Federal Judiciary

Nomination round-up

By Akin Gump Supreme Court Practice Group

With the news that the President plans to nominate Elena Kagan to the Supreme Court breaking last night, prior to the official announcement this morning at 10 a.m., stories about Kagan now top the headlines in almost every major national newspaper.

Since our most recent round-up after the news of the nomination leaked last night, more detailed coverage of Kagan has appeared. We think that two pieces in particular will be especially informative to our readers.  At the New York Times, Katharine Q. Seelye, Lisa W. Foderaro and Sheryl Gay Stolberg have a lengthy feature on Kagan’s life and career, describing her throughout as “charting a careful and, some might say, calculated path ? never revealing too much of herself, never going too far out on a political limb.”  Robert Barnes and Anne Kornblut at the Washington Post have an overview of Kagan’s experience and the issues that might arise during her confirmation.  At the Wall Street Journal, Dionne Searcey describes Kagan’s unique “popular touch” in terms of her rise through a career of education, first as a diligent student at Princeton, later as an academic at the University of Chicago, and finally as the dean of Harvard Law.

Kagan is currently the Solicitor General representing the United States before the Supreme Court, after a six-year stint as dean of Harvard Law School.  USA Today’s Joan Biskupic notes that Kagan is “the first appointee in nearly 40 years who was not previously a judge.”  In response to concerns that Kagan has no experience as a judge, Robert Barnes at the Washington Post observes that she also took on the job of Solicitor General without any experience as an advocate at the Court.   Ed Whelan at the National Review Online’s Bench Memos blog, in a post summarizing his weeks of posting on Kagan, opines that “Kagan may well have less experience relevant to the work of being a justice than any justice in the last five decades or more.”  Meanwhile, Emily Bazelon at Slate characterizes Kagan’s lack of judicial experience an “asset” for the confirmation process, because she has thereby left no record of her views on many legal issues.

Writing at SCOTUSblog about some of the political challenges that Elena Kagan is likely to face on the bench, Lyle Denniston predicts that, although Kagan is unlikely to enjoy Justice Stevens’ sway with Justice Kennedy, the Court’s swing voter, “Kagan, just because she is only 50, could share the perspective of her emergent generation with her older colleagues, and perhaps persuade them…”

Greg Stohr of Bloomberg highlights Kagan’s reputation as a “bridge builder” for bringing conservative law professors to the largely liberal Harvard Law School faculty and befriending conservative colleagues there.  The Associated Press (via NPR) also notes Kagan’s “reputation for bringing together people of competing views and earning their respect.”

News and commentary frequently note that Kagan has a scant “paper trail” on controversial issues, and Rick Hasen at his Election Law Blog remarks that “the only clues we may get from SG Kagan about her election law views will come from questioning at the judiciary committee hearing.”

At the Volokh Conspiracy, Jim Lindgren re-visits Kagan’s speech at a Federalist Society gathering, in which she made clear that the audience members were “not my people.”  Because of Kagan’s “relative openness to non-liberal views of the law,” among other qualities, Ilya Somin, also at the Volokh Conspiracy, writes that “Kagan is as likely to be better from any non-liberal point of view than anyone else Obama is likely to choose.”  Published just a bit before the nomination leaked, Debra Cassens Weiss at the ABA Journal has a detailed rebuttal of claims that Kagan is anti-military and favors strong presidential power.

PrawfsBlawg’s Dan Markel defends Kagan against criticisms that her faculty hires as dean of Harvard Law School lacked racial and gender diversity.

At Newsweek’s The Gaggle blog, Daniel Stone predicts that Kagan will be quickly confirmed, but he also notes two factors weighing against her: a book review she wrote in 1995 arguing that Supreme Court nominees ought to frankly answer substantive questions about their legal views, and the possibility that she would recuse from many cases due to her involvement in them as Solicitor General.  At Cato@Liberty, Ilya Shapiro foresees the confirmation process as a “perfect vehicle for a public airing” of debates over the meaning of the Constitution, in part because he thinks Kagan should be obliged to answer questions about her constitutional views as she counseled in that 1995 article.

Shriram Harid at the Huffington Post represents the story of Kagan’s life in a series of sixteen photographs depicting events that were “turning points.”  The Washington Post also has a photo gallery of then nominee.

Peter Baker of the New York Times, NPR, the BBC, and the ABA have additional coverage.

Josh Blackman, at his blog, points out that FantasySCOTUS.net accurately predicted the nominee.

Finally, all of C-SPAN’s video footage of Kagan is now collected on one webpage.  And SCOTUSreport, by the Federalist Society, collects materials and media coverage on Kagan.

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