Obama taps Harvard Law School dean as solicitor general

Kagan's views on use of power could be crucial

AS WHITE HOUSE ADVISER Elena Kagan argued that without centralized powers agencies would suffer from "arteriosclerosis."

WASHINGTON - Elena Kagan, the Harvard Law School dean and a onetime clerk to Thurgood Marshall, the late Supreme Court justice, was nominated yesterday to become President-elect Barack Obama's solicitor general, charged with defending the government's position in cases before the Supreme Court.

Kagan, who as an academic specialized in charting the limits of the president's regulatory authority and as an aide to President Clinton tested them, is expected to play a key role in Obama's efforts to redraw such powers. Obama has criticized the Bush administration for expanding the powers of the presidency.

Among the first issues Kagan will face is crafting a legal strategy in the case of Ali Saleh Kahlah al Marri, a Qatari student being held in a Navy brig for alleged ties to Al Qaeda. A brief in the case is due before the Supreme Court next month. While Obama has criticized President Bush's assertion of a broad presidential power to hold combatants indefinitely without trial, he has not indicated how he wants government lawyers to approach this particular case, which could set precedents applicable to detainees being held at Guantanamo and elsewhere.

Harvard Law contemplates life without Kagan. B2

Although she is viewed as a defender of civil liberties, Kagan's most influential scholarly writing was a 2001 defense of the Clinton administration's assertion of the right to direct federal regulatory agencies without congressional or court involvement. Based on her experience as a White House policy adviser, Kagan argued that without such centralized powers, agencies would suffer from "arteriosclerosis" and "ossification syndrome."

"She is certainly a fan of presidential power," said William F. West, a professor who specializes in federal administration at the Bush School of Government and Public Service at Texas A&M.

When her article was published in the Harvard Law Review, Kagan entered a debate that has defied conventional ideological or partisan lines. Among her critics was Neal Katyal, a lawyer who before the Supreme Court challenged the Bush administration's legal procedures for detainees.

Kagan "invites the question of whether the vantage point of an administration that wants to get things done is the proper one for setting parameters in constitutional and administrative law," wrote Katyal, a professor at Georgetown University law school.

The article "influenced the way a lot of people in Washington thought," said West, adding that "her argument has been used to justify some of the things that have been happening in the Bush administration."

Kagan, who became Harvard's dean in 2003, has had little to say about the legal and political issues related to presidential power that have emerged as a result of Bush's efforts to combat terrorism.

One Harvard Law colleague dismissed the idea that Kagan's writings on the subject, based on policymaking before Sept. 11, 2001, were relevant.

"I don't think these issues intersect very well with the issues of presidential power in the last eight years," said Harvard Law professor John F. Manning, who also specializes in administrative law. "She's been a dean for the last 5 1/2 years, and deans don't tend to have a lot of time to write. There is a tradition here of the deans being fairly apolitical."

Kagan did not respond to a request for comment yesterday.

Like Obama, Kagan, 48, is a Harvard Law graduate and former member of the University of Chicago Law faculty who has moved between law and politics. After clerking for Marshall, Kagan worked at a Washington firm specializing in litigation and then served in the White House counsel's office under Clinton.

When Congress was under Republican control, Clinton relied heavily on his executive power to enact changes to the law, and Kagan was noticed for her ability to synthesize legal and political concerns. She was selected to serve on the domestic policy council, where she worked on efforts to regulate tobacco.

"She's a great thinker, but she's also a doer," said Bruce Reed, Clinton's domestic policy adviser. "She could translate the legal world for the White House better than anyone else around, and she was able to do it in a way that was consistent with her reputation for academic rigor. She has a good sense for politics, as well."

Those skills will probably serve Kagan, who has little experience with appellate law, as Obama tries to convert his positions - during his campaign, he promised a dramatic break from Bush's ideas about presidential power - into a legal strategy.