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WASHINGTON (AP) - 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
"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,"
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
- 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
- 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
- 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
- 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
"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,"
Associated Press Writer Steve LeBlanc in Cambridge, Mass.,
contributed to this report.
(Copyright 2010 by The Associated Press. All Rights Reserved.)