By December 2008, Eric Holder and aides to the president-elect had narrowed a list of possible Deputy Attorneys General to two: Elena Kagan and David Ogden.
Holder and Kagan, then the dean of Harvard Law School, weren’t perfect strangers — both served in the Clinton administration — but they weren’t close, either.
Ogden and Holder knew each other well, having both served as top officials in Janet Reno’s Justice Department, and Ogden was spearheading the agency’s transition for Barack Obama.
Few registered surprise when Obama nominated Ogden as Deputy Attorney General in early January 2009. Holder had made the final decision. People familiar with his thinking at the time said he wanted someone with Justice Department experience in the deputy slot, for practical as well as symbolic reasons.
Kagan had been mentioned as a finalist for Solicitor General, though she had never made an appellate argument, and Holder and the White House agreed she was up to the task. Her name was already being floated for the Supreme Court.
Kagan’s brush with the deputy position underscores the serendipity of the Supreme Court nominee: Had Holder swung the other way, selecting Kagan as the department’s day-to-day manager, her path to the high court might have been more like a slog.
Deputy Attorney General is a policy role — the most visible next to Attorney General — while Solicitor General, the federal government’s top advocate before the Supreme Court, largely entails legal work.
Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network, said she expected Kagan to deflect questions about her work as Solicitor General by explaining that her role was to defend the law as it was, not as she would have it.
“She would not have had that cover if she were Deputy Attorney General,” Severino said.
Kagan’s confirmation hearings could have turned into a marathon Justice Department oversight hearing, or a referendum on the Obama administration’s national security policies. She would have had to answer to Holder’s deeply unpopular bid to try Khalid Sheikh Mohammed in federal court in Manhattan, and to the department’s controversial decision to read a Nigerian man who attempted to blow up plane on Christmas Day his Miranda rights.
“Holder has been through a lot, and she would have been tarred with all those things he’s been tarred with,” Severino said. “There would have been so many questions of what role she played.
“I’m sure she’s glad to be distanced from all that.”
On the other hand, Kagan could have shared in the the credit for collaring accused Times Square car bomber Faisal Shahzad in about two days’ time and for implementing increased training for federal prosecutors in the wake of the Ted Stevens case.
But in modern confirmation hearings, less is more, said Curt Levey, executive director of the conservative Committee for Justice.
“We wouldn’t have to wait for the Clinton papers” if Kagan had been deputy, said Levey, referring to the production of hundreds of thousands of documents from Kagan’s time as associate White House Counsel and deputy director of the Domestic Policy Council.
“Everyone agrees that part of Kagan’s appeal is that she’s somewhat of a stealth candidate,” Levey said, adding that he believed Janet Napolitano, the Secretary of the Department of Homeland Security and finalist for the nomination, had accumulated too much baggage to win easy confirmation. (The White House said Napolitano was simply too good at her current job to let go.)
Marge Baker, executive vice president for policy and program planning for the liberal People for the American Way, ventured that Kagan’s experience as Solicitor General was “an asset.” Baker would not say whether her group would have had a more difficult time making its case for Kagan had she beat out Ogden for the deputy post.
The last Deputy Attorney General to ascend to the Supreme Court was Byron White, whom John F. Kennedy nominated in 1962. But jumping from being the “10th justice,” as the Solicitor General is often called, to the ninth is almost as rare.
Justice Thurgood Marshall, for whom Kagan clerked and whose portrait hangs in her office, was the last Solicitor General to take the bench. Lyndon Johnson nominated him in 1967.