Litigation

Kagan at Center of Supreme Court Speculation

By Peter Hardin

For a day, at least, it is Solicitor General Elena Kagan who has gotten a lion’s share of news media attention as perhaps the “frontrunner” for nomination by President Obama to succeed Justice John Paul Stevens.

The government’s top appellate lawyer was the subject of a profile in the New York Times, which noted that the former Harvard Law School dean comes with no “paper trail of judicial opinions” because she has not served on the bench.

Nonetheless there are many clues as to how she would interact with colleagues if named to the court, given her service as solicitor general, the Times reported:

“Ms. Kagan appears popular with the justices, and they seem to appreciate her candor, quick mind and informal style. But she tangles regularly with Chief Justice Roberts, who has emerged as her primary antagonist, frequently criticizing her tactical decisions and trying to corner her at oral arguments.”

SCOTUSblog founder Tom Goldstein devoted in that blog a lengthy analysis to “Internet Commentary and the Nominations Process: Attacks on Elena Kagan from the right and the left.”

Meanwhile a nomination of Kagan was predicted by both Goldstein and Jenner & Block associate Lindsay Harrison at a forum  at the Catholic University of America Columbus School of Law, according to a Blog of Legal Times post.

Harrison called Kagan an “easy choice,”  portraying her as  a moderate liberal who is perceived as deferring to executive power.

In 1967, Thurgood Marshall was the last individual who had served as solicitor general to be named to the high court. During his first term, Justice Marshall declined to participate in more than half of the court’s decisions made on the merits of cases. That was presumably because he had helped the government shape its arguments in those cases, the Times reported.

You can learn more about the way the high court is expected to change, the decision confronting Obama and the lobbying that is gearing up, in a special news media update in Gavel Grab.

Full post as published by The Gavel on April 15, 2010 (boomark / email).