Kagan: 'Too Soon' for a Bobblehead

This article first appeared in the February 12, 2014, issue of the National Law Journal’s Supreme Court Brief.

*Photo credits below

Speaking to an audience in Washington, D.C., Justice Elena Kagan recently reflected on her future legacy—and a possible Kagan bobblehead.

The occasion was a February 5 luncheon where Judge Sri Srinivasan of the U.S. Court of Appeals for the D.C. Circuit was honored with the J. Reuben Clark Law Society’s Rex Lee Advocacy Award.

During a question and answer period, I asked Kagan how she would like to be remembered and, on a related, but more whimsical note, what she would like on her future bobblehead. The popular figures of Supreme Court justices, distributed by the Green Bag law journal, feature visual references to justices’ important opinions.

“I don’t have ambitions to lay down some marker in a particular field of law,” Kagan replied. There is no: “I want to be a great First Amendment person,” or “I want to have a legacy in Fourth Amendment” for her. “I am taking the cases one by one” and trying “to decide [them] as well and honestly as I can.”

Kagan wants her opinions to be clear, persuasive, and “not awful to read.”

And about her bobblehead?

“Too soon, too soon, too soon,” the justice indicated. “I hope that none of the things that I have written [so far] will make the cut” because there has not been “anything significant enough.”

Responding to another question, Kagan recalled a conversation with Srinivasan and former Solicitor General Paul Clement about different argument styles. The three were on a plane, traveling back from the Sixth Circuit.

“I forget whether it was Paul or Sri who said some people heat up a room, and some people cool down a room,” Kagan offered, noting that superb advocates fit in both categories.

Srinivasan is on the cool side, Kagan observed, “incredibly forceful and persuasive” in giving justices the unadorned “scoop.” Clement uses his own effective approach, she pointed out, bringing “electricity” to the podium.

It “is really important for young lawyers to remember when they start developing their own advocacy style, that you can be great in a lot of different ways,” Kagan explained.

Accepting the Rex Lee award, Srinivasan joked that he has gone from being “an appellate advocate wanna be” as a new law graduate to “already an appellate has been with my most recent appointment.”

Srinivasan joined the D.C. Circuit in May 2013, after a distinguished career as an appellate advocate. At the time of his confirmation, Srinivasan was the Principal Deputy Solicitor General, the number two position in the office, once held by Chief Justice John Roberts. The Senate confirmed Srinivasan to the D.C. Circuit by a remarkable 97-0 vote, and he is often mentioned as a potential Supreme Court nominee.

Srinivasan praised the thirteen prior Rex Lee award recipients, who include several past solicitors general and other appellate luminaries, as “the best of the best” and expressed gratitude that he had worked with eleven of them.

Judge Thomas Griffith, Srinivasan’s D.C. Circuit colleague, introduced Kagan at the luncheon. Srinivasan thanked Griffith for giving him a warm welcome to the court and for his example as a judge.

The annual Rex Lee award is named for the late solicitor general who served in the Reagan administration. His son, Senator Mike Lee (R-UT), was at the luncheon.

Solicitor General Donald Verrilli, Walter Dellinger, Maureen Mahoney, and other well-known appellate attorneys also attended.

James Rasband, dean of the J. Reuben Clark Law School at Brigham Young University, introduced Srinivasan and presented the award.

The J. Reuben Clark Law Society is associated with BYU’s law school and its sponsor, the Church of Jesus Christ of Latter-day Saints. Rex Lee served as president of BYU and as its founding law school dean.

*Photo credits: Nicholas Jepsen for the J. Reuben Clark Law Society
1-Justice Elena Kagan during Q&A
2-Judge Sri Srinivasan and Dean James Rasband, BYU Law School, with the Rex Lee Advocacy Award
Hyatt Regency Washington on Capitol Hill

D.C. Circuit Presentation: Deleted Scenes

The only problem with covering a recent panel presentation by three judges from the U.S. Court of Appeals for the D.C. Circuit was narrowing down the material. The original report, which told what the judges had to say about the sequester and the recess appointments case, ran at Above the Law, linked here.

Below are some "deleted scenes" from the excellent presentation by Chief Judge Merrick Garland, Judge Thomas Griffith, and Senior Judge Laurence Silberman, as part of the J. Reuben Clark Law Society's annual conference held last week at Georgetown Law.

*Silberman sees the decline in law school applications as a "healthy shakeout." There are too many good people going into law, he said.

*Griffith's advice for life is to "be nice," because it is the right thing to do. If you do not care about doing the right thing and just want to get ahead, his advice is the same. You never know when your paths will cross with someone again.

*Garland fielded a question about work-life balance. He does not want to hold himself up as an example; he works very hard. But one thing he did do when his kids were growing up was drive them to school. They always had that half hour together at the beginning of the day. Sometimes it was just "a bunch of sarcasm" or listening to the radio. But other times, his kids would tell him what they were "thinking and worrying about," and he values those times.

*When Garland was giving the last comment, he explained, "I don't leave at five and come in at ten....It's not my way." Silberman, the senior judge on the panel, jumped in with, "It's my way."

*Garland likes to do his own writing. "Don't feel 'dissed' if I don't use your language," he tells his clerks, "in the current vernacular."

*Silberman seemed to commit a cardinal sin of the D.C. Circuit and fall into his own personal pet peeve. Acronyms are disfavored at the circuit, and court rules require an acronym glossary in briefs.

When Silberman mentioned FERC during the presentation, Garland spelled out "Federal Energy Regulatory Commission" and added, with a hint of tongue in cheek, "We don't like acronyms in our court." (In Silberman's defense, FERC is one of the acronyms approved in the D.C. Circuit's practice handbook.)

*Griffith quoted James McPherson, who wrote that Abraham Lincoln "was not a quick study but a thorough one." You do not need to be the most brilliant person, Griffith posited, if you are thorough.

*Silberman remarked that with administrative decisions, one person should make the calls. From his law firm days, he remembers an extended debate over which floor the library would be on.

Guest Post at Above the Law

I have a guest post at Above the Law today: New D.C. Circuit Chief Judge Dreading the Sequester. It is based on a great panel discussion I attended Saturday at Georgetown Law, as part of the J. Reuben Clark Law Society's annual conference.