Kagan's road from solicitor general to Supreme Court: not too rocky?

Supreme Court nominee Elena Kagan will be questioned vigorously during Senate confirmation hearings. But she was confirmed last year as solicitor general – and won seven Republican votes.

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    Solicitor General and Supreme Court nominee Elena Kagan looks to President Barack Obama as she speaks during and an announcement in the East Room of the White House in Washington, Monday.
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By the time word leaked out Sunday evening that President Obama would nominate Solicitor General Elena Kagan to the Supreme Court today, political Washington almost shrugged.

Her position as the presumed next nominee was cemented nearly a year ago, when Mr. Obama used his first court selection to name the first Latina justice, Sonia Sotomayor. The thinking then was that Obama could well have selected Ms. Kagan, who by all accounts is intellectually gifted and has good personal skills, but that he wanted to give her additional seasoning arguing cases before the Supreme Court as the nation’s top advocate in the court.

When Justice John Paul Stevens announced his retirement a month ago, the press got to work digging into Kagan’s background, as well as those of the other assumed short-listers – a time-honored technique in which a White House floats names and allows the media to help with the vetting process.

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In short, nothing has come out on Kagan that would raise any red flags of possible disqualification. And even though, in these highly partisan times, she can expect a vigorous grilling before the Senate Judiciary Committee, the early consensus is that she will ultimately be confirmed, barring any serious stumbles or new, problematic revelations.

Liberals may be grousing a little

In fact, her confirmation is so expected, that some liberals are likely grumbling that Obama did not go for a nominee with a more demonstrably liberal record – say, federal appeals court Judge Diane Wood, whose paper trail indicates strong support for abortion rights. Democrats are expected to come out of the November midterms with many fewer Senate seats than they currently hold, meaning now was the time to make a Supreme Court pick less safe than Kagan, if Obama were ever to make such a move.

One pro-abortion rights group issued a wait-and-see reaction to Kagan’s nomination.

“The Center for Reproductive Rights looks forward to learning more about Solicitor General Kagan’s opinions on important constitutional principles and cases, particularly the right to privacy and Roe v. Wade,” said the group’s president, Nancy Northup, in a statement. We applaud her groundbreaking career history as the first female dean of Harvard Law School and first woman to serve as U.S. Solicitor General. However, her public record reveals very little about her judicial philosophy or her views on the constitutional protections in Roe.”

If any big liberal pushback over Kagan ensues, that may only serve to promote an image of Obama as largely in the center and as one who picks his battles carefully. With multiple tough issues on his plate, including energy and immigration reform, Obama apparently does not want to burn up major political capital on the Supreme Court.

Kagan has never been a judge, and therefore does not have a large paper trail of decisions that can be used against her. Some conservatives are suggesting that her lack of bench experience is problematic, though one need look no further than the late Chief Justice William Rehnquist to find the last justice who came to the court with no judgeship on his or her résumé.

Republicans will also use against Kagan her decision to ban military recruiters from Harvard Law School when she was dean. She took that position – for a time – because of her opposition to the military’s ban on homosexuals’ serving openly.

“Given her lack of judicial experience or time spent as a practicing lawyer, other aspects of her record must be thoroughly examined, including her troubling decision to ban United States Armed Forces recruiters from Harvard Law School,” House minority leader John Boehner (R) of Ohio said in a statement.

Republican senators who backed her in 2009

On the plus side for Kagan is a recent record of support from Republican senators. In her March 2009 confirmation vote for solicitor general, seven Republicans went her way: Sens. Tom Coburn of Oklahoma, Susan Collins of Maine, Judd Gregg of New Hampshire, Orrin Hatch of Utah, Jon Kyl of Arizona, Richard Lugar of Indiana, and Olympia Snowe of Maine.

The stakes, obviously, are much lower for a solicitor general than for a Supreme Court justice, a lifetime appointment. But the words of Republican praise for her uttered just over a year ago help to establish a bipartisan record in her favor.

A sticky question revolves around Sen. Arlen Specter (D) of Pennsylvania. At the time of Kagan’s confirmation last year, Senator Specter was the ranking Republican on the Senate Judiciary Committee, and he opposed her confirmation. A few weeks ago, he indicated he would consider her anew if nominated. Now, as a Democrat, he is caught in a fierce primary battle with Rep. Joe Sestak (D) of Pennsylvania, who wasted no time in applauding Kagan’s nomination.

"Ms. Kagan's qualifications as both a respected legal mind who rose to be Dean of Harvard Law School and a key domestic policy adviser for President Bill Clinton, who helped formulate and implement policies in areas including education, crime, and public health, will allow her to bring a breadth of experience to the bench,” Congressman Sestak said in a statement.

"My opponent, Senator Specter, has already made his views about the President's nominee clear by voting against her confirmation to be Solicitor General, even as seven of his fellow Republicans approved her nomination. I expect Senator Specter may backtrack from his earlier vote on Ms. Kagan this week in order to help himself in the upcoming primary election, but the people of Pennsylvania have no way of knowing where he will stand after May 18.”

Also working in Kagan’s favor is the fact that four Republicans voted to confirm Justice Sotomayor last year. They are Sens. Lamar Alexander of Tennessee, Kit Bond of Missouri, Lindsey Graham of South Carolina, and George Voinovich of Ohio.

Barring a GOP decision to filibuster Kagan, which at this point seems practically impossible, she appears to be in line to fill Justice Stevens’s seat before the Senate’s August recess, as Obama intends.

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