Kagan fills out Judiciary Committee Questionnaire. Answers Questions About Recusal, Rumsfield v. Fair

May 18th, 2010

Available here. It’s over 200 pages long. And yes, I will read through it. I’ll post any observations I have.

Question about Determining Recusals

Question- Explain the procedure you will follow in determining recusals.

Answer- If confirmed, I would recuse in all matters for which I was counsel of record. Iwould also look to the letter and spirit of the Code of Conduct for United StatesJudges (although it is not formally binding on members of the Supreme Court ofthe United States), the Ethics Reform Act of 1989, 28 U.S.C. 455, and any other relevant prescriptions. I would also consult with my colleagues in any case whererecusal might be advisable.

All cases Kagan has tried to verdict (none)

Question- List, by case name, all cases in courts of record, including cases beforeadministrative law judges, you tried to verdict, judgment, or final decision

Answer- I have never tried a case to verdict or judgment.

Discussion of Amicus Brief in Rumsfield v. FAIR

Question- Supply four (4) copies of any briefs submitted to the Supreme Court of theUnited States on your behalf as a party or amicus. Summarize your reason forinterest or involvement in each brief.

Answer-While dean of Harvard Law School, I joined an amicus brief in the SupremeCourt (as well as in the Third Circuit) with many of my faculty colleagues insupport of respondent Forum for Academic and Institutional Rights, Inc. (FAIR) in an action against Secretary Rumsfeld challenging the Solomon Amendment,which governs universities’ treatment of military recruiters. I did not participatein the drafting of this brief. Whereas the main brief in the case presented aconstitutional argument, the amicus brief presented a statutory argument – that theAmendment did not require universities to exempt the military from generallyapplicable anti-discrimination rules governing employers. The Supreme Courtunanimously rejected all claims, constitutional and statutory alike in Rumsfeld v.FAIR, 547 U.S. 47 (2006).

Legal Activities in Private Practice, in Academia, and as Dean

Question- Describe the most significant legal activities you have pursued


I currently serve as Solicitor General of the United States. In that capacity, I am theprincipal advocate for the United States in the Supreme Court, and make a wide varietyof decisions concerning the appellate litigation of the United States.For almost six years, I served as the dean of Harvard Law School. That job had a verysignificant academic component: as dean, I led efforts to expand and enhance the facultyand to reform and modernize the curriculum. The job also had a very significantmanagerial component: Harvard Law School has a $180 million operating budget, over500 employees, and almost 1 million square feet of physical space. Finally, the jobincluded significant outreach to and interaction with key parts of the profession,including judges, government officials, private attorneys, and public interest lawyers.Significant parts of my career have been devoted to scholarship and teaching. Between1999 and 2003, I principally focused on administrative and associated constitutional lawquestions. My major work during this period concerned the relationship between thePresident and the administrative agencies. Between 1991 and 1995, I wrote primarilyabout issues of free expression. My major work at this time proposed a theory of theFirst Amendment focused on the nature of governmental motives underlying speechrestrictions.My work in the White House, both in the Counsel’s Office and the Domestic PolicyCouncil, centered on the development and implementation of law and policy in areasranging from education to crime to welfare to public health. Among other matters, I ledthe Clinton Administration’s inter-agency effort to analyze all legal and regulatoryaspects of the Attorney Generals’ tobacco settlement and then participated actively in thedevelopment and congressional consideration of tobacco legislation. I also worked onlegislative or executive action involving constitutional issues, including the separation ofpowers, governmental privileges, freedom of expression, and church-state relations.I have never performed lobbying activities for any client or organization

Courses Kagan Taught

Question- What courses have you taught?


Constitutional Law – numerous times at Harvard and University of Chicago; most recentsyllabus attachedCivil Procedure – numerous times at Harvard and University of Chicago; most recentsyllabus attachedLabor Law – three times at University of Chicago; most recent syllabus attachedPresidential Lawmaking (seminar) – once at Harvard; syllabus attachedThe President and the Law (seminar) – once at Harvard; syllabus attachedLaw of Political Process (seminar) – once at University of Chicago; no syllabus found;dealt with issues of election law such as districting and campaign finance.

Possible Conflicts of Interest

Question- Conflict of Interests


The principal conflicts of interest that I would encounter arise from my service asSolicitor General. I would be recused in all matters for which I was counsel ofrecord. I would handle recusal questions in all other matters involving myservice as Solicitor General consistent with the procedure set forth in my answerto question 13(c). The only other potential conflicts of interest of which I amaware would arise from litigation involving Harvard University. I would handlerecusal questions in these cases in the same way.
Question about judicial selection Process
I was contacted by Bob Bauer, White House Counsel, and Susan Davies, Deputy White House Counsel, on March 5, 2010, to inform me that the President wished to consider me for a possible Supreme Court vacancy. Between that date and the day of my nomination, I had frequent contact with Mr. Bauer and Ms. Davies. On April 7, 2010, Ron Klain, Chief of Staff to the Vice President, contacted me about meeting with the Vice President. Also that day, I met with David Axelrod, Senior Advisor to the President; Cynthia Hogan, Counsel to the Vice President; and Lisa Brown, Staff Secretary to the President. On April 13, 2010, I met with Ms. Davies and Danielle Gray, an Associate White House Counsel. On April 15, 2010, I met with Amy Sabrin of Skadden Arps, as well as Leslie Abrams, Robyn Carr, and Maya Florence of that firm; Ms. Davies also attended this meeting. I met again with Ms. Sabrin and Ms. Carr on April 28, 2010. I met with Vice President Biden on April 27, 2010, and was interviewed by President Obama on April 30, 2010. I met with Valerie Jarrett on May 6, 2010. President Obama informed me on May 9, 2010 that he wished to nominate me to the Supreme Court. During this period, I also had numerous other communications with the White House staff members listed above, or groups of them, as well as with Daniel Meltzer, Principal Deputy White House Counsel; Julia Kazaks of Skadden Arps; and Attorney General Eric Holder.