Here’s How Justice Kagan Almost Didn’t Wind Up On SCOTUS

Kevin Daley | Supreme Court Reporter

The Obama administration seemed prepared to offer Elena Kagan a plum post at the Department of Justice during the 2008 transition — but no offer came.

Kagan told the Aspen Institute that the Obama transition vetted her for a senior position in the administration — sources told the National Law Journal the post was Deputy Attorney General. She didn’t get the job, but another offer came that changed the trajectory of her career.

“It was a job where I thought ‘Well, this is a job that kind of makes sense,” Kagan said of the position. “I have some of the experiences and skills to do quite well in this job.'”

“I was pretty far along the way through the vetting process — where everybody reads every word you’ve ever said and talks to everybody you’ve ever known since kindergarten,” she added. “I was pretty far along that process and I suddenly got a call, and it said ‘Well, we’ve decided that you’re not going to get that job.'”

Instead, Kagan was appointed Solicitor General, the Justice Department lawyer who represents the U.S. government before the Supreme Court. The position, by her own admission, was something of an odd fit. Though she was an accomplished lawyer and scholar, Kagan had never argued a case before the high court — in fact, her first argument in an appellate court was the Sept. 2009 Citizens United case.

She would argue five more cases before President Barack Obama appointed her to the Supreme Court in 2010. Kagan was a serious contender for Obama’s first Supreme Court nomination. Scholars close to the former president — and even the late Justice Antonin Scalia — offered spirited endorsements.

Obama ultimately selected Justice Sonia Sotomayor, but a year later when another vacancy opened, Kagan was the obvious pick. The sitting Solicitor General is almost always seen as a potential SCOTUS justice, and Kagan’s pedigree — former Harvard Law School dean, tenured professor, and associate White House Counsel — sealed the deal. Had she been tapped for Deputy AG, she might never have been considered for the Supreme Court.

“Getting SG instead was the best career diversion ever, I’d say.” former DOJ spokesman Matthew Miller told the NLJ by email.

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