Elena Kagan's New York story -- May 13, 2010 column

By MARSHA MERCER

Elena Kagan, President Barack Obama’s latest choice for the Supreme Court, was the first woman dean of Harvard Law School and first woman solicitor general of the United States. By all accounts, she’s smart, good with people, open-minded and a bridge-builder.

Perhaps it’s progress that Kagan lacks one thing we’ve come to expect of women who make it to the Supreme Court: the compelling, personal story. She has worked hard, granted, but where’s her inspiring tale of triumphantly beating the odds – and should it matter?

Kagan is no Sandra Day O’Connor. The court’s first woman justice, tapped by Ronald Reagan in 1981, grew up on a ranch in Arizona 25 miles from the nearest neighbors. After she excelled at Stanford Law School, she looked for work at law firms only to be asked if she could type. She entered Republican politics instead and brought to the court the perspectives of a state legislator and county and state judge.

Then again, Kagan is no Sonia Sotomayor. Obama’s first pick for the Supreme Court grew up in the tenements of the South Bronx, where, watching “Perry Mason” on TV, she vowed to become a judge. She got a full scholarship to Princeton University, felt overwhelmed, found her footing, graduated with honors and went to Yale Law School. She became a prosecutor and later was named a federal district and appellate court judge.

Kagan, the daughter of a Yale-educated lawyer and a teacher, grew up in a third-floor apartment on Manhattan’s Upper West Side. She attended an elite, public, all-girls high school, went to Princeton, received a fellowship to Oxford University, then chose Harvard for law school. She met Obama while teaching at the University of Chicago. She worked on Capitol Hill and in the Clinton White House.

Pragmatic, cautious, calculating and strategic – these are words often used to describe Kagan, by her friends. She plays her cards close.

After a summer of partisan sniping, she probably will gain Senate confirmation and become the third sitting woman justice from New York. Ruth Bader Ginsburg is from Brooklyn.

Obama said that with Kagan, the court will be “more reflective of us as a people than ever before.”

Kagan’s “appreciation of diverse views” may come in handy as a Mets fan serving with Sotomayor, a Yankees’ fan, Obama said.

Such comments may say more about Obama’s view of the country than about Kagan. There’s nothing wrong with a New York or an Ivy League tilt to the court – as long as the justices know not only the law but the struggles Americans face every day.

Trying to humanize Kagan, Obama said she sees the law “not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people.” That, however, is hard to know.

She has never been a judge, and her academic writings are few. She has lived her professional life in an orbit Republican Sen. John Cornyn of Texas described as “Harvard Square, Hyde Park and the DC Beltway.”

“These are not places where one learns how ordinary people live,” Cornyn said in a statement.

But Cornyn isn’t necessarily right. To be sure, Kagan’s experiences are different from many Americans. At Hunter College High School, located on two floors of a midtown Manhattan office building, “There was no driver’s ed, there was no home economics, you didn’t learn to type,” a former student told the New York Times. “You were reading great books and you were going to college.”

Kagan dressed in judge’s robes for her high school yearbook picture. And, she wrote after the 1980 elections: “Where I grew up – on Manhattan’s Upper West Side – nobody ever admitted to voting for Republicans.”

But parochialism isn’t disqualifying.

Still, it would be reassuring to know that Kagan is wise as well as smart, that she knows life is about more than ambition and goals. Sotomayor, 55, who is divorced, likes parties and Salsa dancing. Little is known about Kagan, 50, who is single. A flurry of news reports that Kagan might be gay was knocked down by her friends. The Times reports that she loves opera, plays poker, has a wry sense of humor and used to smoke cigarettes.

Kagan will have ample opportunity in confirmation hearings to share her personal thoughts and world views, but don’t count on it. She’s a woman who apparently has spent her life walking through Central Park without disturbing any leaves.

Elena Kagan already may understand and appreciate the vast American experience. If not, she may have decades on the court to explore the country’s rich variety. I hope she sees value in doing so.

© 2010 Marsha Mercer. All rights reserved.