This morning, President Obama officially nominated Solicitor General Elena Kagan to replace retiring Supreme Court Justice John Paul Stevens.
By any objective measure, Kagan, age 50, is a woman of stellar professional credentials. She earned degrees from Princeton, Oxford and Harvard Law School. She clerked for Justice Thurgood Marshall, worked as a Senate staffer, and also worked in the White House under President Bill Clinton. She was the first female dean of Harvard Law School and is currently serving as the first female Solicitor General in the Obama White House. She was nominated to the Court of Appeals by President Clinton but due to obstruction by Senate Republicans, her nomination never came to a vote.
In 2009, according to Politifact, when Obama tapped Kagan to be his first solicitor general, she was confirmed on a 61 to 31 vote. “She was supported by Democrats and a handful of Republicans. The GOP supporters included Tom Coburn of Oklahoma, Susan Collins of Maine, Judd Gregg of New Hampshire, Orrin Hatch of Utah, Jon Kyl of Arizona, Richard Lugar of Indiana and Olympia Snowe of Maine.” In addition, according to the Washington Post, she “had the support of each of the last eight men who have held the title, Democrats and Republicans alike, starting with President Ronald Reagan’s solicitor general, Charles Fried, who calls her “awesomely intelligent.””
The New York Times notes that “her inexperience as a judge makes her a rarity in modern times, but until the 1970s many Supreme Court justices came from outside the judiciary, including senators, governors, cabinet secretaries and even a former president.”
Tom Goldstein of SCOTUSblog writes:
Kagan is uniformly regarded as extremely smart, having risen to two of the most prestigious positions in all of law: dean of Harvard Law School and Solicitor General.
In government and academia, she has shown a special capacity to bring together people with deeply held, conflicting views. On a closely divided Supreme Court, that is an especially important skill.
With her nomination now public, however, and the possiblity of a lifetime appointment to the Supreme Court, some conservatives who previously voted for her as Solicitor General now are vowing a “fresh look.”
At least two Republicans who voted for Kagan’s confirmation last year — Senate Minority Whip Jon Kyl (Ariz.) and Sen. Orrin Hatch (Utah) — said Monday that they will not be bound by their previous support and called for a lengthy, deliberate confirmation process.
“As I made clear when I supported her confirmation as solicitor general, a temporary political appointment is far different than a lifetime appointment to the Supreme Court,” Kyl said. “Every Senator has a constitutional duty to scrutinize judicial nominees, and I will take great care in examining her record to ensure that she possess the qualities the American people expect in our Supreme Court justices. I expect Senate Democrats will allow ample time for the Senate to conduct this vetting process.”
Reaction to Kagan’s nomination even among progressives has been mixed. The choice of Kagan has been treated with some caution by women’s groups and outright skepticism or criticism by other progressives.
Little is known about Kagan’s positions on the right to choose abortion or broader reproductive and sexual health issues, and the reaction of women’s groups has been tempered by the lack of a track record. In a press statement, Terri O’Neill, president of the National Organization for Women (NOW):
“While we are pleased to see the second woman in a row nominated to the court, gender alone is not enough. Justice Stevens was a clear champion of social justice, who will leave behind a proud liberal legacy. We are eager to learn that Elena Kagan, too, will stand for equality and fairness across the board. [H]aving never served as a judge herself, it is unclear where Kagan stands on most of NOW’s key issues.”
In a similar statement, Nancy Keenan of NARAL pro-choice America said:
“President Obama has selected a nominee with a sound record of legal accomplishment. We call on the Senate to give Solicitor General Kagan a fair hearing and look forward to learning more about her views on the right to privacy and the landmark Roe v. Wade decision. President Obama recently reiterated his strong support for constitutional principles that protect women’s rights. We will work to ensure Americans receive clear answers to questions regarding these principles as this nomination process moves forward.”
By contrast, a statement by the National Women’s Law Center was unequivocally supportive:
“We have known Elena Kagan for many years and have the greatest respect for her outstanding accomplishments, considerable legal skills, and fair-mindedness,” said co-president Marsha Greenberger.
Others point out that Kagan has a solid history as a dean and in other areas of her career. As Dean of Harvard Law School, Kagan made many changes (e.g. updating the law school curriculum) and was highly popular among students. She raised large sums of money for the school, and is noted as having healed rifts between liberal and conservative groups within the school.
She also famously barred military recruiters from a campus facility because she arguted that Don’t Ask, Don’t Tell, the ban on openly gay men and lesbians serving in the military violated the school’s anti-discrimination policy. Goldstein details the history on this issue at SCOTUSblog. This act has earned her praise from advocates of human rights/GLBT rights but criticism from conservatives.
But concerns about Kagan’s broader record also have been raised by numerous columnists and analysts. Writing for Salon, for example, James Doty, a writer and lawyer, critiqued Kagan’s performance in the most recent cases argued by Kagan as Solicitor General. In his critique, he questions whether, even assuming a progressive judicial bent, Kagan could be effective in persuading more conservative justices to agree with her.
Largely overlooked…is an issue that is ultimately more far-reaching: whether Kagan would be an effective liberal on the court — that is, whether she has the skills to win over Anthony Kennedy, who casts the decisive vote in nearly all of the court’s most closely divided cases, and whether she could match wits with Antonin Scalia and John Roberts, the court’s conservative fire-breathers.
Glenn Greenwald has argued against Kagan’s nomination for some weeks in part because he asserts the court with Kagan will become more, not less conservative.
The prospect that Stevens will be replaced by Elena Kagan has led to the growing perception that Barack Obama will actually take a Supreme Court dominated by Justices Scalia (Reagan), Thomas (Bush 41), Roberts (Bush 43), Alito (Bush 43) and Kennedy (Reagan) and move it further to the Right. Joe Lieberman went on Fox News this weekend to celebrate the prospect that “President Obama may nominate someone in fact who makes the Court slightly less liberal,” while The Washington Post‘s Ruth Marcus predicted: “The court that convenes on the first Monday in October is apt to be more conservative than the one we have now.” Last Friday, I made the same argument: that replacing Stevens with Kagan risks moving the Court to the Right, perhaps substantially to the Right (by “the Right,” I mean: closer to the Bush/Cheney vision of Government and the Thomas/Scalia approach to executive power and law).
And others have criticized the lack of diversity evident in the faculty of Harvard Law School under Kagan despite the “unprecedented expansion” of staff made during her tenure. In a compelling piece on Salon, law professors Guy-Uriel Charles, Anupam Chander, Luis Fuentes-Rohwer, and Angela Onwuachi-Willig examine this record:
The first woman Dean of Harvard Law School had presided over an unprecedented expansion of the faculty — growing it by almost a half. She had hired 32 tenured and tenure-track academic faculty members (non-clinical, non-practice). But when we sat down to review the actual record, we were frankly shocked. Not only were there shockingly few people of color, there were very few women. Where were the people of color? Where were the women? Of these 32 tenured and tenure-track academic hires, only one was a minority. Of these 32, only seven were women. All this in the 21st Century.
Finally, concerns have been raised about the number of cases from which Kagan will have to recuse herself in the early part of her Supreme Court tenure due to her prior involvement as Solicitor General. Goldstein of ScotusBlog estimates that she would have to sit out on 13 to 15 matters. Others have argued it may well be significantly more than that.
The only thing that seems certain is that court analysts and advocates on both sides will be watching closely for signals as to Kagan’s positions on current and critical issues of the day, as so little is clearly evidence from her record.