WUSTL law played key role in Kagan vetting

Fourteen professors scrutinized written work of Supreme Court justice prior to confirmation hearings

At the close of the spring semester when most faculty members began to focus on summer writing, a group of 14 Washington University in St. Louis law professors hunkered down over a critical reading task: examining thousands of pages penned by U.S. Supreme Court nominee Elena Kagan.

The American Bar Association (ABA) asked the WUSTL School of Law to form one of three reading groups charged with helping to qualify its recommendation for Kagan to the U.S. Senate for confirmation.

Gregory Magarian, JD, professor of law, headed the WUSTL reading group and chose 13 other professors of varying areas of expertise to work on the project.

“It was a feather in the cap of the law school that we were asked to do this,” Magarian says.

A personal stake in the process

For Magarian, who clerked for Justice John Paul Stevens, this history-making assignment to be part of the process to replace Stevens took on an added layer of importance.


“I had my own personal investment in this,” Magarian says. “I really felt I had a stake in doing it right and making sure that we held up our end of this process as well as we could.”

The group had just 30 days from mid-May through mid-June to pore over many years’ worth of Kagan’s articles, briefs, press releases and e-mails. But unlike that of the typical Supreme Court nominee, Kagan’s body of work contained no judicial opinions.

“For the first time in almost 40 years, we had a Supreme Court nominee who hadn’t had any judicial experience,” Magarian says.

Much of Kagan’s writing was done while working in the administrations of Presidents Bill Clinton and Barack Obama and while she was dean of Harvard Law School. That made it difficult to discern Kagan’s true “voice” in much of her written work.

But it quickly became clear to Magarian and his group that Kagan was “extraordinarily smart” and worthy of the nomination. Had the WUSTL group found significant reason to question Kagan’s professional qualifications, her nomination likely would have been withdrawn.

“I’m emphatically not saying, however, that our negative review alone would have caused the withdrawal,” Magarian says. “Rather, if we had reached a negative conclusion, I suspect that many other commentators, the ABA’s internal reviewers and, for that matter, staffers in the Senate would have been seeing the problems at the same time.”

Kagan was confirmed by the Senate Aug. 5 by a vote of 63-37 and sworn in Aug. 7.

The trio of reading groups also included Georgetown University Law Center and a contingent of practicing attorneys. While the Senate was not privy to the complete memorandums produced by any of the vetting groups, the ABA’s recommendation of Kagan as “highly qualified” included some of their conclusions.

“The ABA seemed very pleased with what we did, so I think it’s a credit to everybody who worked on it,” Magarian says.

Since 1990, when former Justice David Souter was confirmed, only five law schools other than WUSTL and Georgetown have been asked to form reading groups to help vet U.S. Supreme Court nominees: Northwestern University Law School, Syracuse University College of Law, Vanderbilt University Law School, University of Texas School of Law and Stanford Law School.

Magarian has a primary focus on constitutional law in his research and teaching and he specialized in constitutional litigation during his private practice in Washington, D.C.

In addition to Magarian, the WUSTL law contingent included:

Scott A. Baker, JD, professor of law and of economics in Arts & Sciences; Kathleen F. Brickey, JD, the James Carr Professor of Criminal Jurisprudence; Marion Crain, JD, the Wiley B. Rutledge Professor of Law and director of the Center for Interdisciplinary Study of Work and Social Capital; John N. Drobak, JD, the George Alexander Madill Professor of Real Property & Equity Jurisprudence and professor of economics; D. Bruce LaPierre, JD, professor of law and director of the Appellate Clinic; Stephen H. Legomsky, JD, DPhil, the John S. Lehmann University Professor; Ronald M. Levin, JD, the Henry Hitchcock Professor of Law; Mae C. Quinn, JD, professor of law and co-director of the Civil Justice Clinic; Neil Richards, JD, professor of law; Laura Rosenbury, JD, professor of law; Hillary A. Sale, JD, the Walter D. Coles Professor of Law and professor of business; Melissa A. Waters, JD, professor of law; and Peter J. Wiedenbeck, JD, the Joseph H. Zumbalen Professor in the Law of Property.

For interviews, please contact Nancy Fowler Larson at (314) 935-5251 or Nancy_Larson@aismail.wustl.edu until Jessica Martin returns Sept. 7, 2010.

Expert contact information: Greg Magarian, (314) 935-3394, GPMagarian@wulaw.wustl.edu

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