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“A rose by any other name….”

If Harvard Law School dean Elena Kagan is confirmed as the nation’s first female solicitor general – she’s been nominated to supervise all federal government litigation in the Supreme Court by HLS alum and President-elect Barack Obama – she would be addressed as “General Kagan” by the justices (and by others as well), New York Times Supreme Court reporter Adam Liptak noted on January 7th.

Technically, it’s true, but it’s hardly clear that Kagan would in fact want to be addressed by that new title, rather than simply as “Dean Kagan.” There’s an interesting precedent on the subject.

In the early 1970s, I was involved in representing then-Senator Mike Gravel (D – Alaska) and Boston-based Beacon Press in the lesser-known local angle to the infamous “Pentagon Papers” imbroglio. Intelligence reports involving details of the Vietnam War were secretly leaked to Gravel, who then handed them over to Beacon for publication. Wanting to locate and punish the informant, Richard Nixon’s Justice Department henchmen served Gravel’s staff and the publisher with a grand jury subpoena. (As we all know, the leaker turned out to be long-time Cambridge resident Daniel Ellsberg.)

Gravel’s legal team won the argument in the First Circuit Court of Appeals, sitting in Boston, which ruled that “legislative privilege” protected Gravel’s staff and Beacon from having to obey the subpoena. It was a precedent-making interpretation of the Constitutional clause that protects legislators from being questioned, much less harassed, by all the President’s men. Nixon and his Department of Justice were furious and were inclined to appeal to the Supreme Court. Gravel’s legal team arranged a meeting with the then-solicitor general, Erwin N. Griswold, who previously had been the long-time dean of the Harvard Law School. Our aim was to talk Griswold and his team out of pursuing the appeal.

Gravel’s legal team – myself included – walked into the solicitor general’s ornate office at the Department of Justice building in Washington. In the room were Griswold’s main underlings and clerks, most of them Harvard Law grads who had known Griswold since their student days. We were all waiting for the great man to arrive. I asked one of the young staff lawyers whether Griswold – a notoriously stiff and formal fellow – would want to be greeted as “General Griswold” or “Mr. Griswold.”

Without missing a beat, or even breaking into a smile, the young assistant solicitor general responded that it was normal protocol to address such august figures by the highest professional title that they’d attained. That being so, the lawyer advised me, “the solicitor general prefers to be addressed as ‘Dean Griswold.’”

Will it be General Kagan, or Dean Kagan? We’ll find out soon enough.

And, by the way, Dean Griswold decided to appeal to the Supreme Court, which reversed the First Circuit in a closely-divided and still controversial decision.

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