NBC News has just confirmed and is reporting that President Barack Obama plans to nominate Solicitor General Elena Kagan to replace retiring Supreme Court Justice John Paul Stevens.
Obama is expected to announce his choice at the White House with Kagan at his side Monday morning, with the goal of Senate confirmation hearings before the end of June.
Obama appears to be aiming for a relatively easy confirmation process by picking the 50-year-old Kagan, who won support from Republicans like Sen. Orrin Hatch of Utah and John Kyl of Arizona in the 61-31 vote to confirm her for her current post 14 months ago. But with the higher stakes involved in a Supreme Court nomination, and party animosities intensifying as the 2010 elections approach, Kagan is unlikely to win as many votes this time around. (For a National Law Journal interview with Kagan last year, go to this link.)
Kagan, a former Harvard Law School dean who also taught at the University of Chicago, served in the Clinton White House and as a special counsel for the Senate Judiciary Committee, and in 1999 was nominated to a judgeship on the U.S. Court of Appeals for the D.C. Circuit. Her nomination never received a hearing or a vote. At the beginning of her career after graduating from Harvard Law School, Kagan clerked for appeals judge Abner Mikva and Justice Thurgood Marshall, then worked as an associate at Williams & Connolly in Washington.
With a relatively short paper trail on controversial legal issues, Kagan has won praise and criticism from both the right and the left. Other candidates like Judge Diane Wood of the U.S. Court of Appeals for the 7th Circuit might have had a harder time winning confirmation because of their documented stances on issues such as abortion.
If confirmed, Kagan will be the first new justice without prior judicial experience since Lewis Powell Jr. and William Rehnquist joined the Court in 1972. By joining Justices Ruth Bader Ginsburg and Sonia Sotomayor on the Court, her ascendancy would mark the first time in the Court’s history that three women serve on the Court simultaneously.
She scores lower on other kinds of diversity, however. She’d be the fifth Harvard Law School grad on the Court (along with John Roberts Jr., Anthony Kennedy, Antonin Scalia, and Stephen Breyer – and Ginsburg attended Harvard too, though she graduated from Columbia Law School.) She would be the fourth justice raised in New York City (with Scalia, Ginsburg and Sotomayor.) Staten Island will be the only New York City borough not represented on the high court. If she is confirmed, the Court will have no Protestant members for the first time in history; she is Jewish, as are Breyer and Ginsburg. The other six justices are Catholics.
Age may also have been a factor for Obama, as it has been for Republican presidents starting with Ronald Reagan, who sought to nominate younger lawyers to the bench for longer-lasting impact. Kagan just turned 50, the same age as Roberts when he became chief justice in 2005. She would be the youngest justice on the current Court, replacing Stevens, who at age 90 is the oldest.
In anticipation of Kagan’s nomination, flashpoints over her views and record have been emerging for months. Liberals are voicing disappointment over the scant evidence of progressive views in her past, and her embrace of Bush-era legal positions in her one-year tenure as solicitor general. (For a look at criticisms of her tenure as solicitor general, see this story.)
Conservatives are targeting her days as Harvard Law School dean from 2003 to 2009, and her support for barring military recruiters from campus because of the “Don’t Ask, Don’t Tell” policy on gays in the armed services. She called the policy “a profound wrong -- a moral injustice of the first order” and joined in a legal challenge to the law requiring campus access by military recruiters. But she ultimately allowed military recruiters so as to not lose federal funding.
Kagan’s tenure at Harvard has also been praised by conservatives who note she hired more right-leaning professors than prior deans had. Liberals for their part say she’ll be an effective new member of the Court’s liberal wing. “Her views are fundamentally progressive,” said former Clinton Justice Department official Walter Dellinger.
New lines of attack have focused on her failure to hire minorities to Harvard faculty positions, and her service on a board that advised Goldman Sachs and its clients. On the Harvard issue, the White House has responded with numbers showing that she made a record number of job offers to minority and female scholars.
On a wide range of legal issues Kagan’s views are unknown. “Kagan's absolute silence over the past decade on the most intense constitutional controversies speaks very poorly of her," wrote Glenn Greenwald in a widely noted Salon piece that voiced concern that Kagan would actually move the Court to the right.
Kagan’s stances as solicitor general, which show little change from Bush administration positions, have also provoked criticism from human rights advocates. But her defenders point to the long tradition of continuity across administrations by solicitors general, as well as the expectation by the Court that the government will not abruptly change positions.
She arrived in the SG’s office last March without any experience as an appellate advocate, but she has now argued six cases with relative ease, winning one and losing one so far.
Similarly, her lack of judicial experience will be easy to overcome, said American University Washington College of Law professor Steve Wermiel. Noting that Kagan once clerked for the high court, Wermiel said, “Her learning curve shouldn’t be huge. She understands the Court, and is in as good a position to hit the ground running as any non-judge in the country.”