Litigation

Kagan is a ?Consensus Builder,? Obama Says

By Peter Hardin

President Obama described Supreme Court nominee Elena Kagan today as a ?consensus builder? who is known for ?her openness to a wide range of viewpoints.? If confirmed, she would succeed retiring Justice John Paul Stevens.

In making the selection of his second high court pick, the president sought ?a persuasive leader who could attract the swing vote of Justice Anthony M. Kennedy and counter what the president sees as the rightward direction of the court under Chief Justice John G. Roberts Jr.,? a New York Times article said.

?Regardless of how strong a liberal Kagan would prove to be,? reported the Washington Post, “as a former dean of Harvard Law School, Kagan practically defines legal gravitas.?

CNN legal analyst Jeffrey Toobin said the odds are in favor of Kagan’s confirmation “by a comfortable margin. The fact that the Republicans have not been breathing fire from the start suggests they are not looking for a huge fight.”

But the increasing volatility of national politics, and the emergence of the Tea Party political movement, are also factors to be considered, suggested Lyle Denniston in SCOTUSblog. He described Kagan as “a product of the nation’s liberal Northeast, born in Manhattan, and tutored in the corridors of power. She definitely will not be a poster figure for the Tea Party.”

SCOTUSblog founder Tom Goldstein forecast confirmation by the end of July, with a favorable vote of 65-35; he closely examined the political landscape and the top 10 issues she may face in his post.

Kagan’s lack of judicial experience and a few of her views, especially on military recruiting, may pose the most significant potential hurdles to her nomination, according to an analysis by CBS News.

“Solicitor General Kagan has been nominated with no judicial experience, a mere two years of private law practice, and only a year as Solicitor General…She is one of the most inexperienced nominees to the U.S. Supreme Court in recent memory,” said David McIntosh, a former Indiana Republican congressman and co-founder of the Federalist Society.

Republican Senate Leader Mitch McConnell said Republicans will zero in on whether Kagan has the “requisite experience” to sit on the Supreme Court, according to USA Today.

Sen. John Cornyn of Texas termed Obama’s “a surprising choice because she lacks judicial experience,” the Dallas Morning News reported. He also described a contrast between Kagan’s “entire professional career in Harvard Square, Hyde Park, and the DC Beltway,” and Obama’s remarks on the importance of understanding “how the world works and how ordinary people live.”

Countered Sen. Patrick Leahy, the Democratic chairman of the Senate Judiciary Committee, Kagan has “impressive legal credentials” and he had encouraged Obama “to look outside the judicial monastery to identify qualified nominees who will bring a diversity of life experience to the Court.”

Kagan’s overall record on issues is slim, and she has not taken a public stand on abortion rights, for example; she was labeled the “stealth nominee” by the Economist magazine. Yet she is likely to draw debate over her record as Harvard Law School dean, when she criticized the “don’t ask, don’t tell” policy barring openly gay service members from the military.

Kagan labeled that policy “a moral outrage” of the “first order” and declined to allow recruiters on the Massachusetts campus. When critics challenged a law permitting colleges to be stripped of federal dollars if they barred military recruiters, she joined that challenge; the law was upheld by the Supreme Court, and she rescinded Harvard’s policy.

Today, Kagan described the court as an “extraordinary institution.” It can help people in their daily lives, Politico quoted her as saying, “because law matters, because it keeps us safe, because it protects our most fundamental rights and freedoms and because it is the foundation of our democracy.” A transcript of remarks by Kagan and Obama is available here.

In Salon, a writer who is no Kagan fan, Glenn Greenwald, called on her to make her views known in the confirmation process. He underscored previous reports that Kagan has termed the Supreme Court confirmation process “”a vapid and hollow charade” and an “embarrassment,” saying senators ought to “insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues.”

Washington Post commentator Ruth Marcus deemed followed Kagan’s career path, as the headline put it, “from trailblazer to less of a big deal” and said it measured “the arc of women?s progress is measured by [her] transition from anomaly to norm.” If confirmed, Kagan would be the fourth female justice and the third sitting on the current bench.

To learn more, visit Justice at Stake?s ?Replacing Justice Stevens? page.

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