Elena Kagan, wild card for big business

elena_kagan.gi.top.jpg by Nin-Hai Tseng, reporter


FORTUNE -- Members of the Senate judiciary committee have plenty of ground to cover at this week's confirmation hearing of U.S. Solicitor General Elena Kagan. But when it comes to what big business should expect from President Obama's pick to replace U.S. Supreme Court Justice John Paul Stevens, the talking heads are united in their uncertainty: Who really knows what she'll do? She's a wild card.

Indeed, Kagan's resume doesn't boast the kind of experience of most justices before her. She has never been a judge. And observers have latched onto this as proof that there isn't much proof for where she might stand on legal matters in general -- let alone on business.

But perhaps a degree of unpredictability on the Supreme Court is just what corporate America needs. Stevens complained that during the course of his 35-year tenure on the court, the bench has become more and more partisan, often leaving little doubt as to which way certain cases will be ruled. When lawsuits involving major corporations reach the highest judicial level in the country, a bit of uncertainty will likely make for a better show. Justices in the center are a welcome addition to the unbalanced scale.

There are three parts to Kagan's career that offer a few glimmers into her thinking on big business: her record at the Department of Justice as a defender of shareholder and investor rights, her pragmatic reputation as a domestic policy advisor for former President Bill Clinton, and her time running a top-notch law school with a multi-million dollar fundraising campaign.

Kagan's record hardly translates into an anti-business bent but accountability appears to matter to her.

As solicitor general at the Justice Department, Kagan is in the position of having considerable influence over the nine justices on the High Court (Congress created the office in 1870 to help the federal government speak with single voice in the courtroom). Multiple times throughout the year, the justices seek the office's advice as to whether a case could clarify a certain law. The solicitor general generally reflects the opinion of the White House.

Fighting the fight on behalf of the boss

In one of her most notable positions, Kagan advised the nine justices last year to preserve rules prohibiting corporations from buying political campaign ads, contending that the restrictions protect investors who didn't necessarily agree with a company's political position. In a controversial ruling, the court ultimately knocked them down instead.

Kagan's office is also asking the Supreme Court to let shareholders wait longer to sue companies for securities fraud in a case against Merck (MRK, Fortune 500). Investors have argued that the drug-maker deceived them about the risks of its Vioxx painkiller and the justices are considering whether to accept their lawsuits. Merck argues the investors filed their suits too late, while investors argue they filed within a reasonable time frame after relevant information became available. The justices will hear arguments later this year.

Rutgers University Law School professor Earl Maltz says he doubts Kagan will be friendly to big companies because she is Obama's pick and doesn't have the body of legal opinions a judge would have to show where she stands on the law.

But while Kagan's limited record supports that argument, it doesn't signal that she will work against companies or their corporate boards, either. If anything, the business world might expect fairness and accountability from the magna cum laude Harvard Law School graduate.

Those who argue otherwise might be reading too much into President Obama's remarks when he announced Kagan's nomination. As solicitor general, he said Kagan has "repeatedly defended the rights of shareholders and ordinary citizens against unscrupulous corporations. Last year, in the Citizens United case, she defended bipartisan campaign finance reform against special interests seeking to spend unlimited money to influence our elections."

Obama appointed Kagan to the solicitor general position, and so he understandably has certain expectations of her. But his remarks alone don't suggest she is necessarily anti-business.

Smooth negotiator

Kagan might never have run a multi-billion dollar company but she did oversee a multi-million dollar fundraising campaign as dean of Harvard Law School since 2003 (she's been on leave since 2009 when Obama appointed her solicitor general).

At Harvard, Kagan also overhauled the law school's curriculum and revised the way it hires faculty. She tried to ease rifts between professors, and she was non-partisan in these efforts -- Kagan reportedly went against liberal faculty members who tried to keep Jack Goldsmith, a former White House lawyer under the Bush Administration, from getting hired.

Kagan has also built a reputation of knowing how to strike compromises.

In 1995, she accepted a post at the White House under the Clinton administration. As a domestic adviser and lead negotiator on an anti-tobacco proposal, she wrangled common ground between the Food and Drug Administration and Sen. John McCain of Arizona, who wanted to limit the agency's authority over tobacco. The 1998 deal (which was defeated) would have given the FDA the same regulatory powers over tobacco as it had over drugs and medical devices.

It is hard to tell how Kagan might ultimately rule on weighty business matters, and trying to guess is almost a fool's game. But throughout her career, Kagan has shown she's neither ideological nor political. She weighs both sides and takes accountability in business seriously.

And that may be just what the High Court needs most. To top of page

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