President Obama on Monday nominated Elena Kagan to fill the US Supreme Court seat of retiring Justice John Paul Stevens. If confirmed by the Senate, Ms. Kagan would become the fourth woman to serve as a justice and would increase to three the number of women currently on the nine-member court.
Kagan is the former dean of Harvard Law School and has served since March 2009 as US solicitor general, the government’s chief lawyer at the high court. The solicitor general is sometimes referred to as the 10th justice because of the office’s close working relationship with the Supreme Court.
In introducing Kagan during a White House ceremony, Mr. Obama referred to her as “our solicitor general, and my friend.”
He said she is an acclaimed legal scholar and trailblazing leader who had broken the glass ceiling for women as the first woman to serve as solicitor general and the first woman to lead Harvard Law School.
“Elena is respected and admired not just for her intellect and record of achievement but also for her temperament,” Obama said, highlighting her skill as a consensus builder.
Kagan said she was honored and humbled by the nomination. “My professional life has been marked by great good fortune,” she said. But it has also been motivated in large part by love of the law, she added.
“Law matters,” Kagan said, “because it keeps us safe, because it protects our most fundamental rights and freedoms, and because it is the foundation of our democracy.”
A meteoric rise
Confirmation as a life-tenure justice would cap a meteoric rise by Kagan through some of the most prestigious corridors of the law to the pinnacle of her profession. At 50 years old, she is young enough to spend the next quarter-century helping guide the future course of American law.
Her nomination is seen as part of an Obama administration strategy of placing liberals on the high court who are capable of providing an intellectual counterforce to Chief Justice John Roberts and the court’s conservative wing.
That strategy was apparent in the president’s references to the high court’s recent 5-4 decision striking down a portion of the federal campaign finance regulations dealing with corporate advertising near elections. Obama praised Kagan for agreeing to personally argue in defense of the law despite what he said were long odds of success.
“I think it says a great deal not just about Elena’s tenacity, but about her commitment to serving the American people,” Obama said.
Inexperience on the bench
One question is whether Kagan has the bench-smarts and intellectual grit to go nose-to-nose with Roberts, Justice Antonin Scalia, and the high court’s other conservatives. An even larger question is whether she has the bench-smarts and grit to consistently outmaneuver them.
Unlike all the current justices at the time of their nomination, Kagan does not have any judicial experience. She was nominated in 1999 by President Bill Clinton to a spot on the federal appeals court in Washington, but that nomination was never put to a vote.
The lack of judicial experience means she does not have a judicial paper trail that would offer insight into how she may vote as a justice. Instead, members of the Senate Judiciary Committee will focus on her scholarly writings and any public positions she has taken on issues of national concern.
If confirmed, Kagan is not expected to dramatically to shift the balance of power between the conservative and liberal wings of the court.
Analysts say that, like Stevens, a Justice Kagan would probably provide a reliable vote on the liberal side in hot-button social issues like abortion, affirmative action, and gay rights. But some liberal analysts have questioned whether she may prove too deferential to presidential authority in terrorism cases.
Potential areas of questioning
One area of potential close questioning during her Senate confirmation hearings will be her support of a ban on military recruiting on the Harvard campus, in protest of the Pentagon’s “don’t ask, don’t tell” policy for gays serving in the military. She has been quoted as calling the policy “a moral injustice of the first order.”
She is also likely to face rigorous inquiry into her views of whether the Constitution’s commerce clause imposes restrictions on Obama’s newly passed health-care reform law. A group of state attorneys general has filed suit to have the law declared unconstitutional and the issue could reach the high court.
Kagan was confirmed by the Senate as solicitor general in March 2009. The vote was 61 to 31. In contrast, Justice Sonia Sotomayor was confirmed last summer by a vote of 68 to 31.
Kagan’s nomination is not expected to trigger a filibuster threat from Senate Republicans. But the hearings could get stormy.
If the Senate follows the same schedule as last summer, confirmation hearings would be held in July with a final vote before the Senate’s August recess. This would allow Kagan time to organize her chambers at the high court before the start of the next Supreme Court term in early October.
Like Justice Sotomayor, Kagan boasts a golden résumé.
Ivy League beginnings
Born in New York, Kagan attended Princeton University, Oxford’s Worcester College, and Harvard Law School, graduating in 1986. She clerked for Judge Abner Mikva of the District of Columbia Circuit in 1986-87 and for Supreme Court Justice Thurgood Marshall in 1987-88.
From 1989 to 1991, she worked as an associate at the Washington, D.C., law firm Williams & Connolly.
In 1991, she accepted a job as an assistant professor at the University of Chicago Law School, where she met a young lecturer named Barack Obama. By 1995, she was a tenured professor.
From 1995 to 1999, she worked as a lawyer in the Clinton White House, serving as associate counsel to the president and, later, as deputy assistant to the president for domestic policy.
In 1999, she become a visiting professor at Harvard Law School and joined the Harvard faculty in 2001. Two years later, in 2003, she was named the 11th dean of the law school – the first woman to hold that post.
Six years later, she became the nation’s 45th solicitor general – and the first woman to hold that post.
Although her elevation to the high court would boost gender diversity among the justices, her presence would reduce the level of religious diversity. Justice Stevens was the only Protestant on the high court. Six of the justices are Roman Catholic and two are Jewish. Kagan is also Jewish.
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