate before the court.”
Kagan, who already knew most of the justices, has parried with them on matters of free speech, terrorism, executive power and more, with a style that was conversational.
She mixed in a larger- than-usual dose of humor and showed herself unafraid to disagree with her questioners or to admit she didn’t know something. She also was adept at slipping in well-placed compliments to those doing the grilling, referring to one of Scalia’s past opinions as “brilliant,” and telling Ruth Bader Ginsburg, “You said it better than I did, Justice Ginsburg.”
Lincoln Caplan, author of the “The Tenth Justice: The Solicitor General and the Rule of Law,” said recent accounts of Kagan’s ability to combine humor, respect and responsiveness to the judges in her oral arguments “suggest that if she becomes a justice, she’s likely to be effective in developing working relationships with the other justices, and that’s likely to be useful to her and justices who agree with her on the legal outcome of particular cases.”
Kagan, who is 5-foot-3, began one case by rather dramatically turning a crank to lower the lectern after the court heard from her much-taller adversary. She drew some chuckles when she told the justices, “This may take some time.”
Justices tend to be a proper bunch, so it’s not clear that they universally appreciate her informal style. Her toughest questioner has been Roberts. He called one of Kagan’s arguments “absolutely startling” and upbraided her when she committed a courtroom no-no, posing a question of her own. She immediately apologized.
Yet Roberts offered up praise of Kagan’s argument skills at a recent reception for lawyers who had been sworn into the Supreme Court bar.
If nothing else, Kagan’s courtroom appearances have been good preparation for summer hearings by the Senate Judiciary Committee on her nomination to the Supreme Court.
“Anything that gets you in the mood for hostile questioning in front of a lot of people where there’s a lot at stake is very good preparation,” says Charles Fried, a former solicitor general and a Republican who is a big fan of Kagan.
