Image: Elena Kagan
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U.S. Supreme Court nominee Elena Kagan laughs while listening to questions from members of the Senate Judiciary Committee on the third day of her confirmation hearings on Capitol Hill.
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updated 7/7/2010 11:03:51 AM ET 2010-07-07T15:03:51

One talent Supreme Court nominee Elena Kagan displayed in her career climb could create unique ethics questions for her as a justice: the ability to persuade Harvard Law School alumni and other wealthy donors to give hundreds of millions of dollars, more than meeting a daunting fundraising goal that came with her job as dean.

The $476 million total Kagan reached for the "Setting the Standard" campaign was a record not just for her university but for all law schools. Harvard Law sought $400 million to add professors, buildings, programs and financial aid, and whether Kagan could pull it off would help determine her success or failure as dean. She exceeded the goal, raising roughly $306 million from 2003-08, after her predecessor had pulled in $170 million.

Kagan's prolific fundraising sets her apart from the current Supreme Court justices. To raise that kind of money, Kagan drew on interpersonal skills honed working in the highly competitive environments of the Clinton White House and law school faculties.

She did it by reaching out to lawyers, corporate executives and others from the law school and broader legal and business communities. "She raised the money basically purely on her personality," said Harvard Law graduate David Mandelbaum, a trustee of real estate giant Vornado Realty Trust and part owner of the Minnesota Vikings football team. He declined to reveal how much he gave.

"She has a very pleasant way about her, and basically indicated to us that we benefited from the Harvard Law School education and those of us who could should be able to pay back and give a future generation the kind of education we had."

Fundraising is one of the key measures by which law school deans are judged, said Stephen Gillers, a New York University Law School professor and legal ethics expert.

"It's a salesman's job. You're selling a product and the school is a product," Gillers said. "There are two things that make people contribute: Nostalgia as a graduate and a feeling of obligation ... and the second thing you're selling is the work the school is doing. You want to persuade the donor, who may not be an alum at all, you want to persuade them that this school is doing important work in an area of interest to the donor."

If Kagan is confirmed to the court as expected, it's possible she will encounter Harvard donors again, this time arguing as lawyers, plaintiffs or defendants.

For example, alumni listed by Harvard as active in the fundraising campaign include Sumner Redstone, chairman of the board of CBS Corp. and Viacom. Redstone and his family are controlling shareholders in both companies. Viacom is pursuing a $1 billion copyright infringement lawsuit against YouTube and Google in federal court. A judge last month ruled against Viacom, owner of cable channels such as MTV, Comedy Central and Nickelodeon; Viacom plans to appeal.

If attorneys or law firms who donated represent clients before the court, it probably wouldn't be considered a close enough link to force Kagan to recuse herself from the case — even if the giving helped her succeed as dean, which in turn made her a more attractive candidate for the court, said Arthur Hellman, a University of Pittsburgh law school professor and expert in federal courts and judicial ethics.

If a person or company who gave at Kagan's behest ended up a party in a Supreme Court case, "that's a closer question," Hellman added.

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New York University's Gillers agreed. "You need two things. You need a contribution so large that we could say that Dean Kagan would feel a sense of great personal gratitude and then you need a case in which the donor had a significant personal or business interest before the court," Gillers said.

Plenty of people saw reason to help Kagan's cause as donors and fundraisers, including prominent attorneys, law firms and business executives, according to law school announcements during the campaign. Among them:

— Law firm Sidley Austin established a visiting professorship of law.

— John Cogan Jr., former chairman of the law firm Hale & Dorr, now called WilmerHale, gave at least $6 million. Kagan announced in early 2009 that the money would be used for the school's international legal studies program.

— Joseph Flom, a partner in the law firm Skadden Arps, helped found the school's Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics.

— Rita Hauser, named by President Barack Obama to his intelligence advisory board, and her husband Gus Hauser donated to establish the Rita E. Hauser Professorship of Human Rights and Humanitarian Law.

— Howard Milstein, chief executive of the New York Private Bank & Trust Corp., and his wife Abby Milstein donated.

— The law firm Wachtell, Lipton, Rosen & Katz donated.

— Finn M.W. Caspersen, a Harvard Law alum, heir to a financial services company fortune and chairman of the fundraising campaign, gave $30 million, Harvard Law's single largest contribution. A new student center is named after him. Caspersen committed suicide last year.

— Law school graduate and then-Lazard Ltd. financial advisory and assets management firm chief executive Bruce Wasserstein and his family gave $25 million, the second biggest donation in the school's history. A new hall is named after Wasserstein, who died last year.

— Partners in the Kirkland & Ellis law firm gave $3 million to renovate a large classroom, now named Kirkland & Ellis Hall.

As dean, Kagan frequently expressed gratitude to the Harvard donors.

"We are enormously grateful to everyone at Kirkland & Ellis for this new gift, and for Kirkland's unwavering support over the years," Kagan said in June 2005, announcing the firm's donation. Harvard declined to release a full donor list.

Asked by the Senate Judiciary Committee to list potential conflicts of interest, Kagan didn't mention her Harvard fundraising, and senators didn't ask her about it during two days of questioning at her confirmation hearing last week.

"The principal conflicts of interest that I would encounter arise from my service as solicitor general," Kagan wrote on her Senate questionnaire, adding that the only others she was aware of would involve Harvard litigation.

It's up to justices to decide whether to recuse themselves. Kagan told the committee she would step away from all cases in which she had been attorney of record, and would look to judicial and government ethics rules and her colleagues for guidance.

Harvard Law graduate Jack S. Levin, a Kirkland & Ellis partner in Chicago who helped arrange his firm's $3 million donation and head the campaign's Midwestern effort, said he knows four justices well. Levin said he has a high regard for Kagan and thinks the feeling is mutual, but doesn't consider their connection something that would give him or his firm an advantage before the court.

"People like Elena Kagan deal with hundreds and hundreds of people and once that's over, they don't owe them any allegiance," Levin said.

Copyright 2010 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Video: How will Roberts court shape up?

  1. Closed captioning of: How will Roberts court shape up?

    >>> well, elena kagan 's seat is probably secure, but what will the future of john roberts court look like? ted olson and david boise have teamed up to fight california 's ban on same sex marriage. before we get to the future of the court , i want to start with the news of the day. ted, i want to start with sort of this lawsuit the federal government has initiated against the state of arizona . walk us through the procedure on this. so the federal government is suing a state over a statute. where will it go from here? first, what court hears it first, and how long will it take to the get to the supreme court ?

    >> well, it is my understanding they file the case in a federal district court in arizona to seek the blockage of the enforcement, the effective date of the statute, which is july 29th . they are asking a judge to enjoin arizona from enforcing that statute. one of the issues that they have is that they are saying that enforcement of the statute will interfere with federal enforcement of immigration laws , and yet they are asking to stop the implementation of the statute before they know how it works. the answer to your question is it would go to the federal district court in arizona and to the ninth court of appeals , the appeals court for the western states . then onto the united states supreme court . they can probably move this pretty fast because it is the united states . it is federal law , and it is state law , and everybody understands the importance of this because other states are considering similar legislation.

    >> what's fast, really quick?

    >> pardon me? i would say, you know, as we found out practicing law , everything changes. but i would think that it might take a year or so, maybe a year and a half, before they get a decision from the united states supreme court , but that depends on a lot of factors.

    >> savannah?

    >> david , it is savannah here in washington. i just wanted to ask you, in a general sense, know you guys aren't very close with this complaint, but how rare is it to have the federal government challenging supremacy grounds as state law ?

    >> it is unusual. often there are challenges to state laws on supremacy grounds. that happens all the time in litigation, litigation, but it's usually not left up to the federal government to do that. usually that is private parties who are doing that. it is unusual to have the federal government step in so quickly and so decisively in connection with a state law .

    >> let's move to what the case, the two of you are working on. you have done this as a private citizen, but you're challenging a state law in california and at some point on what grounds are you challenging this law in california that you want the supreme court to hear?

    >> we are challenging proposition eight which is a measure adopted by the california voters to amend the california constitution that said that marriages would only be recognized between a man and a woman. they put that in the california constitution taking away the rights of gay and lesbian citizens to get married, which had already been recognized in california . david and i are challenging that constitutional amendment on federal constitutional grounds and we're representing private individuals who, in close relationships who wish to get married and we're saying that it denies them the equal protection of the law because we're putting gay and lesbian fellow citizens in a separate class denying them rights that are available to other people and taking away from them the right to marry, which the supreme court has repeatedly held is a fundamental right in our country.

    >> david , i'm sure you watched the elena kagan confirmation hearings. it seemed democrats were making an argument that the roberts court was a conservative activist court . of course, that's a twist on the age-old complaint by conservatives of judicial activism on the left side of the spectrum. do you think that roberts court is a conservative activist court or is that activist label just become kind of a catch phrase for saying, we don't agree with those decisions?

    >> well, i think the roberts ' court , to some extent, is a conservative court , at least when it's deciding things usually chief justice and majority. but every court is activist. what happens is that the losing side always decries the winning side as activists. when that court strikes down state statutes, federal statutes, expands rights, what you have here is a different focus on rights than some of the other justices on the supreme court might be more in favor of. you also have different state and federal statutes being struck down. but activism is activism. if by activism you mean the supreme court stepping in and striking down state statutes, striking down congressional statutes and giving a particular lead narrow interpretation to laws that they don't like and a broad interpretation to laws that they do like, almost every court is activist in that sense.

    >> fair assessment really quickly, ted. activist is in the eye of the beholder .

    >> people who say that over and over again. what david , i think, was saying is one important point. we have an independent judiciary to enforce the constitution. legislatures and the executive branch officials sometimes deprive people of their individual rights because they're minorities. that's what we expect the courts to help us with.

    >> ted olson , david boies , thank you both for being here. we look forward to seeing you here as we use the thin air to say really smart things or really crazy things.

    >> i'm very curious if david and ted agree on everything now or if they still have their disagreements? i wonder if i have the answer.

    >> we still disagree on citizen

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