Law Suit

Time to do away with morning wedding attire at the high court.

Elena Kagan

Barack Obama’s nomination of Harvard Law School’s dean, Elena Kagan, to be his solicitor general has been met with near-universal acclaim. In addition to being a brilliant constitutional scholar and writer, Kagan has garnered wide praise for the triage work she did at Harvard Law. When she assumed the deanship in 2003, the school was a fractious, unhappy mess. But through daring hires of conservative legal scholars and other assorted legal rock stars, as well as masterful oversight of the curriculum and fundraising efforts, Kagan leaves the place healthier, wealthier, and wiser than she found it. Here’s hoping she can do the same for the high court. As the first permanent female SG, Kagan is making history even before she dons her morning coat.

So here’s hoping that Dean-Soon-To-Be-Solicitor-General Kagan assumes this very serious role with all the dignity it warrants. Here’s also hoping that she never dons that silly morning coat in the first place.

Like so many of the court’s goofy sartorial traditions (the inaugural skullcap, e.g.), the solicitor general’s morning coat seems to have lingered on for decades merely because it has lingered on for decades. At oral argument, Justice Department attorneys, notably the solicitor general and his staff, have always been required to wear “morning clothes”—the pre-5 p.m. version of men’s formal wear, consisting of a frock coat with tails, stripey pants, and a vest. This is a holdover from the old days when all attorneys wore morning coats to argue at the Supreme Court. According to the court’s Web site, Sen. George Wharton Pepper of Pennsylvania, who arrived to argue a case in the 1890s in street clothes, so affronted Justice Horace Gray that he hissed, “Who is that beast who dares to come in here with a gray coat?” Pepper was refused admittance until he borrowed the correct attire. Since then, there’s been a spare suit on reserve at the court, although the thorny question of whether proper morning attire demands pearl gray vs. black vests has continued to vex the justices and the SG’s office as well as fathers-of-the-bride everywhere.

Because it’s easier to challenge state death-penalty protocols than a long-standing court tradition, the morning coat has continued on long after it transitioned from adorably antiquated to grotesquely silly—and long after the court stopped being a boys’ club. More than one woman has donned the unfortunate combination of striped trousers, gray ascot, black waistcoat, and cutaway morning coat, to about the same professional effect as Joan Collins’ shoulder pads and bow ties on Dynasty. It’s difficult to really hear the details of a habeas corpus petition when the person making the argument is in costume. The alternative isn’t much better. If my fashion research is accurate, the female equivalent to the morning coat is either an off-the-shoulder ball gown or a mother-of-the-bride pastel confection. Since neither option affords any real dignity, Kagan should resist the impulse to don anything that suggests she is either a woman doing a man’s job, or dashing off to a cotillion.    

Much has been made of Dean Kagan’s remarkable—and, it should be acknowledged, very female—gifts for dispute resolution, mediation, and generalized feather-smoothing. But, if confirmed, the real gift Kagan would bring to the office is her smoking 100 percent gender-neutral legal mind, executive branch experience, and a long history of nuanced scholarship about the court.

Great oral advocacy has traditionally been a man’s game. It requires great confidence, mentors, opportunities, and, ultimately, great experience in oral advocacy. There are a handful of remarkable women oral advocates at the court, and the very best of them now rival the Seth Waxmans and Paul Clements. But there are still not enough of them, for reasons Elena Kagan understands perhaps better than anyone. At a speech she delivered in 2006 about the status of women in the law, Kagan bemoaned the fact that women and minorities are still not advancing in the legal profession in proportion to their law-school graduation rates. Female lawyers continue to earn less, to advance slower, and to funnel themselves into service work and opt out of power positions.

In her remarks Kagan cited a study finding that only 20 percent of highly qualified female lawyers singled out “a powerful position” as a very important career goal. That’s why Kagan’s nomination to the SG position—despite a lack of traditional qualifications—is doubly inspiring. And that’s also why the solicitor general’s morning coat is more than just a cute old tradition that should live on during her tenure. It needs to be retired for the same reasons the House of Representatives finally decided yesterday to officially change to gender-neutral language. This isn’t about uppity women making trouble or rampant political correctness. It’s about women declining to be called men, to dress as men, or to accept that what they are doing is in fact a man’s job. Kagan is by any measure the best person for this position. She shouldn’t have to wear striped pants to prove it.