WASHINGTON-On Monday President Obama named Solicitor General Elena Kagan to replace retiring Justice John Paul Stevens on the Supreme Court, kicking off months of debate and Senate hearings to investigate her eligibility.
Kagan is already feeling heat for her recent tenure as dean of Harvard Law School, where she pushed for a ban on military recruiters on campuses that receive public money. She argued for the ban in a legal brief on the grounds that the military's "Don't Ask, Don't Tell" policy was discriminatory toward homosexuals, a position the Supreme Court rejected 8-0. In 2005, Kagan told military recruiters they could not recruit on Harvard Law's campus unless they signed a pledge promising not to discriminate against gays and lesbians, which the recruiters refused to do.
President Obama, however, considers Kagan a safe pick. A lifetime lawyer and academic, Kagan as solicitor general argues cases before the Supreme Court on behalf of the government. In addition to being dean of Harvard Law School, she served as counsel in the Clinton White House for several years. She also was a professor at the University of Chicago Law School in the early 1990s, where she met fellow teacher Barack Obama.
Seven Republicans voted for her Senate confirmation last year as solicitor general, but Senate Republican leader Mitch McConnell said that the "standard of scrutiny is clearly much higher now." One of the top Senate Republicans, Jon Kyl, who voted for her confirmation last year, told CNN Monday that a filibuster of her confirmation is unlikely, while McConnell told The Hill it was "way too early" to decide whether Kagan would need 60 votes for confirmation.
Kagan's confirmation, President Obama said Monday, would create "a court that would be more inclusive, more representative, more reflective of us as a people than ever before." Though she would increase the number of women justices to three, the court would be composed entirely of graduates from Ivy League law schools. And if Kagan is confirmed, the court will have no Protestant justices-all would be either Catholic or Jewish.
Despite not having a judicial record, she wrote in a 1995 book review on confirmation hearings that judicial nominees should have to explain their judicial philosophy. In the University of Chicago Law Review, she wrote that a nominee should answer questions about all that "concerns the votes she would cast, the perspective she would add (or augment), and the direction in which she would move the institution," including positions on issues like free speech or gender discrimination. However, last year during her confirmation hearings, she said she no longer holds that position.
I watched Kagan in the high court argue the government's side against Citizens United, a case she lost badly. (See "A new playing field," Jan. 21, 2010.) The court ruled against the government and said that corporations could spend money in elections, one of the broadest rulings the court has issued since John Roberts became chief justice. Kagan sensed in the oral arguments that there wasn't a chance the court would rule in the government's favor, and wryly said to the justices, "If you're suggesting if the government has a preference on how to lose if it loses. . . ." The courtroom filled with laughter. She had that conversational easiness with the justices, and the solicitor general is often referred to as "the tenth justice."
One incident in the Citizens United case also may provide Republicans with ammo for criticism: Justice Anthony Kennedy referenced several past Supreme Court cases in the course of asking Kagan a question during the oral arguments. Kagan didn't know the cases. Later at Georgetown University, she said, "There was a look of panic on my face." She added that Kennedy explained the cases as he finished asking his questions, showing "sensitivity to my plight." But the exchange raised questions in legal circles about her readiness for the job on the bench, which requires justices to know those cases. At 50, she would be the youngest member of the court.
Every currently serving Supreme Court justice is a former federal appeals court judge. Chief Justice William Rehnquist, appointed in 1972, was the last justice to have no background as a judge. Kagan did work in the high court from 1987 to 1988 as a clerk to Justice Thurgood Marshall. President Clinton also nominated her to serve as a circuit court judge in 1999, but the Senate never held a confirmation hearing for her.
Kagan is President Obama's second nomination to the high court. The Senate confirmed Justice Sonia Sotomayor last summer and will likely confirm Kagan before the high court's next session begins in October.