Litigation

Sources: Obama Will Nominate Kagan

By Peter Hardin

President Obama will announce Monday his nomination of Solicitor General Elena Kagan, 50, to succeed retiring Supreme Court Justice John Paul Stevens, according to news articles quoting sources.

If the former Harvard law school dean is confirmed, the high court would have three sitting female justices for the first time in history.

Kagan and Obama both taught at the University of Chicago Law School in the 1990s. She has served in each of the government’s three branches but would become the first justice without judicial experience in recent times–since the early 1970s–if confirmed.

That background could play both ways in the confirmation process, “allowing critics to question whether she is truly qualified while denying them a lengthy judicial paper trail filled with ammunition for attacks,” a New York Times article reported.

At times, Kagan has reached out to conservatives. When Justice Antonin Scalia was observing his 20th anniversary on the high court, she hosted a celebratory dinner for him, according to a Los Angeles Times article, and on another occasion the members of the Federalist Society handed her a standing ovation during a convention on campus.

If Obama nominates her, it will not come as a surprise; she was long identified among front-runners and often was named as his top potential choice. Here are some reflections of admirers and detractors:

• “She is very, very highly respected by everybody I know,” remarked lawyer Theodore B. Olson, who served as solicitor general under President George W. Bush. The Washington Post quoted Olson as saying Kagan was “very gracious” to conservatives at Harvard, which “isn’t always the case at law schools around the country.”
• “She is a first-rate legal scholar, but she brings much more than that,” said Walter Dellinger, who served as acting solicitor general under President Clinton, when Kagan was picked to take his old post. “She knows government, and she knows how to run institutions.”
• Law professor Paul Campos of the University of Colorado, Boulder, likened Kagan to Harriet E. Miers, the nominee of President Bush who was judged unqualified and not adequately committed to conservative judicial philosophy by a number of other conservatives; Miers’ nomination failed.
• “Among Supreme Court nominees over the last 50 years or more, Kagan may well be the nominee with the least amount of relevant experience,” said Ed Whelan, president of the Ethics and Public Policy Center.

At age 39, Kagan was nominated by Clinton to the federal appeals court in Washington, D.C., but that appointment was not voted upon by the Republican-controlled Senate.

For some liberal activists, Kagan was viewed as one of the more conservative possible candidates on Obama’s list. Presidential advisors, however, have talked about her as a “progressive who is able to find common ground with legal thinkers across the left-right spectrum,” the Los Angeles Times said.

You can learn more about Kagan from earlier Gavel Grab posts. You can also read more about her by visiting the Justice at Stake page for judicial nomination news.

Full post as published by The Gavel on May 10, 2010 (boomark / email).