All eyes are on the White House today for the official announcement of what’s already been reported: President Obama’s second nomination for the United States Supreme Court will be Solicitor General Elena Kagan, finally nominated to the high court (she was informally if not officially shortlisted in 2009). Much of the impetus behind the Kagan forecast was distilled Sunday in a Playbook blog post in The Politico, written by the news website’s chief political correspondent, Mike Allen.
Kagan would replace the retiring Justice John Paul Stevens, the icon of liberalism who’s retiring after 34 years on the bench.
Allen’s prediction of Kagan was the prevailing wisdom in the home stretch, and not to be ignored when its source is the subject of a New York Times Magazine article naming him as “The Man the White House Wakes Up To.” But a survey of other analysts and legal scholars suggests that some of the same issues that might have scuttled her nomination by the president may be front and center in the looming battle for confirmation by the Senate.
There’s much to recommend about Kagan. If confirmed as the 112th Supreme, she would be (at age 50) the youngest Justice on the court and its fourth woman, an unprecedented number for a court that, with precious few exceptions over the last 30 years, has been the seemingly exclusive province of men. A Justice Kagan would continue the trajectory of her personal narrative as a gender trailblazer; she was also the first female dean of Harvard Law School and the first female Solicitor General. A Princeton grad, she clerked in the U.S. appellate court in Washington and for Justice Thurgood Marshall. A champion of free-speech rights, Kagan was for five years the Associate Counsel in the Clinton administration before becoming dean of Harvard Law School.
By all accounts, hers is a first-rate intellect. Laurence Tribe, a renowned Harvard Law School professor and himself the subject of speculation for a possible seat on the court, calls her “a remarkable lawyer, administrator, scholar, colleague, teacher, advocate, and human being. I have known her ever since she was my law student and have long marveled at her unique combination of talents.” Tribe’s comments echo those made, perhaps predictably enough given scholarly association, by other colleagues at Harvard Law.
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The Politico’s Allen notes Kagan’s reputation as a conciliator. “She’s exceptionally capable at building coalitions and bringing people together — an effective counterweight to Chief Justice Roberts and Justice Scalia, and could help bring swing Justice Kennedy into coalitions,” Allen wrote Sunday, adding that she “gets along with Justice Scalia in social settings, and has a nice banter with him during arguments.” Considering Scalia’s reputation for a prickly personality, that’s no mean feat. And Kagan isn’t an appellate court judge; her presence as someone taking another route to the high court besides the Appellate Expressway may be seen as an advantage, and a reflection of Obama’s willingness to step outside the box of judicial precedent.
But there are concerns about Kagan previously voiced both by conservatives and progressives. Kagan’s absence of appellate court experience may count against her; that experience has been more and more often a trend for nomination.
Others cite her academic scholarship, or what they see as the lack of it. University of Colorado law professor Paul Campos, writing May 1 in the Daily Beast, called her “the next Harriet Miers,” a la the former Bush #43 White House Counsel whose 2005 nomination to the high court was a disaster.
“Kagan’s scholarly writings are lifeless, dull, and eminently forgettable,” Campos wrote. ”… Miers’ nomination was derailed by two complaints: that her primary qualification was that she was a ‘crony’ of the president, and that nobody knew what views she had, if any, on the vast majority of questions facing the Supreme Court. Both criticisms are just as relevant to Kagan’s potential selection.”
Some have said Kagan’s religious affiliation (she is Jewish) may work against her. If she is confirmed, Kagan would be the third Jewish Justice on a court otherwise populated by Catholics (the retiring Stevens is a Protestant). While no senator of sound mind would oppose Kagan purely for her religion, the prospect of a Supreme Court whose overall composition fails to more fully reflect the religious diversity of America — about 170 million Americans self-identify as Protestant — could give senators pause.
Kagan’s previous outspoken positions on the U.S. military’s “Don’t Ask, Don’t Tell” policy led her to oppose the presence of military recruiters on campus when she was Harvard Law dean. That stance can be expected to encounter strong reaction from a Senate that supports the nation’s troops as a reflex — a Senate rattled (like the rest of us) by the recent Times Square bombing attempt, and the subsequent revelations of the Pakistani Taliban’s involvement.
Kagan’s marital status and sexual orientation, rightly nobody’s business but her own, have been not-so-quietly discussed by some in the Beltway who harbor thoughts that she may be lesbian. Marc Ambinder in The Atlantic grasps Kagan’s dilemma: “Gay groups want to appropriate and use these public figures to advance a cause, and conservatives, many of them, consider homosexuality and gender non-conformity to be fundamental character flaws.”
And Kagan’s confirmation could be complicated by statements made before the Supreme Court in February, when she defended the law that bars providing material support to terrorist organizations — for some, defining “material support” so broadly as to arouse fears of Kagan being at odds with citizens rights to free speech and free association. Kagan proposed that a lawyer would even be committing a crime by filing an amicus (friend-of-the-court) brief or co-writing an op-ed piece on a known terrorist group’s behalf. Such a hard line may rub Senate civil libertarians the wrong way. (The court is expected rule on the case, Holder v. Humanitarian Law Project, by June.)
Ironically, one of the best reasons to recommend Kagan’s nod for the Supreme Court may be the uniformity of opposition to her as an Associate Justice; liberals, conservatives and independents alike have expressed reasons to oppose her. With a broad array of naysayers like that, and a relative absence of the paper trail of opinions historically used in an almost forensic exploration of what the nominee believes, it suggests Kagan’s not necessarily a darling of any political persuasion. In today’s superheated partisan climate, that may be the biggest factor in her favor.
