The XX Factor: What women really think.

The United States Gets Its First Female Solicitor General

The Senate has just confirmed Elena Kagan to be solicitor general of the United States by a vote of 61-31. She's the first woman to be confirmed to the post.

More on Dean Kagan

Emily, a quick response to yours on Elena Kagan: Just as you and I were wondering whether Dean Kagan would suffer for her relative lack of oral-advocacy experience, I received e-mail from a well-respected Supreme Court oral advocate, Roy Englert, whose institutional memory is far longer than mine. Roy reminded me that until Seth Waxman became solicitor general in 1997, “it was very unusual for the SG to come from private practice, and very unusual for the SG to be someone who had done Supreme Court arguments before becoming SG.” 

Roy also pointed out that until very recently “the SG was either a respected academic or a federal judge who resigned to take the position.” Drew Days was a professor at Yale before becoming SG; Ken Starr was a D.C. Circuit judge who resigned to become SG; Charles Fried was a professor at Harvard before becoming SG; Rex Lee was a professor and dean at Brigham Young University before becoming SG. And so on through Robert Bork, Erwin Griswold, and Archibald Cox. By that metric, Kagan is not so much an outlier as far as her résumé is concerned, but rather a return to a tradition of primarily academic, as opposed to oral advocacy, credentials.

What It Takes To Be Solicitor General

I am breaking into the sugar daddy thread at my peril, I realize. But for a moment, another topic: Elena Kagan, Obama's choice for solicitor general. Dahlia writes, correctly, of the kvelling for Kagan--law professors have been calling me to volunteer their praise for her management of Harvard law school and her knowledge of constitutional law. But there's also an undercurrent of surprise about this choice. Kagan isn't a member of the Supreme Court bar. She has never argued a case before the high court; and while I don't know she hasn't definitively, I haven't heard of her arguing cases before other courts, either. Does this matter for the SG's job? Or is it like Leon Panetta for the CIA--a matter of being differently experienced, but not necessarily less qualified?

Linc Caplan, my friend and mentor, and everyone's wise man about the SG's office, since he wrote the book on it, isn't worried about Kagan's lack of record as an oral advocate. He says that while appearing before the court is the most visible and glamorous part of the job, that the "main role of the SG is to shape the legal positions of the U.S. government in the federal courts." For that, he says, Kagan’s experience at Harvard and before that as a lawyer ("a law clerk at the Court; a couple of years at Williams & Connolly; a few years at a high level in the White House") is all on point. That makes sense to me. Still, there will be an extra shiver of anticipation about Kagan's first argument as the first woman SG.